<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER 17, 1997
REGISTRATION NO. 333-4576
PURSUANT TO RULE 401(e) UNDER THE SECURITIES ACT OF 1933, THE PROSPECTUS
CONTAINED IN THIS POST-EFFECTIVE AMENDMENT HAS BEEN PREPARED IN ACCORDANCE WITH
THE REQUIREMENTS OF FORM S-3.
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------------
POST-EFFECTIVE AMENDMENT NO. 2 TO
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------------
FURR'S/BISHOP'S, INCORPORATED
(Exact name of Registrant as specified in its charter)
---------------------
<TABLE>
<C> <C> <C>
DELAWARE 5812 75-2350724
(State or other jurisdiction (Primary Standard Industrial (I.R.S. Employer
of incorporation or Classification Code Number) Identification No.)
organization)
</TABLE>
---------------------
6901 QUAKER AVENUE
LUBBOCK, TEXAS 79413
(806) 792-7151
(Address, including zip code, and telephone number, including
area code, of Registrant's principal executive offices)
THEODORE J. PAPIT
FURR'S/BISHOP'S, INCORPORATED
6901 QUAKER AVENUE
LUBBOCK, TEXAS 79413
(806) 792-7151
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
---------------------
with a copy to:
KENNETH L. STEWART, ESQ.
FULBRIGHT & JAWORSKI L.L.P.
2200 ROSS AVENUE, SUITE 2800
DALLAS, TEXAS 75201
(214) 855-8000
---------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE OF SECURITIES TO THE PUBLIC:
From time to time after this Registration Statement becomes effective.
If the securities being registered on this Form are being offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box: [X]
================================================================================
<PAGE> 2
PROSPECTUS
FURR'S/BISHOP'S, INCORPORATED
42,060,043 SHARES OF COMMON STOCK
---------------------
This Prospectus relates to the public offering by the selling security
holders (the "Selling Security Holders") of 42,060,043 shares (the "Shares") of
common stock, par value $.01 per share ("Common Stock"), of Furr's/Bishop's,
Incorporated, a Delaware corporation (the "Company").
On December 15, 1997, the last reported sale price of a share of Common
Stock on the New York Stock Exchange was $ 9/16.
SEE "RISK FACTORS" BEGINNING ON PAGE 4 FOR A DISCUSSION OF CERTAIN RISKS
INVOLVED IN THE PURCHASE OF THE SHARES.
---------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE COMMISSION OR
ANY STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS
PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
---------------------
The Selling Security Holders directly or through agents, dealers or
underwriters may sell the Shares from time to time on terms to be determined at
the time of sale. To the extent required, the specific Shares to be sold, the
names of the Selling Security Holders, the respective purchase prices and public
offering prices, the names of any agent, dealer or underwriter and applicable
commissions or discounts with respect to a particular offering will be set forth
in an accompanying Prospectus Supplement or, if appropriate, a post-effective
amendment to the Registration Statement of which this Prospectus is a part. See
"Plan of Distribution." Each of the Selling Security Holders reserves the sole
right to accept or to reject, in whole or in part, any proposed purchase of the
Shares.
The Company will not receive any proceeds from this offering but, by
agreement, will pay substantially all expenses of this offering, other than the
commissions or discounts of underwriters, dealers or agents, but including the
fees and disbursements of one counsel to certain of the Selling Security
Holders. The Selling Security Holders, and any underwriters, dealers or agents
that participate with the Selling Security Holders in the distribution of the
Shares, may be deemed to be "underwriters" within the meaning of the Securities
Act of 1933, as amended (the "Securities Act"), and any commissions received by
them and any profit on the resale of the Shares purchased by them may be deemed
to be underwriting commissions or discounts under the Securities Act. See "Plan
of Distribution" for a description of indemnification arrangements between the
Company and the Selling Security Holders and indemnification arrangements for
underwriters.
---------------------
The date of this Prospectus is December 17, 1997.
<PAGE> 3
NO PERSON IS AUTHORIZED IN CONNECTION WITH ANY OFFERING MADE HEREBY TO GIVE
ANY INFORMATION OR TO MAKE ANY REPRESENTATION OTHER THAN THOSE CONTAINED IN THIS
PROSPECTUS AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATION MUST NOT BE
RELIED UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY. THIS PROSPECTUS DOES NOT
CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO PURCHASE ANY
SECURITY OTHER THAN THE SECURITIES OFFERED HEREBY, NOR DOES IT CONSTITUTE AN
OFFER TO SELL OR A SOLICITATION OF AN OFFER TO PURCHASE ANY SECURITIES OFFERED
HEREBY TO ANY PERSON IN ANY JURISDICTION IN WHICH IT WOULD BE UNLAWFUL TO MAKE
SUCH OFFER OR SOLICITATION TO SUCH PERSON. NEITHER THE DELIVERY OF THIS
PROSPECTUS NOR ANY DISTRIBUTION OF THE SECURITIES OFFERED HEREBY SHALL, UNDER
ANY CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THE INFORMATION SET FORTH HEREIN
IS CORRECT AS OF ANY DATE SUBSEQUENT TO THE DATE HEREOF.
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, proxy statements, and other information with the
Securities and Exchange Commission (the "Commission"). The Registration
Statement, the exhibits and schedules forming a part thereof, and the reports,
proxy statements and other information filed by the Company with the Commission
in accordance with the Exchange Act can 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 at Citicorp Center, 500 West Madison Street, Chicago, Illinois
60661 and Seven World Trade Center, 13th Floor, New York, New York 10048 and are
available at http://www.sec.gov on the world wide web. Copies of such material
also can be obtained from the Public Reference Section of the Commission at
Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549 and at its
public reference facilities in New York, New York and Chicago, Illinois at
prescribed rates. In addition, material filed by the Company can also be
inspected at the offices of the New York Stock Exchange ("NYSE"), 20 Broad
Street, Seventh Floor, New York, New York 10005.
The Company has filed with the Commission a Registration Statement (of
which this Prospectus is a part) on Form S-1 (together with any amendments
thereto, the "Registration Statement") under the Securities Act with respect to
the Shares. Pursuant to Rule 401(e) under the Securities Act, this Prospectus
has been prepared in accordance with the requirements for a Registration
Statement on Form S-3. This Prospectus does not contain all the information set
forth or incorporated by reference in the Registration Statement and the
exhibits and schedules relating thereto, certain portions of which have been
omitted as permitted by the rules and regulations of the Commission. For further
information, reference is made to the Registration Statement and the exhibits
filed or incorporated as a part thereof, which are on file at the offices of the
Commission and may be obtained upon payment of the fee prescribed by the
Commission, or may be examined without charge at the offices of the Commission.
Statements contained in this Prospectus as to the contents of other documents
referred to herein are not necessarily complete, and in each instance reference
is made to the copy of such contract or other document filed as an exhibit to
the Registration Statement or such other document, and each such statement is
qualified in all respects by such reference.
AFFILIATE FILING
Cafeteria Operators, L.P., a Delaware limited partnership and direct and
indirect wholly owned partnership subsidiary of the Company ("Cafeteria
Operators"), has filed post-effective amendments to a separate Registration
Statement (File No. 333-4578) with the Commission with respect to up to
$31,620,870.04 aggregate principal amount of 12% Senior Secured Notes ("12%
Notes"), which may be offered from time to time for the accounts of certain
holders of the 12% Notes. Such holders include certain of the Selling Security
Holders.
1
<PAGE> 4
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents, which have been filed with the Commission by the
Company, are incorporated herein by reference and made a part hereof:
(i) Annual Report on Form 10-K for the year ended December 31, 1996;
(ii) Amendment No. 1 on Form 10-K/A to Annual Report on Form 10-K for the
year ended December 31, 1996;
(iii) Amendment No. 2 on Form 10-K/A to Annual Report on Form 10-K for the
year ended December 31, 1996;
(iv) Quarterly Report on Form 10-Q for the 13 weeks ended April 1, 1997;
(v) Quarterly Report on Form 10-Q for the 13 weeks ended July 1, 1997;
(vi) Quarterly Report on Form 10-Q for the 13 weeks ended September 30,
1997; and
(vii) Registration Statement on Form 8-A (No. 1-10725), filed November 30,
1995.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14
and 15(d) of the 1934 Act subsequent to the date of this Prospectus and prior to
the termination of the offering of Common Stock to be made hereunder shall be
deemed to be incorporated by reference herein and to be a part hereof from the
date of filing thereof. Any statement contained herein or in a document
incorporated or deemed incorporated by reference herein shall be deemed to be
modified or superseded for all purposes of this Prospectus 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
Prospectus.
The Company will provide, without charge, to each person to whom a copy of
this Prospectus is delivered, upon the written or oral request of such person, a
copy of any or all of the documents incorporated by reference in this Prospectus
(other than exhibits and schedules thereto, unless such exhibits or schedules
are specifically incorporated by reference into the information that this
Prospectus incorporates). Written or telephonic requests for copies should be
directed to the Company's principal office: Furr's/Bishop's, Incorporated, 6901
Quaker Avenue, Lubbock, Texas 79413, Attention: Alton R. Smith (telephone: (806)
792-7151).
2
<PAGE> 5
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
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<S> <C>
Risk Factors.......................... 4
Recent Developments................... 6
Use of Proceeds....................... 7
Background; Restructuring............. 7
Selling Security Holders.............. 8
</TABLE>
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Plan of Distribution.................. 10
Description of Capital Stock.......... 11
Legal Matters......................... 12
Experts............................... 12
</TABLE>
3
<PAGE> 6
RISK FACTORS
In considering the matters set forth in this Prospectus, prospective
investors should carefully consider, among other things, the significant factors
described below which are associated with the Shares before making an investment
in the Shares.
CAPITAL EXPENDITURES
The Company may make significant capital expenditures in each of the next
three fiscal years to remodel existing cafeterias, implement special programs to
enhance customer traffic and develop new restaurants. The Company believes that
its capital expenditure program is necessary to enable the Company and its
subsidiaries to increase revenues and attain profitability in order to service
their respective remaining obligations under outstanding debt instruments. Such
obligations and debt instruments limit the Company's ability to make future
capital expenditures. There can be no assurance that the Company will be able to
complete its capital expenditure program, service its financial obligations and
meet the financial covenants contained in outstanding debt instruments. See
"Management's Discussion and Analysis of Results of Operations and Financial
Condition," included in the Company's most recent Annual Report on Form 10-K and
its most recent Quarterly Report on Form 10-Q, if any, after such Annual Report
on Form 10-K, previously filed with the Commission and incorporated by reference
herein (the "Latest 10-K" and the "Latest 10-Q," respectively).
LEVERAGE
As of September 30, 1997, the Company's total consolidated indebtedness was
approximately $69.1 million (including approximately $23.4 million of interest
accrued through maturity). At such date, the Company's stockholders' deficit was
approximately $41.6 million and the Company's consolidated total assets were
approximately $66.0 million.
In addition to certain customary affirmative covenants, the Indenture
(hereinafter defined) contains covenants that, among other things, restrict the
ability of Cafeteria Operators and each of its subsidiaries, subject to certain
exceptions contained therein, to incur debt, make distributions to the Company
or transfer assets. The restrictions may limit the ability of the Company to
expand its business and take other actions that the Company considers to be in
its best interest.
The Company and its subsidiaries presently have significant annual interest
expense payment obligations under outstanding debt instruments. The ability of
the Company and its subsidiaries to satisfy their respective obligations are
dependent upon their future performances, which will be subject to financial,
business and other factors affecting the business and operations of the Company,
including factors beyond the control of the Company and its subsidiaries, such
as prevailing economic conditions. Over the long term, the Company's performance
will depend on, among other things, the Company's ability to implement
successfully its expansion strategies and control costs. See
"Business -- Capital Expenditure Program" in the Latest 10-K and "Management's
Discussion and Analysis of Results of Operations and Financial
Condition -- Liquidity and Capital Resources," included in the Latest 10-K and
the Latest 10-Q. If the Company is unable to comply with the terms of
outstanding debt instruments and any future debt instruments and fails to
generate sufficient cash flow from operations in the future, it may be required
to refinance all or a portion of its existing debt or to obtain additional
financing. There can be no assurance that any such refinancing would be possible
or that any additional financing could be obtained, particularly in view of the
Company's anticipated high levels of debt and the fact that a significant
portion of Cafeteria Operators' assets, representing substantially all of the
Company's consolidated tangible assets, have been pledged as collateral to
secure indebtedness. These factors could have a material adverse effect on the
marketability and value of the Shares.
OWNERSHIP OF THE COMPANY
As a result of the Restructuring (hereinafter defined) and subsequent sales
of Common Stock by the Selling Security Holders, the Selling Security Holders
own approximately 86.5% of the outstanding Common Stock. The Selling Security
Holders, however, are 14 separate holders (or groups of affiliated holders) who
are entitled to, and who the Company believes intend to, vote separately upon
all matters submitted to a vote of
4
<PAGE> 7
security holders of the Company (including any mergers, sales of all or
substantially all of the assets of the Company or Cafeteria Operators and going
private transactions). To the Company's knowledge there are no agreements,
arrangements or understandings among any of the Selling Security Holders
concerning the voting or disposition of any of such Common Stock or any other
matter regarding the Company or which might be the subject of a vote of the
Company's stockholders. Also, no Selling Security Holder (or affiliated group of
Selling Security Holders) is a beneficial owner of more than 18% of the Common
Stock; accordingly, no single Selling Security Holder or affiliated group could
itself approve any matter regarding the Company or which might be the subject of
a vote of the stockholders. Certain of the Selling Security Holders, who
currently hold 12% Notes (hereinafter defined), were former 11% Noteholders
(hereinafter defined).
In addition, as a part of the Restructuring, certain 11% Noteholders
designated for nomination certain of the members of the Board of Directors of
the Company. These directors were duly nominated and elected by holders of the
former classes of the Company's capital stock at a meeting of the stockholders
held prior to certain 11% Noteholders having exercised the Put Option
(hereinafter defined). Certain of these directors continue to serve on the Board
of Directors, and such directors may have the power to direct the Company's
operations. None of such directors, however, is affiliated with any former 11%
Noteholder and to the Company's knowledge there is no agreement, understanding
or arrangement among any of the former 11% Noteholders or any such director
concerning any matter regarding the governance of the Company. In addition, E.W.
Williams, Jr., a director of the Company, and KL Group, Inc., a corporation
controlled by Kevin E. Lewis, Chairman of the Board of Directors of the Company,
are Selling Security Holders.
HISTORY OF OPERATING LOSSES
Through fiscal year 1995, the Company had not reported net income since its
inception in 1991. The Company has reported net losses from operations of
approximately $2.4 million, $166.1 million and $21.3 million for the fiscal
years 1992, 1993 and 1994, respectively. After giving effect to the
Restructuring, but before the extraordinary credit associated therewith, the
Company reported net loss from operations of approximately $38.9 million for
fiscal year 1995. Although the Company reported net income from operations of
$8.4 million for fiscal year 1996, the Company reported net loss from operations
of $6.5 million for the 39-week period ended September 30, 1997.
NO ANTICIPATED STOCKHOLDER DISTRIBUTIONS
The Company does not anticipate paying cash distributions to stockholders
in the foreseeable future. The Company's ability to pay cash dividends on the
Common Stock will depend on the future performance of the Company and its
subsidiaries. Such future performance will be subject to financial, business and
other factors affecting the business and operations of the Company and its
subsidiaries, including factors beyond the control of the Company and its
subsidiaries, such as prevailing economic conditions. In addition, under terms
of the Indenture, Cafeteria Operators and its subsidiaries may not distribute
funds to the Company, unless, immediately after giving effect to such
distribution, (i) no default or event of default shall have occurred or be
continuing and (ii) the aggregate amount of all outstanding restricted payments
and restricted investments as of such date does not exceed the difference of (a)
fifty percent (50%) of consolidated net income for the period beginning January
2, 1996 and ending the last day of the last full fiscal quarter and (b)(x) one
hundred percent (100%) of consolidated net income for the last four full fiscal
quarters (or, under certain circumstances, a shorter period) if consolidated net
income for such period is a loss, or (y) zero, if consolidated net income for
such period is not a loss. The Company believes that any refinancing or other
indebtedness incurred by the Company or its subsidiaries would contain
restrictions on the payment of dividends and making of cash distributions on
equity securities generally similar to those in the Indenture. See "Management's
Discussion and Analysis of Financial Condition and Results of
Operations -- Liquidity and Capital Resources," included in the Latest 10-K and
the Latest 10-Q.
HOLDING COMPANY STRUCTURE
The Company is a holding company with no operations, the principal assets
of which are general and limited partnership interests in and capital stock of
its subsidiaries. The operations of the Company are
5
<PAGE> 8
conducted through its subsidiaries, including Cafeteria Operators and,
therefore, the Company is and will continue to be dependent on dividends,
distributions or other intercompany transfers of funds from its subsidiaries to
allow the Company to meet its obligations and pay dividends, if any, on the
Common Stock. The Indenture contains restrictions on the ability of Cafeteria
Operators to make distributions or other intercompany transfers to the Company,
and it is likely that any refinancing or other indebtedness incurred by
subsidiaries will contain similar restrictions. There can be no assurance that
funds generated from future operations of the Company and its subsidiaries will
be sufficient to meet debt service and other obligations or that the
performances of its subsidiaries will be sufficient to satisfy the financial
covenants contained in the Indenture or to allow the Company to pay dividends on
the Common Stock. In addition, the Company does not anticipate cash being
available to pay dividends in the foreseeable future because Cafeteria Operators
will retain its earnings to fund capital expenditures.
SHARES AVAILABLE FOR FUTURE ISSUANCE
As part of the Restructuring, the Company issued to stockholders an
aggregate of approximately 40,527,933 five-year warrants, each whole warrant
being entitled to purchase one share of Common Stock at an exercise price of
$.074 per Share (the "Warrants"). The Warrants expire on January 2, 2001. After
giving effect to the fifteen-to-one reverse stock split on March 22, 1996, the
Warrants are exercisable into approximately 2,701,862 shares of Common Stock at
an exercise price of $1.11 per share. In addition, the Company has 2,702,720
shares of Common Stock, after giving effect to the reverse stock split,
available for issuance pursuant to the 1995 Stock Option Plan of the Company. No
prediction can be made as to the effect, if any, that future issuances of
shares, the availability of shares for future issuance or the Warrants may have
on the prevailing market prices of the Common Stock from time to time.
The Selling Security Holders own approximately 86.5% of the outstanding
Common Stock. Any of the Selling Security Holders may from time to time
determine to sell Shares for any reason, subject to compliance with federal
securities laws. Issuance or sales of substantial amounts of Common Stock, or
the perception that such sales or issuances could occur, could adversely effect
prevailing market prices for the Common Stock.
RESIGNATION OF CHIEF EXECUTIVE OFFICER
Theodore J. Papit has announced that he will resign his position as Chief
Executive Officer and President of the Company effective March 31, 1998, based
on personal reasons and desire to pursue other long-term professional
opportunities. If the Company is unable to hire a full-time replacement for Mr.
Papit reasonably soon, the failure to have a full time Chief Executive Officer
could have a material adverse effect on the Company.
RECENT DEVELOPMENTS
The Company and Theodore J. Papit, its President and Chief Executive
Officer, have reached an agreement for Mr. Papit to remain as President and
Chief Executive Officer through the first quarter of 1998. Mr. Papit had
previously announced his resignation from these positions, effective October 29,
1997, but, at the request of the Board of Directors, agreed to remain through
December 15, 1997. In connection with his agreement to extend his term of office
through the first quarter of 1998, Mr. Papit agreed to terminate, effective
December 15, 1997, all existing compensation and contractual obligations of the
Company regarding his employment, including termination of all stock options.
Mr. Papit will be compensated from December 15, 1997, through the end of the
first quarter of 1998 at a flat rate of $50,000 per month, and will be
reimbursed for normal out-of-pocket expenses.
The Company is continuing its search for a permanent replacement for Mr.
Papit.
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<PAGE> 9
USE OF PROCEEDS
The Company will not receive any proceeds from the sale of the Common Stock
offered pursuant to this Prospectus. The Selling Security Holders will receive
all of the net proceeds from any sale of the Shares offered hereby.
BACKGROUND; RESTRUCTURING
GENERAL
In 1996, the Company continued to streamline its operating focus after
completing a major restructuring of its financial position in fiscal 1995 (the
"Restructuring"). On January 2, 1996, the Company received the approval of its
lenders and stockholders on a recapitalization resulting in a reduction of the
Company's debt and other obligations by over $200 million, a significant
reduction in interest expense and an increase in net worth. Approval of the
Restructuring concluded nearly three years of discussions aimed at providing the
Company with greater financial stability and the resources to compete in an
increasingly competitive industry.
As part of the Restructuring, Cafeteria Operators executed the Amended and
Restated Indenture (the "Indenture") dated as of November 15, 1995 between
Cafeteria Operators and Fleet National Bank of Massachusetts (f/k/a Shawmut
Bank, N.A.), as trustee, pursuant to which, among other things, the terms of
$40.0 million aggregate principal amount outstanding under Cafeteria Operators'
11% Senior Secured Notes due June 30, 1998 (the "11% Notes") issued pursuant to
the Indenture dated as of March 27, 1992 between the Company and Shawmut Bank,
N.A., as collateral agent (the "Old Indenture"), were amended, with the consent
of the holders of the 11% Notes at such time (the "Original 11% Noteholders"),
to constitute $40.0 million (subject to the issuance of additional notes in
payment of the first interest installment) aggregate principal amount of 12%
Senior Secured Notes ("12% Notes") issued pursuant to the Indenture. In
addition, Cafeteria Operators issued a 12% Note in the original principal amount
of $1.7 (plus interest) million to the Trustees of General Electric Pension
Trust ("GEPT") in settlement of a $5.4 million judgment against Furr's/Bishop's
Cafeterias, L.P., a Delaware limited partnership and indirect wholly owned
partnership subsidiary of the Company ("FBLP"). As part of the Restructuring,
Wells Fargo Bank, National Association ("Wells Fargo") received an option to
purchase 2.5% of the outstanding Common Stock (the "Wells Fargo Option") in
satisfaction of approximately $6.1 million principal amount (plus approximately
$1.6 million of accrued and unpaid interest) of indebtedness of a subsidiary of
the Company. State Street Bank and Trust Company is currently the trustee under
the Indenture.
As a result of the Restructuring, indebtedness of Cafeteria Operators in
the amount of approximately $153 million aggregate principal amount (plus
approximately $46.6 million in accrued and unpaid interest) outstanding under
the Old Indenture was exchanged by holders on January 2, 1996 of the 11% Notes
(the "Exchanging 11% Noteholders" and together with the Original 11%
Noteholders, the "former 11% Noteholders") for an aggregate of 95% of the
limited partnership interests of Cafeteria Operators and the right to put to the
Company their 95% limited partnership interests in Cafeteria Operators in
exchange for 95% of the outstanding Common Stock (the "Put Option"). In
addition, outstanding warrants to purchase capital stock of the Company held by
certain of the Exchanging 11% Noteholders were cancelled.
On March 12, 1996, a majority of the Exchanging 11% Noteholders exercised
the Put Option and, accordingly, all Exchanging 11% Noteholders put their
aggregate 95% limited partnership interests to the Company in exchange for 95%
of the outstanding Common Stock. On March 15, 1996, Wells Fargo exercised the
Wells Fargo Option thereby becoming the beneficial owner of 2.5% of the
outstanding Common Stock. On March 22, 1996, a fifteen-to-one reverse stock
split became effective upon the filing of an amendment to the Company's Amended
and Restated Certificate of Incorporation with the Secretary of State of the
State of Delaware.
CERTAIN INCOME TAX RAMIFICATIONS OF THE RESTRUCTURING
As described above, the Restructuring was a complex series of transactions
which had a variety of federal income tax implications for the Company. The
Restructuring likely resulted in an ownership change (within
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<PAGE> 10
the meaning of Section 382 of the Internal Revenue Code), which is likely to
substantially restrict the ability of the Company to utilize existing net
operating loss carryovers to offset future income. In addition, although the
Company believes that such possibility is unlikely, no assurance can be given
that the Internal Revenue Service might not successfully recharacterize the
Restructuring in a manner which would reduce certain tax attributes of the
Company and the other partners of Cafeteria Operators (all of which are
subsidiaries of the Company) in an amount equal to the excess of the outstanding
amount of 11% Notes outstanding prior to the Restructuring over the fair market
value of the 11% Notes at such time.
SELLING SECURITY HOLDERS
The following table provides certain information with respect to the Shares
held by each Selling Security Holder. As a result of the restructuring and
subsequent sales of Common Stock by the Selling Security Holders, the Selling
Security Holders own approximately 86.5% of the outstanding Common Stock. Since
the Selling Security Holders may sell all or some of their Shares, no estimate
can be made of the aggregate amount of Shares that are to be offered hereby or
that will be owned by each Selling Security Holder upon completion of the
offering to which this Prospectus relates.
The Selling Security Holders are 14 separate holders (or groups of
affiliated holders) who are entitled to, and who the Company believes intend to,
vote separately upon all matters submitted to a vote of security holders of the
Company (including any mergers, sales of all or substantially all of the assets
of the Parent or the Company and going private transactions). To the Company's
knowledge, there are no agreements, arrangements or understandings among any of
the Selling Security Holders concerning the voting or disposition of any of such
Common Stock or any other matter regarding the Company or which might be the
subject of a vote of the Company's stockholders. Also, no Selling Security
Holder (or affiliated group of Selling Security Holders) is a beneficial owner
of more than 18% of the Common Stock; accordingly, no single Selling Security
Holder or affiliated group could itself approve any matter regarding the Company
or which might be the subject of a vote of the stockholders. Certain of the
Selling Security Holders, who currently hold 12% Notes, were former 11%
Noteholders. See "Background; Restructuring."
In addition, as a part of the Restructuring, certain 11% Noteholders
nominated certain of the members of the Board of Directors of the Company.
Certain of these directors continue to serve on the Board of Directors, and such
directors may have the power to direct the Company's operations. None of such
directors, however, is affiliated with any former 11% Noteholder and to the
Company's knowledge there is no agreement, understanding or arrangement among
any of the former 11% Noteholders or any such director concerning any matter
regarding the governance of the Company. In addition, E.W. Williams, Jr., a
director of the Company, and KL Group, Inc., a corporation controlled by Kevin
E. Lewis, Chairman of the Board of Directors of the Company, are Selling
Security Holders.
8
<PAGE> 11
The Shares offered by this Prospectus may be offered from time to time by
the Selling Security Holders named below:
<TABLE>
<CAPTION>
AGGREGATE AMOUNT OF SHARES
ORIGINALLY BENEFICIALLY
NAME OWNED AND REGISTERED SHARES OFFERED
---- -------------------------- --------------
<S> <C> <C>
Teachers Insurance and Annuity Association of
America......................................... 8,607,637 8,607,637
EQ Asset Trust 1993............................... 8,499,857 8,499,857
John Hancock Mutual Life Insurance Company........ 5,477,994 5,477,994
The Northwestern Mutual Life Insurance Company.... 5,471,679 5,471,679
The Mutual Life Insurance Company of New York..... 4,105,339 4,105,339
Principal Mutual Life Insurance Company........... 3,286,701 3,286,701
SC Fundamental Value Fund, L.P. .................. 2,949,620 1,925,415
SC Fundamental Value BVI Ltd. .................... 1,502,322 1,148,427
Wells Fargo Bank, National Association............ 1,216,224 1,216,224
The Ohio National Life Insurance Company.......... 984,240 919,240
CUNA Mutual Life Insurance Company................ 956,271 956,271
Cerberus Partners, L.P............................ 657,053 --
The Copernicus Fund, L.P.......................... 479,290 419,090
KL Group, Inc..................................... 301,205 10,000
Mark Zucker....................................... 239,646 --
E.W. Williams, Jr................................. 16,169 16,169
</TABLE>
Equitable Real Estate Investment Management, Inc. ("EREIMI"), a former
affiliate of EQ Asset Trust 1993, is the owner of six properties in Illinois and
Iowa which are leased by the Company. The aggregate amount paid by the Company
to EREIMI in respect of periodic rental installments during fiscal 1996 was
$537,034.75. Such lease was entered into by the Company and EREIMI prior to EQ
Asset Trust 1993's acquisition of an interest in the Company in connection with
the Restructuring. Such lease was negotiated at arm's length on terms no less
favorable than the Company would have obtained from an unrelated landlord.
9
<PAGE> 12
PLAN OF DISTRIBUTION
The Company will receive none of the proceeds from this offering. The
Shares may be sold from time to time to purchasers on the NYSE, in privately
negotiated transactions or in the over-the-counter market. The Selling Security
Holders may from time to time offer the Shares directly or through underwriters,
brokers, dealers or agents, pursuant to (a) a block trade in which a broker or
dealer will attempt to sell the Shares as agent but may position and resell a
portion of the block as principal to facilitate the transaction; (b) purchases
by a broker or dealer as principal and resale by such broker or dealer for its
account pursuant to this Prospectus; (c) ordinary brokerage transactions and
transactions in which the broker or dealer solicits purchasers. In effecting
such sales, underwriters, brokers or dealers engaged by the Selling Security
Holders may arrange for other brokers or dealers to participate in the resales.
Such sales may be effected at market prices and on terms prevailing at the time
of sale, at prices related to such market prices, at negotiated prices or at
fixed prices. In addition, the Selling Security Holders may engage in hedging or
other similar transactions, and may pledge the Shares being offered, and, upon
default, the pledgee may effect sales of the pledged shares pursuant to this
Prospectus. In connection with any hedging transactions, broker-dealers may
engage in short sales of the Shares registered hereunder in the course of
hedging the positions they assume with Selling Security Holders. The Selling
Security Holders may also sell Common Stock short and redeliver the Shares to
close out such short positions. The Selling Security Holders may also enter into
option or other transactions with broker-dealers which require the delivery to
the broker-dealer of the Shares registered hereunder. Underwriters, brokers,
dealers and agents may receive compensation in the form of underwriting
discounts, concessions or commissions from the Selling Security Holders or the
purchasers of Shares for whom they may act as agent. The Selling Security
Holders and any underwriters, dealers or agents that participate in the
distribution of Shares may be deemed to be "underwriters" within the meaning of
the Securities Act and any profit on the sale of Shares by them and any
discounts, commissions or concessions received by any such underwriters, dealers
or agents might be deemed to be underwriting discounts and commissions under the
Securities Act.
At the time a particular offering of Shares is made, a Prospectus
Supplement or a post-effective amendment to the Registration Statement, if
required, will be distributed which will set forth the aggregate amount and type
of Shares being offered and the terms of the offering, including the name or
names of any underwriters, dealers or agents, any discounts, commissions and
other terms constituting compensation from the Selling Security Holders and any
discounts, commissions or concessions allowed or reallowed or paid to dealers.
To comply with the securities laws of certain jurisdictions, if applicable,
the Shares will be offered or sold in such jurisdictions only through registered
or licensed brokers or dealers. In addition, in certain jurisdictions the Shares
may not be offered or sold unless they have been registered or qualified for
sale in such jurisdictions or an exemption from registration or qualification is
available and is complied with.
There is no assurance that the Selling Security Holders will sell any of
the Shares. In addition, any Shares covered by this prospectus which qualify for
sale pursuant to Rule 144 under the Securities Act may be sold pursuant to Rule
144 rather than pursuant to this prospectus.
Pursuant to the Exchange Agreement (the "Exchange Agreement") dated as of
November 15, 1995, between the Company and former 11% Noteholders, some of which
are Selling Security Holders, the Company will pay the expenses of former 11%
Noteholders incident to the offering and sale of the Shares to the public, other
than commissions, concessions and discounts of underwriters, dealers or agents,
but including the fees and disbursements of one counsel to such Selling Security
Holders. In addition, the Company has agreed to indemnify the Selling Security
Holders, and, if requested, any underwriter they may utilize against certain
civil liabilities, including liabilities under the Securities Act and, if such
indemnification is unavailable, to contribute to payments required to be made by
any of them in respect of such liabilities. The Exchange Agreement requires the
Company to keep the Registration Statement of which this Prospectus is a part
continuously effective until the earlier of (a) August 6, 1999, and (b) the date
upon which all Shares have either (i) been disposed of under this Prospectus,
(ii) been distributed to the public pursuant to Rule 144 or Rule 145 under the
Securities Act, (iii) been otherwise transferred and subsequent disposition of
them shall
10
<PAGE> 13
not require registration or qualification of them under the Securities Act or
any similar state law then in force, or (iv) ceased to be outstanding.
DESCRIPTION OF CAPITAL STOCK
GENERAL
Set forth below is a summary of the terms of the Common Stock. This summary
does not purport to be complete and is qualified in its entirety by reference to
the provisions of the Amended and Restated Certificate of Incorporation of the
Company (as amended, the "Certificate of Incorporation") as currently in effect.
The Certificate of Incorporation currently authorizes for issuance 70 million
shares of capital stock, consisting of 65 million shares of Common Stock and 5
million shares of preferred stock. The Board of Directors may authorize
additional series of preferred stock and fix the voting powers, dividend rates,
preferences and rights thereof. The Board of Directors has not authorized the
issuance of any series of preferred stock.
COMMON STOCK
The Company is presently authorized to issue 65 million shares of Common
Stock, par value $.01 per share. Holders of Common Stock have no preemptive
rights to purchase or subscribe for securities of the Company and the Common
Stock is not subject to redemption by the Company or convertible. The Common
Stock is listed for trading on the NYSE under the symbol "CHI."
Dividends. The holders of Common Stock are entitled to receive such
dividends as may be declared by the Board of Directors out of funds legally
available therefor. The Company does not currently anticipate paying dividends
on its Common Stock in the foreseeable future. The Indenture restricts payments
from Cafeteria Operators to the Company under certain circumstances thereby
restricting the ability of the Company to issue dividends to its stockholders.
See "Risk Factors -- No Anticipated Stockholder Distributions." Before declaring
or paying any dividend on the Common Stock, the Board of Directors will consider
the effect of any such declaration or payment on the Company's expansion program
and the Company's ability to pay its other obligations in the future. See "Risk
Factors -- Capital Expenditures" and "Business -- Capital Expenditure Program."
In the event of the liquidation, dissolution or winding up of the Company, the
holders of Common Stock will be entitled to share ratably in any assets of the
Company remaining after satisfaction of outstanding liabilities.
Voting Rights. Except as provided by the Delaware General Corporation Law
("DGCL") as described below, holders of Common Stock will be entitled to one
vote for each share held on all matters submitted to a vote of the stockholders.
The holders of a majority of the shares entitled to vote shall constitute a
quorum at a meeting of stockholders. Cumulative voting for the election of
directors is not permitted; therefore, the holders of a majority of the
Company's voting securities can elect all members of the Board of Directors of
the Company. The DGCL provides that the holders of the outstanding shares of a
class of capital stock shall be entitled to vote as a class upon a proposed
amendment to the Certificate of Incorporation, whether or not entitled to vote
thereon by the Certificate of Incorporation, if the amendment would increase or
decrease the aggregate number of authorized shares of such class, increase or
decrease the par value of the shares of such class, or alter or change the
powers, preferences, or special rights of the shares of such class so as to
affect them adversely.
The transfer agent and registrar for the Common Stock is Chemical Mellon
Shareholder Services, 450 West 33rd Street, New York, NY 10001.
LIMITATION OF LIABILITY AND INDEMNIFICATION OF DIRECTORS
Under Section 145 of the DGCL, a Delaware corporation has the power, under
specified circumstances, to indemnify its directors, officers, employees and
agents in connection with actions, suits or proceedings brought against them by
a third party or in the right of the corporation, by reason of the fact that
they were or are such directors, officers, employees or agents, or against
expenses incurred in any such action, suit or
11
<PAGE> 14
proceedings. Article Fifth of the Certificate of Incorporation provides the
mandatory indemnification of directors and officers to the fullest extent
permitted by law, including Section 145 of the DGCL.
Section 102(b)(7) of the DGCL provides that a certificate of incorporation
may contain a provision eliminating or limiting the personal liability of a
director to the corporation or its stockholders for monetary damages for breach
of fiduciary duty as a director provided that such provision shall not eliminate
or limit the liability of a director (i) for any breach of the director's duty
of loyalty to the corporation or its stockholders, (ii) for acts or omissions
not in good faith or which involve intentional misconduct or a knowing violation
of law, (iii) under Section 174 (relating to liability for unauthorized
acquisitions or redemption of, or dividends on, capital stock) of the DGCL, or
(iv) for any transaction from which the director derived an improper personal
benefit. Article Fifth of the Certificate of Incorporation contains such a
provision.
THE DELAWARE BUSINESS COMBINATION ACT
Section 203 of the DGCL (the "Delaware Business Combination Act") imposes a
three-year moratorium on business combinations (as defined in the Delaware
Business Combination Act) between a Delaware corporation and an "interested
stockholder" (in general, a stockholder owning 15% or more of a corporation's
outstanding voting stock) or an affiliate or associate thereof unless (i) prior
to an interested stockholder becoming such, the board of directors of the
corporation approved the business combination or the transactions resulting in
the interested stockholder becoming such, (ii) upon consummation of the
transaction resulting in an interested stockholder becoming such, the interested
stockholder owns 85% of the voting stock outstanding at the time the transaction
commenced (excluding from the calculation of outstanding shares those shares
beneficially owned by management, directors and certain employee stock plans),
or (iii) on or after the date an interested stockholder became an interested
stockholder, such combination is approved by (a) the board of directors and (b)
holders of at least 66 2/3% of the outstanding shares (other than those shares
beneficially owned by the interested stockholder) at a meeting of stockholders.
The Delaware Business Combination Act provides that the term "business
combination" in general means (i) mergers or consolidations, (ii) sales, leases,
exchanges or other transfers of 10% or more of the aggregate assets of the
corporation, (iii) issuance or transfers by the corporation of any stock of the
corporation which would have the effect of increasing the interested
stockholder's proportionate share of the stock or any class or series of the
corporation, (iv) any other transaction which has the effect of increasing the
proportionate share of the stock of any class or series of the corporation which
is owned by an interested stockholder, and (v) receipt by an interested
stockholder of the benefit (except proportionately as a stockholder) of loans,
advances, guarantees, pledges or other financial benefits provided by the
corporation.
LEGAL MATTERS
Certain legal matters in connection with the Shares offered hereby have
been passed upon for the Company by Fulbright & Jaworski L.L.P.
EXPERTS
The consolidated balance sheet as of January 2, 1996 and the related
consolidated statements of operations, changes in stockholders' equity (deficit)
and cash flows for the 52-week year ended January 2, 1996, and the 53-week year
ended January 3, 1995, and appearing in the Company's Annual Report on Form 10-K
for the year ended December 31, 1996, have been audited by Deloitte & Touche
LLP, independent certified public accountants, as stated in their report thereon
and incorporated herein by reference. Such financial statements are incorporated
herein by reference in reliance upon the report of such firm given upon their
authority as experts in accounting and auditing.
The consolidated financial statements and schedule of the Company as of and
for the 52-week year ended December 31, 1996 have been incorporated by reference
herein and in the Registration Statement in reliance upon the report of KPMG
Peat Marwick LLP, independent certified public accountants, incorporated by
reference herein, and upon the authority of said firm as experts in accounting
and auditing.
12
<PAGE> 15
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the costs and expenses, other than
underwriting discounts and commissions, to be paid in connection with the sale
of the Shares being registered, all of which will be paid by the registrant. All
amounts are estimates except the registration fee.
<TABLE>
<S> <C>
Registration Fee............................................ $ 26,757
Accounting Fees and Expenses................................ $ 15,000
Legal Fees and Expenses..................................... $ 75,000
Trustee Fees................................................ $ 5,000
Printing and Engraving Fees and Expenses.................... $ 5,000
Miscellaneous............................................... $ 10,000
--------
Total....................................................... $136,757
========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 102(b)(7) of the Delaware General Corporation Law enables a
Delaware corporation to provide in its certificate of incorporation, and the
Company has so provided in its Amended and Restated Certificate of
Incorporation, for the elimination or limitation of the personal liability of a
director to the corporation or its stockholders for monetary damages for breach
of fiduciary duty as a director; provided, however, that a director's liability
is not eliminated or limited: (1) for any breach of the director's duty of
loyalty to the corporation or its stockholders; (2) for acts or omissions not in
good faith or which involve an intentional misconduct or a knowing violation of
law; (3) under Section 174 of the Delaware General Corporation Law (which
imposes liability on directors for unlawful payment of dividends or unlawful
stock purchases or redemptions); or (4) for any transaction from which the
director derived an improper personal benefit. The Certificate of Incorporation
further provides that if the Delaware General Corporation Law is amended to
authorize the further elimination or limitation of the liability of directors,
then the liability of a director shall be eliminated or limited to the fullest
extent permitted by the Delaware General Corporation Law, as amended.
Section 145 of the Delaware General Corporation Law empowers a corporation
to indemnify any person who was or is a party or witness or is threatened to be
made a party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (other than an action
by or in the right of the corporation) by reason of the fact that he or she 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. Depending on the character of the
proceeding, a corporation may indemnify against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred in connection with such action, suit or proceeding if the person
indemnified acted in good faith and in a manner he or she reasonably believed to
be in or not opposed to the best interests of the corporation, and, with respect
to any criminal action or proceeding, had no reasonable cause to believe his or
her conduct was unlawful. If the person indemnified is not wholly successful in
such action, suit or proceeding, but is successful, on the merits or otherwise,
in one or more but less than all claims, issues or matters in such proceeding,
he or she may be indemnified against expenses actually and reasonably incurred
in connection with each successfully resolved claim, issue or matter. In the
case of an action or suit by or in the right of the corporation, no
indemnification may be made in respect to any claim, issue or matter as to which
such person shall have been adjudged to be liable to the corporation unless and
only to the extent that the Court of Chancery or the court in which such action
or suit was brought shall determine that despite the adjudication of liability
such person is fairly and reasonably entitled to indemnity for such expenses
which the court shall deem proper. Section 145 provides that to the extent a
director, officer, employee or agent of a corporation has been successful in the
defense of any action, suit or proceeding referred to above or in the
II-1
<PAGE> 16
defense of any claim, issue or manner therein, he or she shall be indemnified
against expenses (including attorneys' fees) actually and reasonably incurred by
him or her in connection therewith.
The By-laws of the Company provide that, to the fullest extent permitted by
the Delaware General Corporation Law, the Company shall indemnify any person who
was or is a party or is threatened to be made a party to any action, suit or
proceeding of the type described above by reason of the fact that he or she is
or was a director or officer of the Company or is or was serving at the request
of the Company as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise. No expenses will be paid
in advance except, as authorized by the Board of Directors, to a director or
officer for expenses incurred while acting in his or her capacity as a director
or officer, who has delivered an undertaking to the Company to repay all amounts
advanced if it should be later determined that such director or officer was not
entitled to indemnification. The By-laws further provide that the above rights
of indemnification are not exclusive of any other rights of indemnification that
a director or officer may be entitled to from any other source.
Each current director has entered into an Indemnification Agreement dated
as of January 2, 1996 by and between the Company and such director pursuant to
which the Company will indemnify such director and hold such director harmless
from any and all losses, expenses and fines to the fullest extent authorized,
permitted or not prohibited (i) by the Delaware General Corporation Law or any
other applicable law (including judicial, regulatory or administrative
interpretations or readings thereof), the Company's Certificate of Incorporation
or By-laws as in effect on the date of execution of the agreement or other
statutory provision authorizing such indemnification that is adopted after
January 2, 1996. In the event that after the date of the agreements the Company
provides that greater right of indemnification, in any respect, to any other
person serving as an officer or director of the Company, then such greater right
of indemnification shall inure to the benefit of the respective director and
shall be deemed to be incorporated in the relevant agreement as a basis for
indemnity, at each director's election, together with the indemnity expressly
set forth therein.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
(a) Exhibits
<TABLE>
<CAPTION>
EXHIBITS DESCRIPTION
-------- -----------
<C> <S>
*4.1 -- Amended and Restated Certificate of Incorporation of
Furr's/Bishop's, Incorporated.
4.2 -- By-laws of Furr's/Bishop's, Incorporated (as amended
December 3, 1997).
**4.3 -- Certificate of Amendment to the Amended and Restated
Certificate of Incorporation of Furr's/Bishop's,
Incorporated.
+4.3 -- Second Certificate of Amendment to the Amended and
Restated Certificate of Incorporation of Furr's/Bishop's,
Incorporated.
++5.1 -- Opinion of Fulbright & Jaworski L.L.P.
23.1 -- Consent of KPMG Peat Marwick LLP as independent certified
public accountants.
23.2 -- Consent of Deloitte & Touche LLP as independent certified
public accountants.
++23.3 -- Consent of Fulbright & Jaworski L.L.P. (included in their
opinion filed as Exhibit 5.1).
++24.1 -- Power of Attorney (included in the Signature Page to this
Registration Statement).
</TABLE>
- ---------------
* Incorporated by reference from the Registrant's Registration Statement on
Form S-4, File No. 33-38978.
** Incorporated by reference from the Registrant's Registration Statement on
Form S-4, File No. 33-92236.
+ Incorporated by reference from the Registrant's Form 10-K for the fiscal year
ended January 2, 1996.
++ Previously Filed.
II-2
<PAGE> 17
ITEM 17. 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 of 1933;
(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.
(2) That, for the purpose of determining any liability under the
Securities 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 as of the
termination of the offering.
The undersigned Registrant hereby undertakes that:
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 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 Act and will be governed by the final
adjudication of such issue.
The undersigned Registrant undertakes that:
(1) For purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed as part
of this Registration Statement in reliance upon Rule 430A and contained in
a form of prospectus filed by the Registrant pursuant to Rule 424(b)(1) or
(4) or 497(h) under the Securities Act shall be deemed to be part of this
Registration Statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of
prospectus 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.
II-3
<PAGE> 18
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 Post-Effective
Amendment No. 2 to Registration Statement on Form S-1 to be signed on its behalf
by the undersigned, thereunto duly authorized, in the City of Lubbock, State of
Texas, on December 16, 1997.
FURR'S/BISHOP'S INCORPORATED
By: /s/ THEODORE J. PAPIT
-----------------------------------
Theodore J. Papit
President and Chief Executive
Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated:
<TABLE>
<CAPTION>
SIGNATURE TITLE PAGE
--------- ----- ----
<C> <S> <C>
/s/ THEODORE J. PAPIT President, Chief December 16, 1997
- ----------------------------------------------------- Executive Officer and
Theodore J. Papit Director
* Chairman of the Board of
- ----------------------------------------------------- Directors
Kevin E. Lewis
* Director
- -----------------------------------------------------
E.W. Williams, Jr.
* Director
- -----------------------------------------------------
Suzanne Hopgood
* Director
- -----------------------------------------------------
Gilbert C. Osnos
* Director
- -----------------------------------------------------
Kenneth R. Reimer
/s/ ALTON R. SMITH Principal Accounting and December 16, 1997
- ----------------------------------------------------- Principal Financial
Alton R. Smith Officer
*By: /s/ KEVIN E. LEWIS December 16, 1997
------------------------------------------------
Kevin E. Lewis
Attorney-in-Fact
</TABLE>
II-4
<PAGE> 19
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBITS DESCRIPTION
-------- -----------
<C> <S>
*4.1 -- Amended and Restated Certificate of Incorporation of
Furr's/Bishop's, Incorporated.
4.2 -- By-laws of Furr's/Bishop's, Incorporated (as amended
December 3, 1997).
**4.3 -- Certificate of Amendment to the Amended and Restated
Certificate of Incorporation of Furr's/Bishop's,
Incorporated.
+4.3 -- Second Certificate of Amendment to the Amended and
Restated Certificate of Incorporation of Furr's/Bishop's,
Incorporated.
++5.1 -- Opinion of Fulbright & Jaworski L.L.P.
23.1 -- Consent of KPMG Peat Marwick LLP as independent certified
public accountants.
23.2 -- Consent of Deloitte & Touche LLP as independent certified
public accountants.
++23.3 -- Consent of Fulbright & Jaworski L.L.P. (included in their
opinion filed as Exhibit 5.1).
++24.1 -- Power of Attorney (included in the Signature Page to this
Registration Statement).
</TABLE>
- ---------------
* Incorporated by reference from the Registrant's Registration Statement on
Form S-4, File No. 33-38978.
** Incorporated by reference from the Registrant's Registration Statement on
Form S-4, File No. 33-92236.
+ Incorporated by reference from the Registrant's Form 10-K for the fiscal year
ended January 2, 1996.
++ Previously Filed.
<PAGE> 1
EXHIBIT 4.2
BY-LAWS
OF
FURR'S/BISHOP'S, INCORPORATED
(HEREINAFTER CALLED THE "CORPORATION")
(LAST AMENDED DECEMBER 3, 1997)
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office of the
Corporation shall be in the City of Wilmington, County of New Castle, State of
Delaware.
Section 2. Other Offices. The Corporation may also have offices at
such other places both within and without the State of Delaware as the Board of
Directors may from time to time determine.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Place of Meetings. Meetings of the stockholders for the
election of directors or for any other purpose shall be held at such time and
place, either within or without the State of Delaware as shall be designated
from time to time by the Board of Directors and stated in the notice of the
meeting or in a duly executed waiver of notice thereof.
Section 2. Annual Meetings. The Annual Meetings of Stockholders
shall be held on such date and at such time as shall be designated from time to
time by the Board of
<PAGE> 2
Directors and stated in the notice of the meeting, at which meetings the
stockholders shall elect by a plurality vote a Board of Directors, and transact
such other business as may properly be brought before the meeting. Written
notice of the Annual Meeting stating the place, date and hour of the meeting
shall be given to each stockholder entitled to vote at such meeting not less
than ten nor more than sixty days before the date of the meeting.
Section 3. Special Meetings. Unless otherwise prescribed by law or
by the Certificate of Incorporation, Special Meetings of Stockholders, for any
purpose or purposes, may be called by either (i) the Chairman, if there be one,
or (ii) the President, (iii) any Vice President, if there be one, (iv) the
Secretary or (v) any Assistant Secretary, if there be one, and shall be called
by any such person at the request in writing of a majority of the Board of
Directors or at the request in writing of stockholders owning a majority of the
capital stock of the Corporation issued and outstanding and entitled to vote.
Such request shall state the purpose or purposes of the proposed meeting.
Written notice of a Special Meeting stating the place, date and hour of the
meeting and the purpose or purposes for which the meeting is called shall be
given not less than ten nor more than sixty days before the date of the meeting
to each stockholder entitled to vote at such meeting.
Section 4. Quorum. Except as otherwise provided by law or by the
Certificate of Incorporation, the holders of a
2
<PAGE> 3
majority of the capital stock issued and outstanding and entitled to vote
thereat, present in person or represented by proxy, shall constitute a quorum
at all meetings of the stockholders for the transaction of business. If,
however, such quorum shall not be present or represented at any meeting of the
stockholders, the stockholders entitled to vote thereat, present in person or
represented by proxy, shall have power to adjourn the meeting from time to
time, without notice other than announcement at the meeting, until a quorum
shall be present or represented. At such adjourned meeting at which a quorum
shall be present or represented, any business may be transacted which might
have been transacted at the meeting as originally noticed. If the adjournment
is for more than thirty days, or if after the adjournment a new record date is
fixed for the adjourned meeting, a notice of the adjourned meeting shall be
given to each stockholder entitled to vote at the meeting.
Section 5. Voting. Unless otherwise required by law, the Certificate
of Incorporation or these By-Laws, any question brought before any meeting of
stockholders shall be decided by the vote of the holders of a majority of the
stock represented and entitled to vote thereat. Each stockholder represented
at a meeting of stockholders shall be entitled to cast one vote for each share
of the capital stock entitled to vote thereat held by such stockholder. Such
votes may be cast in person or by proxy but no proxy shall be voted on or after
three years from its date, unless such proxy provides for a
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longer period. The Board of Directors, in its discretion, the Chairman of the
Board of Directors, in his discretion, or the officer of the Corporation
presiding at a meeting of stockholders, in his discretion, may require that any
votes cast at such meeting shall be cast by written ballot.
Section 6. Consent of Stockholders in Lieu of Meeting. Unless
otherwise provided in the Certificate of Incorporation, any action required or
permitted to be taken at any Annual or Special Meeting of Stockholders of the
Corporation, may be taken without a meeting, without prior notice and without a
vote, if a consent in writing, setting forth the action so taken, shall be
signed by the holders of outstanding stock having not less than the minimum
number of votes that would be necessary to authorize or take such action at a
meeting at which all shares entitled to vote thereon were present and voted.
Prompt notice of the taking of the corporate action without a meeting by less
than unanimous written consent shall be given to those stockholders who have
not consented in writing.
Section 7. List of Stockholders Entitled to Vote. The officer of the
Corporation who has charge of the stock ledger of the Corporation shall prepare
and make, at least ten days before every meeting of stockholders, a complete
list of the stockholders entitled to vote at the meeting, arranged in
alphabetical order, and showing the address of each stockholder and the number
of shares registered in the name of each stockholder. Such list shall be open
to the examination
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of any stockholder, for any purpose germane to the meeting, during ordinary
business hours, for a period of at least ten days prior to the meeting, either
at a place within the city where the meeting is to be held, which place shall
be specified in the notice of the meeting, or, if not so specified, at the
place where the meeting is to be held. The list shall also be produced and
kept at the time and place of the meeting during the whole time thereof, and
may be inspected by any stockholder of the Corporation who is present.
Section 8. Stock Ledger. The stock ledger of the Corporation shall
be the only evidence as to who are the stockholders entitled to examine the
stock ledger, the list required by Section 7 of this Article II or the books of
the Corporation, or to vote in person or by proxy at any meeting of
stockholders.
ARTICLE III
DIRECTORS
Section 1. Number and Election of Directors. The Board of Directors
shall consist of not less than one nor more than fifteen members, the exact
number of which shall initially be fixed by the Incorporator and thereafter
from time to time by the Board of Directors. Except as provided in Section 2
of this Article, directors shall be elected by a plurality of the votes cast at
Annual Meetings of Stockholders, and each director so elected shall hold office
until the next Annual
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Meeting and until his successor is duly elected and qualified, or until his
earlier resignation or removal. Any director may resign at any time upon
notice to the Corporation. Directors need not be stockholders.
Section 2. Chairman of the Board of Directors. The Board of
Directors at its first meeting held after each Annual Meeting of Stockholders
or from time to time may elect a Chairman of the Board of Directors, who must
be a director. The Chairman of the Board of Directors, if there be one, shall
preside at all meetings of the stockholders and of the Board of Directors and
shall perform such other duties and may exercise such other powers as from time
to time may be assigned to him by these By-Laws or by the Board of Directors.
The Chairman of the Board of Directors may be removed at any time by the
affirmative vote of a majority of the Board of Directors, and shall serve as
Chairman of the Board of Directors until his successor is chosen and qualifies
or until his earlier resignation or removal. Notwithstanding the foregoing,
the Chairman of the Board of Directors shall not be deemed an officer of the
Corporation solely because of his position as Chairman of the Board of
Directors. If the Chairman of the Board of Directors is not also an officer or
otherwise an employee of the Corporation, he shall have no duties to the
Corporation other than his duties as a member of the Board of Directors and as
Chairman of the Board of Directors.
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Section 3. Vacancies. Vacancies and newly created directorships
resulting from any increase in the authorized number of directors may be filled
by a majority of the directors then in office, though less than a quorum, or by
a sole remaining director, and the directors so chosen shall hold office until
the next annual election and until their successors are duly elected and
qualified, or until their earlier resignation or removal.
Section 4. Duties and Powers. The business of the Corporation shall
be managed by or under the direction of the Board of Directors which may
exercise all such powers of the Corporation and do all such lawful acts and
things as are not by statute or by the Certificate of Incorporation or by these
By-Laws directed or required to be exercised or done by the stockholders.
Section 5. Meetings. The Board of Directors of the Corporation may
hold meetings, both regular and special, either within or without the State of
Delaware. Regular meetings of the Board of Directors may be held without
notice at such time and at such place as may from time to time be determined by
the Board of Directors. Special meetings of the Board of Directors may be
called by the Chairman, if there be one, the President, or any directors.
Notice thereof stating the place, date and hour of the meeting shall be given
to each director either by mail not less that forty-eight (48) hours before the
date of the meeting, by telephone or telegram on twenty-four (24) hours'
notice, or on such shorter notice as the person or persons calling such meeting
may deem necessary or appropriate in the circumstances.
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Section 6. Quorum. Except as may be otherwise specifically provided
by law, the Certificate of Incorporation or these By-Laws, at all meetings of
the Board of Directors, a majority of the entire Board of Directors shall
constitute a quorum for the transaction of business and the act of a majority
of the directors present at any meeting at which there is a quorum shall be the
act of the Board of Directors. If a quorum shall not be present at any meeting
of the Board of Directors, the directors present thereat may adjourn the
meeting from time to time, without notice other than announcement at the
meeting, until a quorum shall be present.
Section 7. Actions of Board. Unless otherwise provided by the
Certificate of Incorporation or these By-Laws, any action required or permitted
to be taken at any meeting of the Board of Directors or of any committee
thereof may be taken without a meeting, if all the members of the Board of
Directors or committee, as the case may be, consent thereto in writing, and the
writing or writings are filed with the minutes of proceedings of the Board of
Directors or committee.
Section 8. Meetings by Means of Conference Telephone. Unless
otherwise provided by the Certificate of Incorporation or these By-Laws,
members of the Board of Directors of the Corporation, or any committee
designated by the Board of Directors, may participate in a meeting of the Board
of Directors or such committee by means of a conference telephone
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or similar communications equipment by means of which all persons participating
in the meeting can hear each other, and participation in a meeting pursuant to
this Section 7 shall constitute presence in person at such meeting.
Section 9. Committees. The Board of Directors may, by resolution
passed by a majority of the entire Board of Directors, designate one or more
committees, each committee to consist of one or more of the directors of the
Corporation. The Board of Directors may designate one or more directors as
alternate members of any committee, who may replace any absent or disqualified
member at any meeting of any such committee. In the absence or
disqualification of a member of a committee, and in the absence of a
designation by the Board of Directors of an alternate member to replace the
absent or disqualified member, the member or members thereof present at any
meeting and not disqualified from voting, whether or not he or they constitute
a quorum, may unanimously appoint another member of the Board of Directors to
act at the meeting in the place of any absent or disqualified member. Any
committee, to the extent allowed by law and provided in the resolution
establishing such committee, shall have and may exercise all the powers and
authority of the Board of Directors in the management of the business and
affairs of the Corporation. Each committee shall keep regular minutes and
report to the Board of Directors when required.
Section 10. Compensation. The directors may be paid their expenses,
if any, of attendance at each meeting of the
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Board of Directors and may be paid a fixed sum for attendance at each meeting
of the Board of Directors or a stated salary as director. Members of special
or standing committees may be allowed like compensation for attending committee
meetings. The Board of Directors shall have the authority to fix the
compensation to be paid to directors, and the Chairman of the Board of
Directors may be paid a salary or other compensation for serving as Chairman of
the Board of Directors in excess of the compensation paid to the other
directors. No payment to any director as provided in this Section 10 shall
preclude any director from serving the Corporation in any other capacity and
receiving compensation therefor.
Section 11. Interested Directors. No contract or transaction between
the Corporation and one or more of its directors or officers, or between the
Corporation and any other corporation, partnership, association, or other
organization in which one or more of its directors or officers are directors or
officers, or have a financial interest, shall be void or voidable solely for
this reason, or solely because the director or officer is present at or
participates in the meeting of the Board of Directors or committee thereof
which authorizes the contract or transaction, or solely because his or their
votes are counted for such purpose if (i) the material facts as to his or their
relationship or interest and as to the contract or transaction are disclosed or
are known to the Board of Directors or the committee, and the Board of
Directors or committee in good faith authorizes the contract
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or transaction by the affirmative votes of a majority of the disinterested
directors, even though the disinterested directors be less than a quorum; or
(ii) the material facts as to his or their relationship or interest and as to
the contract or transaction are disclosed or are known to the stockholders
entitled to vote thereon, and the contract or transaction is specifically
approved in good faith by vote of the stockholders; or (iii) the contract or
transaction is fair as to the Corporation as of the time it is authorized,
approved or ratified, by the Board of Directors, a committee thereof or the
stockholders. Common or interested directors may be counted in determining the
presence of a quorum at a meeting of the Board of Directors or of a committee
which authorizes the contract or transaction.
ARTICLE IV
OFFICERS
Section 1. General. The officers of the Corporation shall be chosen
by the Board of Directors and shall be a President, a Secretary and a
Treasurer. The Board of Directors, in its discretion, may also choose one or
more Vice Presidents, Assistant Secretaries, Assistant Treasurers and other
officers. Any number of offices may be held by the same person, unless
otherwise prohibited by law, the Certificate of Incorporation or these By-Laws.
The officers of the Corporation need not be stockholders or directors of the
Corporation.
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Section 2. Election. The Board of Directors at its first meeting
held after each Annual Meeting of Stockholders shall elect the officers of the
Corporation who shall hold their offices for such terms and shall exercise such
powers and perform such duties as shall be determined from time to time by the
Board of Directors; and all officers of the Corporation shall hold office until
their successors are chosen and qualified, or until their earlier resignation
or removal. Any officer elected by the Board of Directors may be removed at
any time by the affirmative vote of a majority of the Board of Directors. Any
vacancy occurring in any office of the Corporation shall be filled by the Board
of Directors. The salaries of all officers of the Corporation shall be fixed
by the Board of Directors.
Section 3. Voting Securities Owned by the Corporation. Powers of
attorney, proxies, waivers of notice of meeting, consents and other instruments
relating to securities owned by the Corporation may be executed in the name of
and on behalf of the Corporation by the President or any Vice President and any
such officer may, in the name of and on behalf of the Corporation, take all
such action as any such officer may deem advisable to vote in person or by
proxy at any meeting of security holders of any corporation in which the
Corporation may own securities and at any such meeting shall possess and may
exercise any and all rights and power incident to the ownership of such
securities and which, as the owner thereof, the Corporation might have
exercised and possessed if present. The Board of Directors may, by resolution,
from time to time confer like powers upon any other person or persons.
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Section 4. President. The President shall, subject to the control of
the Board of Directors, have general supervision of the business of the
Corporation and shall see that all orders and resolutions of the Board of
Directors are carried into effect. He shall execute all bonds, mortgages,
contracts and other instruments of the Corporation requiring a seal, under the
seal of the Corporation, except where required or permitted by law to be
otherwise signed and executed and except that the other officers of the
Corporation may sign and execute documents when so authorized by these By-Laws,
the Board of Directors or the President. In the absence or disability of the
Chairman of the Board of Directors, or if there be none, the President shall
preside at all meetings of the stockholders and the Board of Directors. Unless
otherwise designated by the Board of Directors, the President shall be the
Chief Executive Officer of the Corporation. The President shall also perform
such other duties and may exercise such other powers as from time to time may
be assigned to him by these By-Laws or by the Board of Directors.
Section 5. Vice Presidents. At the request of the President or in
his absence or in the event of his inability or refusal to act, the Vice
President or the Vice Presidents if there is more than one (in the order
designated by the Board of Directors) shall perform the duties of the
President, and when so acting, shall have all the powers of and be subject to
all the restrictions upon the President. Each Vice
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President shall perform such other duties and have such other powers as the
Board of Directors from time to time may prescribe. If there be no Vice
President, the Board of Directors shall designate the officer of the
Corporation who, in the absence of the President or in the event of the
inability or refusal of the President to act, shall perform the duties of the
President, and when so acting, shall have all the powers of and be subject to
all the restrictions upon the President.
Section 6. Secretary. The Secretary shall attend all meetings of the
Board of Directors and all meetings of stockholders and record all the
proceedings thereat in a book or books to be kept for that purpose; the
Secretary shall also perform like duties for the standing committees when
required. The Secretary shall give, or cause to be given, notice of all
meetings of the stockholders and special meetings of the Board of Directors,
and shall perform such other duties as may be prescribed by the Board of
Directors or President, under whose supervision he shall be. If the Secretary
shall be unable or shall refuse to cause to be given notice of all meetings of
the stockholders and special meetings of the Board of Directors, and if there
be no Assistant Secretary, then either the Board of Directors or the President
may choose another officer to cause such notice to be given. The Secretary
shall have custody of the seal of the Corporation and the Secretary or any
Assistant Secretary, if there be one, shall have authority to affix the same to
any instrument requiring it and when so affixed, it may be attested by the
signature of the
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Secretary or by the signature of any such Assistant Secretary. The Board of
Directors may give general authority to any other officer to affix the seal of
the Corporation and to attest the affixing by his signature. The Secretary
shall see that all books, reports, statements, certificates and other documents
and records required by law to be kept or filed are properly kept or filed, as
the case may be.
Section 7. Treasurer. The Treasurer shall have the custody of the
corporate funds and securities and shall keep full and accurate accounts of
receipts and disbursements in books belonging to the Corporation and shall
deposit all moneys and other valuable effects in the name and to the credit of
the Corporation in such depositories as may be designated by the Board of
Directors. The Treasurer shall disburse the funds of the Corporation as may be
ordered by the Board of Directors, taking proper vouchers for such
disbursements, and shall render to the President and the Board of Directors, at
its regular meetings, or when the Board of Directors so requires, an account of
all his transactions as Treasurer and of the financial condition of the
Corporation. If required by the Board of Directors, the Treasurer shall give
the Corporation a bond in such sum and with such surety or sureties as shall be
satisfactory to the Board of Directors for the faithful performance of the
duties of his office and for the restoration to the Corporation, in case of his
death, resignation, retirement or removal from office, of all books, papers,
vouchers, money and other property of whatever kind in his possession or under
his control belonging to the Corporation.
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Section 8. Assistant Secretaries. Except as may be otherwise
provided in these By-Laws, Assistant Secretaries, if there be any, shall
perform such duties and have such powers as from time to time may be assigned
to them by the Board of Directors, the President, any Vice President, if there
be one, or the Secretary, and in the absence of the Secretary or in the event
of his disability or refusal to act, shall perform the duties of the Secretary,
and when so acting, shall have all the powers of and be subject to all the
restrictions upon the Secretary.
Section 9. Assistant Treasurers. Assistant Treasurers, if there be
any, shall perform such duties and have such powers as from time to time may be
assigned to them by the Board of Directors, the President, any Vice President,
if there be one, or the Treasurer, and in the absence of the Treasurer or in
the event of his disability or refusal to act, shall perform the duties of the
Treasurer, and when so acting, shall have all the powers of and be subject to
all the restrictions upon the Treasurer. If required by the Board of
Directors, an Assistant Treasurer shall give the Corporation a bond in such sum
and with such surety or sureties as shall be satisfactory to the Board of
Directors for the faithful performance of the duties of his office and for the
restoration to the Corporation, in case of his death, resignation, retirement
or removal from office, of all books, papers, vouchers, money and other
property of whatever kind in his possession or under his control belonging to
the Corporation.
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Section 10. Other Officers. Such other officers as the Board of
Directors may choose shall perform such duties and have such powers as from
time to time may be assigned to them by the Board of Directors. The Board of
Directors may delegate to any other officer of the Corporation or to the
Chairman of the Board of Directors the power to choose such other officers and
to prescribe their respective duties and powers.
ARTICLE V
STOCK
Section 1. Form of Certificates. Every holder of stock in the
Corporation shall be entitled to have a certificate signed, in the name of the
Corporation (i) by the Chairman of the Board of Directors, the President or a
Vice President and (ii) by the Treasurer or an Assistant Treasurer, or the
Secretary or an Assistant Secretary of the Corporation, certifying the number
of shares owned by him in the Corporation.
Section 2. Signatures. Where a certificate is countersigned by (i) a
transfer agent other than the Corporation, the Chairman of the Board of
Directors, or an employee of the Corporation, or (ii) a registrar other than
the Corporation, the Chairman of the Board of Directors or an employee of the
Corporation, any other signature on the certificate may be a facsimile. In
case the Chairman of the
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Board of Directors or any officer, transfer agent or registrar who has signed
or whose facsimile signature has been placed upon a certificate shall have
ceased to be the Chairman of the Board of Directors or such officer, transfer
agent or registrar before such certificate is issued, it may be issued by the
Corporation with the same effect as if he were the Chairman of the Board of
Directors or such officer, transfer agent or registrar at the date of issue.
Section 3. Lost Certificates. The Board of Directors may direct a
new certificate to be issued in place of any certificate theretofore issued by
the Corporation alleged to have been lost, stolen or destroyed, upon the making
of an affidavit of that fact by the person claiming the certificate of stock to
be lost, stolen or destroyed. When authorizing such issue of a new
certificate, the Board of Directors may, in its discretion and as a condition
precedent to the issuance thereof, require the owner of such lost, stolen or
destroyed certificate, or his legal representative, to advertise the same in
such manner as the Board of Directors shall require and/or to give the
Corporation a bond in such sum as it may direct as indemnity against any claim
that may be made against the Corporation with respect to the certificate
alleged to have been lost, stolen or destroyed.
Section 4. Transfers. Stock of the Corporation shall be transferable
in the manner prescribed by law and in these By-Laws. Transfers of stock shall
be made on the books of the Corporation only by the person named in the
certificate or by his attorney lawfully constituted in writing and upon the
surrender of the certificate therefor, which shall be cancelled before a new
certificate shall be issued.
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Section 5. Record Date. In order that the Corporation may determine
the stockholders entitled to notice of or to vote at any meeting of
stockholders or any adjournment thereof, or entitled to express consent to
corporate action in writing without a meeting, or entitled to receive payment
of any dividend or other distribution or allotment of any rights, or entitled
to exercise any rights in respect of any change, conversion or exchange of
stock, or for the purpose of any other lawful action, the Board of Directors
may fix, in advance, a record date, which shall not be more than sixty days nor
less than ten days before the date of such meeting, nor more than sixty days
prior to any other action. A determination of stockholders of record entitled
to notice of or to vote at a meeting of stockholders shall apply to any
adjournment of the meeting; provided, however, that the Board of Directors may
fix a new record date for the adjourned meeting.
Section 6. Beneficial Owners. The Corporation shall be entitled to
recognize the exclusive right of a person registered on its books as the owner
of shares to receive dividends, and to vote as such owner, and to hold liable
for calls and assessments a person registered on its books as the owner of
shares, and shall not be bound to recognize any equitable or other claim to or
interest in such share or shares on the part of any other person, whether or
not it shall have express or other notice thereof, except as otherwise provided
by law.
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ARTICLE VI
NOTICES
Section 1. Notices. Whenever written notice is required by law, the
Certificate of Incorporation or these By-Laws, to be given to any director,
member of a committee or stockholder, such notice may be given by mail,
addressed to such director, member of a committee or stockholder, at his
address as it appears on the records of the Corporation, with postage thereon
prepaid, and such notice shall be deemed to be given at the time when the same
shall be deposited in the United States mail. Written notice may also be given
personally or by telegram, telex or cable.
Section 2. Waivers of Notice. Whenever any notice is required by
law, the Certificate of Incorporation or these By-Laws, to be given to any
director, member of a committee or stockholder, a waiver thereof in writing,
signed, by the person or persons entitled to said notice, whether before or
after the time stated therein, shall be deemed equivalent thereto.
ARTICLE VII
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the capital stock of the
Corporation, subject to the provisions of the Certificate of Incorporation, if
any, may be declared by the
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Board of Directors at any regular or special meeting, and may be paid in cash,
in property, or in shares of the capital stock. Before payment of any
dividend, there may be set aside out of any funds of the Corporation available
for dividends such sum or sums as the Board of Directors from time to time, in
its absolute discretion, deems proper as a reserve or reserves to meet
contingencies, or for equalizing dividends, or for repairing or maintaining any
property of the Corporation, or for any proper purpose, and the Board of
Directors may modify or abolish any such reserve.
Section 2. Disbursements. All checks or demands for money and notes
of the Corporation shall be signed by such officer or officers or such other
person or persons as the Board of Directors may from time to time designate.
Section 3. Fiscal Year. The fiscal year of the Corporation shall be
fixed by resolution of the Board of Directors.
Section 4. Corporate Seal. The corporate seal shall have inscribed
thereon the name of the Corporation, the year of its organization and the words
"Corporate Seal, Delaware". The seal may be used by causing it or a facsimile
thereof to be impressed or affixed or reproduced or otherwise.
ARTICLE VIII
INDEMNIFICATION
Section 1. Power to Indemnify in Actions, Suits or Proceedings other
Than Those by or in the Right of the Corporation. Subject to Section 3 of this
Article VIII, the
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Corporation may indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative (other
than an action by or in the right of the Corporation) by reason of the fact
that he is or was a director or officer of the Corporation, or is or was a
director or officer of the Corporation serving at the request of the
Corporation as a director or officer, employee or agent of another corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise,
against expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding 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
Corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement, conviction, or upon
a plea of nolo contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful.
Section 2. Power to Indemnify in Actions, Suits or Proceedings by or
in the Right of the Corporation. Subject to Section 3 of this Article VIII,
the Corporation may indemnify
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any person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the right of the
Corporation to procure a judgment in its favor by reason of the fact that he is
or was a director or officer of the Corporation, or is or was a director or
officer of the Corporation serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit 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 Corporation; except that no indemnification shall be
made in respect of any claim, issue or matter as to which such person shall
have been adjudged to be liable to the Corporation unless and only to the
extent that the Court of Chancery or the court in which such action or suit was
brought shall determine upon application that, despite the adjudication of
liability but in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses which the Court
of Chancery or such other court shall deem proper.
Section 3. Authorization of Indemnification. Any indemnification
under this Article VIII (unless ordered by a court) shall be made by the
Corporation only as authorized in the specific case upon a determination that
indemnification of the director or officer is proper in the circumstances
because
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he has met the applicable standard of conduct set forth in Section 1 or Section
2 of this Article VIII, as the case may be. Such determination shall be made
(i) by the Board of Directors by a majority vote of a quorum consisting of
directors who were not parties to such action, suit or proceeding, or (ii) if
such a quorum is not obtainable, or, even if obtainable a quorum of
disinterested directors so directs, by independent legal counsel in a written
opinion, or (iii) by the stockholders. To the extent, however, that a director
or officer of the Corporation has been successful on the merits or otherwise in
defense of any action, suit or proceeding described above, or in defense of any
claim, issue or matter therein, he may be indemnified against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection therewith, without the necessity of authorization in the specific
case.
Section 4. Good Faith Defined. For purposes of any determination
under Section 3 of this Article VIII, a person shall be deemed to have acted in
good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the Corporation, or, with respect to any criminal action
or proceeding, to have had no reasonable cause to believe his conduct was
unlawful, if his action is based on the records or books of account of the
Corporation or another enterprise, or on information supplied to him by the
officers of the Corporation or another enterprise in the course of their
duties, or on the advice of legal counsel for the Corporation or another
enterprise or on information or records
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given or reports made to the Corporation or another enterprise by an
independent certified public accountant or by an appraiser or other expert
selected with reasonable care by the Corporation or another enterprise. The
term "another enterprise" as used in this Section 4 shall mean any other
corporation or any partnership, joint venture, trust, employee benefit plan or
other enterprise of which such person is or was serving at the request of the
Corporation as a director, officer, employee or agent. The provisions of this
Section 4 shall not be deemed to be exclusive or to limit in any way the
circumstances in which a person may be deemed to have met the applicable
standard of conduct set forth in Sections 1 or 2 of this Article VIII, as the
case may be.
Section 5. Indemnification by a Court. Notwithstanding any contrary
determination in the specific case under Section 3 of this Article VIII, and
notwithstanding the absence of any determination thereunder, any director or
officer may apply to any court of competent jurisdiction in the State of
Delaware for indemnification to the extent otherwise permissible under Sections
1 and 2 of this Article VIII. The basis of such indemnification by a court
shall be a determination by such court that indemnification of the director or
officer is proper in the circumstances because he has met the applicable
standards of conduct set forth in Sections 1 or 2 of this Article VIII, as the
case may be. Neither a contrary determination in the specific case under
Section 3 of this Article VIII nor the absence of any determination thereunder
shall be a defense to such application or create a presumption
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that the director or officer seeking indemnification has not met any applicable
standard of conduct. Notice of any application for indemnification pursuant to
this Section 5 shall be given to the Corporation promptly upon the filing of
such application. If successful, in whole or in part, the director or officer
seeking indemnification may also be entitled to be paid the expense of
prosecuting such application.
Section 6. Expenses Payable in Advance. Expenses incurred by a
director or officer in defending or investigating a threatened or pending
action, suit or proceeding shall be paid by the Corporation in advance of the
final disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of such director or officer to repay such amount if
it shall ultimately be determined that he is not entitled to be indemnified by
the Corporation as authorized in this Article VIII.
Section 7. Nonexclusivity of Indemnification and Advancement of
Expenses. The indemnification and advancement of expenses provided by or
granted pursuant to this Article VIII shall not be deemed exclusive of any
other rights to which those seeking indemnification or advancement of expenses
may be entitled under any By-Law, agreement, contract, vote of stockholders or
disinterested directors or pursuant to the direction (howsoever embodied) of
any court of competent jurisdiction or otherwise, both as to action in his
official capacity and as to action in another capacity while holding such
office, it being the policy of the Corporation that
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indemnification of the persons specified in Sections 1 and 2 of this Article
VIII may be made to the fullest extent permitted by law. The provisions of
this Article VIII shall not be deemed to preclude the indemnification of any
person who is not specified in Sections 1 or 2 of this Article VIII but whom
the Corporation has the power or obligation to indemnify under the provisions
of the General Corporation Law of the State of Delaware, or otherwise.
Section 8. Insurance. The Corporation may purchase and maintain
insurance on behalf of any person who is or was a director or officer of the
Corporation, or is or was a director or officer of the Corporation serving at
the request of the Corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust, employee benefit plan
or other 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 have the power or the obligation to indemnify him against
such liability under the provisions of this Article VIII.
Section 9. Certain Definitions. For purposes of this Article VIII,
references to "the Corporation" shall include, in addition to the resulting
corporation, any constituent corporation (including any constituent of a
constituent) absorbed in a consolidation or merger which, if its separate
existence had continued, would have had power and authority to indemnify its
directors or officers, so that any person who is or was a director or officer
of such constituent corporation,
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or is or was a director or officer of such constituent corporation serving at
the request of such constituent corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise, shall stand in the same position under the
provisions of this Article VIII with respect to the resulting or surviving
corporation as he would have with respect to such constituent corporation if
its separate existence had continued. For purposes of this Article VIII,
references to "fines" shall include any excise taxes assessed on a person with
respect to an employee benefit plan; and references to "serving at the request
of the Corporation" shall include any service as a director, officer, employee
or agent of the Corporation which imposes duties on, or involves services by,
such director or officer with respect to an employee benefit plan, its
participants or beneficiaries; and a person who acted in good faith and in a
manner he reasonably believed to be in the interest of the participants and
beneficiaries of an employee benefit plan shall be deemed to have acted in a
manner "not opposed to the best interests of the Corporation" as referred to in
this Article VIII.
Section 10. Survival of Indemnification and Advancement of Expenses.
The indemnification and advancement of expenses provided by, or granted
pursuant to, this Article VIII may, unless otherwise provided when authorized
or ratified, continue as to a person who has ceased to be a director or officer
and shall inure to the benefit of the heirs, executors and administrators of
such a person.
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Section 11. Limitation on Indemnification. Notwithstanding anything
contained in this Article VIII to the contrary, except for proceedings to
enforce rights to indemnification (which shall be governed by Section 5
hereof), the Corporation shall not be obligated to indemnify any director or
officer in connection with a proceeding (or part thereof) initiated by such
person unless such proceeding (or part thereof) was authorized or consented to
by the Board of Directors of the Corporation.
Section 12. Indemnification of Employees and Agents. The Corporation
may, to the extent authorized from time to time by the Board of Directors,
provide rights to indemnification and to the advancement of expenses to
employees and agents of the Corporation similar to those conferred in this
Article VIII to directors and officers of the Corporation.
ARTICLE IX
AMENDMENTS
Section 1. These By-Laws may be altered, amended or repealed, in
whole or in part, or new By-Laws may be adopted by the stockholders or by the
Board of Directors, provided, however, that notice of such alteration,
amendment, repeal or adoption of new By-Laws be contained in the notice of such
meeting of stockholders or Board of Directors as the case may be. All such
amendments must be approved by either the
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holders of a majority of the outstanding capital stock entitled to vote thereon
or by a majority of the entire Board of Directors then in office.
Section 2. Entire Board of Directors. As used in this Article IX and
in these By-Laws generally, the term "entire Board of Directors" means the
total number of directors which the Corporation would have if there were no
vacancies.
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EXHIBIT 23.1
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
The Board of Directors
Furr's/Bishop's, Incorporated:
We consent to the use of our report incorporated herein by reference and to
the reference to our firm under the heading "Experts" in the Prospectus. The
report of KPMG Peat Marwick LLP covering the December 31, 1996 consolidated
financial statements refers to a change in method of accounting, effective
January 2, 1996, for impairment of long-lived assets and for long-lived assets
to be disposed of to conform to Statement of Financial Accounting Standards No.
121.
KPMG PEAT MARWICK LLP
Dallas, Texas
December 15, 1997
<PAGE> 1
EXHIBIT 23.2
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We consent to the incorporation by reference in this Post-Effective
Amendment No. 2 to Registration Statement No. 333-4576 of Furr's/Bishop's,
Incorporated on Form S-1 of our report dated March 28, 1996, appearing in the
Annual Report on Form 10-K of Furr's/Bishop's, Incorporated for the 52 week year
ended December 31, 1996 and to the reference to us under the heading "Experts"
in the Prospectus, which is part of such Registration Statement.
DELOITTE & TOUCHE LLP
Dallas, Texas
December 16, 1997
