As filed with the Securities and Exchange Commission on August 31, 1999
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
FURR'S/BISHOP'S, INCORPORATED
(Exact name of registrant as specified in its charter)
Delaware 75-2350724
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
3001 E. President George Bush Highway
Suite 200
Richardson, TX 75082-2800
(972) 808-2923
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
FURR'S/BISHOP'S, INCORPORATED
1995 STOCK OPTION PLAN
Phillip Ratner
President and Chief Executive Officer
FURR'S/BISHOP'S, INCORPORATED
3001 E. President George Bush Highway
Suite 200
Richardson, TX 75082-2800
(972) 808-2923
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
With copies to:
Michael W. Tankersley
BRACEWELL & PATTERSON, L.L.P.
Lincoln Plaza
500 N. Akard Street, Suite 4000
Dallas, Texas 75201-3387
(214) 758-1000
CALCULATION OF REGISTRATION FEE
===============================================================================
Title of Proposed Proposed
Securities Maximum Maximum Amount of
to be Amount to be Offering Price Aggregate Registration
Registered registered(1)(2) Per Share (3) Offering Price Fee
- -------------------------------------------------------------------------------
Common Stock,
par value $0.01
per share 1,200,000 (1) $0.75 (2) $900,000 (2) $250
- -------------------------------------------------------------------------------
Interests in
the Plan (3) (3) (3) (3)
===============================================================================
(1) Pursuant to Rule 416, includes any additional shares issuable pursuant to
the antidilution provisions of the plan.
(2) Estimated, pursuant to Rule 457(h), soley for the purpose of calculating
the registration fee based on the average of the high and low sale prices
of the Common Stock on the New York Stock Exchange on August 26, 1999,
which was $0.75 for a total maximum offering price for such 1,200,000
shares of $900,000.
(3) Pursuant to Rule 416(c), this Registration Statement also covers an
indeterminate amount of interests in the Plan to be offered or sold
pursuant to the Plan, such interests constituting separate securities
required to be registered under the Securities Act of 1933, as amended,
and not requiring a separate registration fee.
<PAGE>
REGISTRATION STATEMENT
ON
FORM S-8
PART II.
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
Incorporated by reference in this Registration Statement are the
following documents filed by Furr's/Bishop's, Incorporated ("Registrant") with
the Securities and Exchange Commission (the "Commission"):
(a) Registrant's Registration Statement on Form S-1 (File No.
333-4576), filed pursuant to the Securities Act of 1933, as
amended.
(b) Registrant's (i) annual report on Form 10-K for the period ended
December 29, 1998, (ii) quarterly report on Form 10-Q for the
period ended March 30, 1999 and (iii) quarterly report on Form
10-Q for the period ended June 29, 1999, each filed pursuant to
Section 13(a) of the Securities Exchange Act of 1934, as
amended.
(c) The description of Registrant's Common Stock contained in the
Registration Statement on Form 8-A filed on November 28, 1995 as
amended by Form 8A/A filed December 5, 1995.
All documents subsequently filed by Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), prior to the filing of a post- effective amendment which
indicates that all securities offered have been sold or which deregisters all
securities then remaining unsold, shall be deemed to be incorporated by
reference herein and to be a part hereof from the date of filing of such
documents. Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a statement
contained herein or in any other subsequently filed document which also is or
is deemed to be incorporated by reference herein modifies or supersedes such
statement. Any statement so modified or superseded shall not be deemed, except
as so modified or superseded, to constitute a part of this Registration
Statement.
Item 4. Description of Securities.
Not applicable
Item 5. Interests of Named Experts and Counsel.
Not applicable
Item 6. Indemnification of Directors and Officers.
Registrant is a Delaware corporation. Section 102(b)(7) of the
General Corporation Law of Delaware enables a Delaware corporation to provide
in its certificate of incorporation, and Registrant has so provided in its
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Amended and Restated Certificate of Incorporation ("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 General Corporation Law
of Delaware (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 General Corporation Law of Delaware 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 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 Registrant provide that, to the fullest extent permitted
by the General Corporation Law of the State of Delaware, Registrant 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 Registrant or is or was
serving at the request of Registrant as a director, officer, employee or agent
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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 office for expenses incurred while acting in his or
her capacity as a director or officer, who has delivered an undertaking to the
corporation 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 by
and between Registrant and such director pursuant to which Registrant 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 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 Registrant provides any greater right of
indemnification, in any respect, to any other person serving as an officer or
director of Registrant, 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.
Registrant has purchased a directors and officers insurance policy
under which each director and certain officers of Registrant are insured
against certain liabilities.
Item 7. Exemption from Registration Claimed.
Not applicable.
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Item 8. Exhibits.
Exhibit
Number Description
4.1 1995 Stock Option Plan of Furr's/Bishop's, Incorporated (incorporated
by reference from Annex B of the Prospectus included in Registrant's
Registration Statement on Form S-4, File No. 33-92236)
4.2 Amended and Restated Certificate of Incorporation of Registrant
(incorporated by reference from Exhibit 3.1 of Registrant's
Registration Statement on Form S-4, File No. 33-38978)
4.3 Certificate of Amendment to the Amended and Restated Certificate of
Incorporation of Registrant (incorporated by reference from Annex D
of the Prospectus included in Registrant's Registration Statement on
Form S-4, File No. 33-92236)
4.4 Second Certificate of Amendment to the Amended and Restated
Certificate of Incorporation of Registrant (incorporated by reference
from Registrant's Form 10-K for the fiscal year ended January 2,
1996)
4.5 By-laws of Registrant (incorporated by reference from Exhibit 3.2 of
Registrant's Registration Statement on Form S-4, File No. 33-38978)
5.1 Opinion of Bracewell & Patterson, L.L.P
23.1 Consent of KPMG LLP
23.3 Consent of Bracewell & Patterson, L.L.P. (included in Exhibit 5.1)
24.1 Power of Attorney (included on the signature page of this
Registration Statement)
Item 9. Undertakings.
A. Undertaking to Update
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 this Registration Statement. Notwithstanding the
foregoing, any increase or decrease in volume of securities offered
(if the total dollar value of securities offered would not exceed
that which was registered) and any deviation from the low or high
and of the estimated maximum offering range may be reflected in the
form of a prospectus filed with the Commission pursuant to Rule
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424(b) if, in the aggregate, the changes in volume and price
represent no more than a 20 percent change in the maximum aggregate
offering price set forth in the "Calculation of Registration Fee"
table in the effective registration statement.
(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 this
Registration Statement;
Provided, however, that paragraphs (A)(1)(i) and (A)(1)(ii) of this
section do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic
reports filed by the registrant pursuant to Section 13 or Section 15(d)
of the Exchange Act, that are incorporated by reference in this
Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to
be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
B. Undertaking With Respect to Documents Incorporated by Reference
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing
of the registrant's annual report pursuant to Section 13(a) or Section
15(d) of the Securities Exchange Act of 1934 that is incorporated by
reference in the registration statement shall be deemed to be a new
registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
C. Undertaking With Respect to Indemnification
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the 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.
[SIGNATURE PAGE FOLLOWS]
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in Richardson, Texas on this 27 day of August, 1999.
FURR'S/BISHOP'S, INCORPORATED
By: /s/ Phillip Ratner
--------------------------------
Phillip Ratner
President and
Chief Executive Officer
POWER OF ATTORNEY
We, the undersigned directors and officers of Furr's/Bishop's, Inc.,
constitute and appoint Phillip Ratner or Paul G. Hargett, or either of them,
our true and lawful attorneys and agents, to do any and all acts and things in
our name and on our behalf in our capacities as directors and officers, and to
execute any and all instruments for us and in our names in the capacities
indicated below, which said attorneys and agents, or either of them, may deem
necessary or advisable to enable said corporation to comply with the Securities
Act of 1933, as amended, and any rules, regulations and requirements of the
Securities and Exchange Commission, in connection with the filing of this
Registration Statement, including specifically without limitation, power and
authority to sign for any of us, in our names in the capacities indicated
below, any and all amendments hereto, including post-effective amendments; and
we do each hereby ratify and confirm all that the said attorneys and agents, or
either of them, shall do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on August 27, 1999.
SIGNATURE TITLE
/s/ Suzanne Hopgood Director, Chairman of the Board
- -----------------------------------
Suzanne Hopgood
/s/ Jacob C. Baum Director
- -----------------------------------
Jacob C. Baum
/s/ Ben Evans Director
- -----------------------------------
Ben Evans
/s/ Margaret Bertelsen Hampton Director
- -----------------------------------
Margaret Bertelsen Hampton
/s/ Paul G. Hargett Chief Financial Officer
- -----------------------------------
Paul G. Hargett
/s/ Damien W. Kovary Director
- -----------------------------------
Damien W. Kovary
/s/ William J. Nightingale Director
- -----------------------------------
William J. Nightingale
/s/ Gilbert C. Osnos Director
- -----------------------------------
Gilbert C. Osnos
/s/ Max Pine Director
- -----------------------------------
Max Pine
/s/ Barry W. Ridings Director
- -----------------------------------
Barry W. Ridings
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EXHIBIT INDEX
Sequentially
Exhibit Numbered
Number Description Page
4.1 1995 Stock Option Plan of Furr's/Bishop's, Incorporated
(incorporated by reference from Annex B of the Prospectus
included in Registrant's Registration Statement on Form
S-4, File No. 33-92236)
4.2 Amended and Restated Certificate of Incorporation of
Registrant (incorporated by reference from Exhibit 3.1
of Registrant's Registration Statement on Form S-4,
File No. 33-38978).
4.3 Certificate of Amendment to the Amended and Restated
Certificate of Incorporation of Registrant (incorporated
by reference from Annex D of the Prospectus included in
Registrant's Registration Statement on Form S-4,
File No. 33-92236)
4.4 Second Certificate of Amendment to the Amended and
Restated Certificate of Incorporation of Registrant
(incorporated by reference from Registrant's Form 10-K
for the fiscal year ended January 2, 1996)
4.5 By-laws of Registrant (incorporated by reference from
Exhibit 3.2 of Registrant's Registration Statement on
Form S-4, File No. 33-38978)
5.1 Opinion of Bracewell & Patterson, L.L.P 9
23.1 Consent of KPMG LLP 10
23.3 Consent of Bracewell & Patterson, L.L.P. (included in 9
Exhibit 5.1)
24.1 Power of Attorney (included on the signature page of
this Registration Statement) 7
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EXHIBIT 5.1
OPINION OF BRACEWELL & PATTERSON, L.L.P.
August 31, 1999
Furr's/Bishop's, Incorporated
3001 E. President George Bush Highway
Suite 200
Richardson, TX 75082-2800
Ladies and Gentlemen:
We have acted as counsel to Furr's/Bishop's, Incorporated, a Delaware
corporation (the "Company"), in connection with the proposed issuance by the
Company of up to an additional 1,200,000 shares (the "Shares") of Common Stock,
par value $0.01 per share, upon the exercise of rights granted to certain
eligible employees of the Company under the 1995 Stock Option Plan of
Furr's/Bishop's, Incorporated (the "Plan"). The Company now is filing a
Registration Statement on Form S-8 relating to the Shares (the "Registration
Statement").
We have examined originals or copies of (i) the Restated Articles of
Incorporation of the Company, as amended, (ii) the Amended and Restated Bylaws
of the Company, (iii) the Plan, (iv) certain resolutions of the Board of
Directors of the Company and (v) such other documents and records as we have
deemed necessary and relevant for purposes hereof. In addition, we have relied
on certificates of officers of the Company as to certain matters of fact
relating to this opinion and have made such investigations of law as we have
deemed necessary and relevant as a basis hereof.
We have assumed the genuineness of all signatures, the authenticity of all
documents, certificates and records submitted to us as originals, the
conformity to original documents, certificates and records of all documents,
certificates and records submitted to us as copies, and the truthfulness of all
statements of fact contained therein.
Based upon the foregoing and subject to the limitations and assumptions set
forth herein and having due regard for such legal considerations as we deem
relevant, we are of the opinion that the Shares have been duly and validly
authorized and when issued and paid for in accordance with the terms of the
Plan, for a consideration at least equal to the par value thereof, will be
validly issued, fully paid and nonassessable.
The foregoing opinion is based on and is limited to the General Corporation Law
of the State of Delaware, and we render no opinion with respect to the law of
any other jurisdiction. We hereby consent to the filing of this opinion with
the Commission as Exhibit 5.1 to the Registration Statement. This consent is
not to be construed as an admission that we are a person whose consent is
required to be filed with the Registration Statement under the provisions of
the Act.
Very truly yours,
/s/ Bracewell & Patterson, L.L.P.
-----------------------------------
Bracewell & Patterson, L.L.P.
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EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the use of our report incorporated herein by reference.
/s/ KPMG LLP
Dallas, Texas
August 27, 1999
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