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As filed with the Securities and Exchange Commission on September 9, 1997
Registration No. 333-
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
SMART & FINAL INC.
(Exact name of registrant as specified in its charter)
Delaware 95-4079584
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
4700 South Boyle Avenue
Los Angeles, California 90058
(Address, including zip code, of Registrant's principal executive offices)
SMART & FINAL INC. STOCK INCENTIVE PLAN
SMART & FINAL INC. LONG-TERM EQUITY COMPENSATION PLAN
SMART & FINAL INC. NON-EMPLOYEE DIRECTOR STOCK PLAN
(Full titles of the plans)
Donald G. Alvarado, Esq.
Senior Vice President, Law/Development
Smart & Final Inc.
4700 South Boyle Avenue, Los Angeles, California 90058
(213)589-1054
(Name, address and telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Title of Amount Proposed Proposed Amount of
Securities to be to be Maximum Offering Maximum Aggregate Registration
Registered Registered(1) Price Per Share(2) Offering Price (2) Fee
- --------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock,
$0.01 par value 2,611,405 $19.2363 $50,233,770.00 $15,222.35
- --------------------------------------------------------------------------------------
</TABLE>
(see notes on following page)
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(1) Includes 1,325,000 shares to be registered under the Smart & Final Inc.
Stock Incentive Plan (the "Incentive Plan"), 1,270,000 shares to be registered
under the Smart & Final Inc. Long-Term Equity Compensation Plan (the
"Compensation Plan"), and 16,405 shares to be registered under the Smart & Final
Inc. Non-Employee Director Stock Plan (the "Director Plan"). Excludes 1,125,000
shares reserved under the Incentive Plan and previously registered on Form S-8
Registration Statement No. 33-60502, and 8,595 shares reserved under the
Director Plan and previously issued.
(2) The Proposed Maximum Offering Price Per Share was estimated in part pursuant
to Rule 457(h) under the Securities Act of 1933, as amended (the "Securities
Act"), and, in part, pursuant to Rule 457(c) under the Securities Act. With
respect to 1,138,791 shares registered hereunder and subject to outstanding
options to purchase Common Stock under the Incentive Plan, and 258,857 shares
subject to outstanding options to purchase Common Stock under the Compensation
Plan, the Proposed Maximum Offering Price Per Share was estimated pursuant to
Rule 457(h), under which the per share price of options to purchase stock under
an employee stock option plan may be estimated by reference to the exercise
price of such options. The weighted average exercise price of (i) the 1,138,791
shares subject to outstanding options under the Incentive Plan is $14.529, and
(ii) the 258,857 shares subject to outstanding options under the Compensation
Plan is $21.125. With respect to the (i) 186,209 shares of Common Stock
available for future grant under the Incentive Plan, (ii) 1,011,143 shares of
Common Stock available for future grant under the Compensation Plan, and (iii)
16,405 shares of Common Stock available for issuance under the Director Plan,
the estimated Proposed Maximum Offering Price Per Share was estimated pursuant
to Rule 457(c) whereby the per share price was determined by reference to the
average between the high and low price reported on the New York Stock Exchange
on September 5, 1997, which average was $23.25. The number referenced in
the table above under "Proposed Maximum Offering Price Per Share" represents a
weighted average of the foregoing estimates calculated in accordance with Rules
457(h) and 457(c).
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
There are hereby incorporated by reference in this Registration Statement
the following documents and information heretofore filed with the Securities and
Exchange Commission (the "Commission"):
(a) The Registrant's Annual Report on Form 10-K for the fiscal year ended
December 29, 1996, filed with the Commission on March 25, 1997, pursuant to the
Securities Exchange Act of 1934 (the "Exchange Act")
(b) The Registrant's Quarterly Report on Form 10-Q for the fiscal quarter
ended
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March 23, 1997, filed with the Commission on May 2, 1997, pursuant to the
Exchange Act.
(c) The Registrant's Quarterly Report on Form 10-Q for the fiscal quarter
ended June 15, 1997, filed with the Commission on July 29, 1997, pursuant to
the Exchange Act.
(d) The description of the Registrant's Common Stock to be offered hereby
is contained in the Registrant's Registration Statement on Form 8-A filed with
the Commission on July 19, 1991, pursuant to Section 12(b) of the Exchange
Act, including any amendment or report filed for the purpose of updating such
description.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-
effective amendment which indicates that all securities offered have been sold
or which deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference in this registration statement and to be part hereof
from the date of filing such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Pursuant to Section 102(b)(7) of the Delaware General Corporation Law (the
"DGCL"), the Certificate of Incorporation of the Registrant contains provisions
which eliminate the personal liability of the its directors for monetary damages
resulting from breaches of their fiduciary duty other than liability for
breaches of the duty of loyalty, acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of law, violations under
Section 174 of the DGCL or any transaction from which the director derived an
improper personal benefit.
Section 145 of the DGCL permits, and under certain circumstances requires,
the Registrant to indemnify its directors, officers, employees, and agents
subject to certain conditions and limitations. The Registrant's Bylaws contain
provisions to indemnify its directors and officers to the fullest extent
permitted by Section 145 of the DGCL, including circumstances in which
indemnification is otherwise discretionary. In addition, the Registrant
maintains officers' and directors' liability insurance which insures against
liabilities that its officers and directors may incur in such capacities. A
Registration Rights Agreement dated as of August 6, 1991, among the Registrant,
Casino USA, Inc. and Robert J. Emmons, provides for indemnification by Casino
USA, Inc. and Mr. Emmons of the directors and officers of the Company signing a
registration
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statement filed pursuant to such agreement and certain controlling persons of
the Company against certain liabilities, including those arising under the
Securities Act. Casino USA, Inc. beneficially owns in excess of 56% of the
outstanding shares of the Registrant's Common Stock, and Mr. Emmons is Chairman
of the Registrant's Board of Directors.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
EXHIBIT
NUMBER
------
5.1 Opinion of Counsel as to legality of securities being registered.
10.16(1) Smart & Final Inc. Stock Incentive Plan
10.71(2) Smart & Final Inc. Long-Term Equity Compensation Plan
10.72(3) Smart & Final Inc. Non-Employee Director Stock Plan
23.1 Consent of Arthur Andersen LLP, Independent Auditors
23.2 Consent of Counsel (contained in Exhibit 5.1)
24.1 Power of Attorney (contained on signature pages)
(1) Incorporated by reference to Exhibit 10.16 included with the Registrant's
Registration Statement on Form S-1 (Registration No. 33-41103) filed with the
Commission which became effective on July 30, 1991.
(2) Incorporated by reference to Exhibit A contained in the Registrant's
definitive Proxy Statement for its annual meeting on May 9, 1997, included in
its Schedule 14A Information (Commission File No. 001-10811) filed with the
Commission on April 8, 1997.
(3) Incorporated by reference to Exhibit A contained in the Registrant's
definitive Proxy Statement for its annual meeting on May 10, 1996, included in
its Schedule 14A Information (Commission File No. 001-10811) filed with the
Commission on April 9, 1996.
ITEM 9. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement 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.
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(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Securities Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Los Angeles, State of California, on September 8,
1997.
SMART & FINAL, INC.
By /s/ Martin A. Lynch
--------------------------------
Martin A. Lynch
Executive Vice President, Principal,
Chief Financial Officer and Principal
Accounting Officer of the Company
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POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Roger M. Laverty, III, and Martin A.
Lynch, or either of them, his attorneys-in-fact, with full power of
substitution, for him in any and all capacities, to sign any amendments to this
Registration Statement on Form S-8, and to file the same, with exhibits thereto
and other documents in connection therewith, with the Securities and Exchange
Commission, hereby ratifying and confirming all that said attorneys-in-fact, or
their substitutes, may do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Robert J. Emmons Chairman of the Board and September 8, 1997
- -------------------------- Director
Robert J. Emmons (Principal Executive Officer)
/s/ Roger M. Laverty, III Chief Executive Officer, September 8, 1997
- -------------------------- President, Chief Operating
Roger M. Laverty, III Officer and Director
/s/ Martin A. Lynch Executive Vice President, Chief September 8, 1997
- -------------------------- Financial Officer and Director
Martin A. Lynch (Principal Financial Officer and
Principal Accounting Officer)
/s/ Pierre Bouchut Director September 8, 1997
- --------------------------
Pierre Bouchut
/s/ Chistian P. Couvreux Director September 8, 1997
- --------------------------
Christian P. Couvreux
/s/ Timm F. Crull Director September 8, 1997
- --------------------------
Timm F. Crull
</TABLE>
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<TABLE>
<S> <C>
/s/ James S. Gold Director September 8, 1997
- --------------------------
James S. Gold
/s/ Antoine Guichard Director September 8, 1997
- --------------------------
Antoine Guichard
/s/ David J. McLaughlin Director September 8, 1997
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David J. McLaughlin
/s/ Thomas G. Plaskett Director September 8, 1997
- --------------------------
Thomas G. Plaskett
/s/ Ross E. Roeder Director September 8, 1997
- --------------------------
Ross E. Roeder
</TABLE>
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
________________________________
EXHIBITS
________________________________
Registration Statement on Form S-8
Smart & Final Inc.
INDEX TO EXHIBITS
EXHIBIT
NUMBER
------
5.1 Opinion of Counsel as to legality of securities being registered.
10.16(1) Smart & Final Inc. Stock Incentive Plan
10.71(2) Smart & Final Inc. Long-Term Equity Compensation Plan
10.72(3) Smart & Final Inc. Non-Employee Director Stock Plan
23.1 Consent of Arthur Andersen LLP, Independent Auditors
23.2 Consent of Counsel (contained in Exhibit 5.1)
24.1 Power of Attorney (contained on signature pages)
(1) Incorporated by reference to Exhibit 10.16 included with the Registrant's
Registration Statement on Form S-1 (Registration No. 33-41103) filed with the
Commission which became effective on July 30, 1991.
(2) Incorporated by reference to Exhibit A contained in the Registrant's
definitive Proxy Statement for its annual meeting on May 9, 1997, included in
its Schedule 14A Information (Commission File No. 001-10811) filed with the
Commission on April 8, 1997.
(3) Incorporated by reference to Exhibit A contained in the Registrant's
definitive Proxy Statement for its annual meeting on May 10, 1996, included in
its Schedule 14A Information (Commission File No. 001-10811) filed with the
Commission on April 9, 1996.
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EXHIBIT 5.1
September 8, 1997
Smart & Final Inc.
4700 South Boyle Avenue
Los Angeles, California 90058
RE: REGISTRATION STATEMENT ON FORM S-8
Ladies and Gentlemen:
I have examined the Registration Statement on Form S-8 to be filed by you
with the Securities and Exchange Commission on or about September ___, 1997 (the
"Registration Statement"), in connection with the registration under the
Securities Act of 1933, as amended, of 2,611,405 shares (the "Shares"), reserved
for issuance under the Smart & Final Inc. Stock Incentive Plan, Long-Term Equity
Compensation Plan and Non-Employee Director Stock Plan (collectively, the
"Plans"). As counsel, I have reviewed the proceedings that have been taken and
are proposed to be taken in the future in connection with the issuance and sale
of the Shares, and have reviewed such other records and documents as I deem
necessary as a basis for this opinion. I have assumed the genuineness and
authenticity of all documents submitted to me as copies thereof, and the due
execution and delivery of all documents where due execution and delivery are a
prerequisite to the effectiveness thereof.
On the basis of the foregoing and in reliance thereon, it is my opinion
that, when issued and sold pursuant to the provisions of the Plans and the
Registration Statement, the Shares will be legally and validly issued, fully
paid and non-assessable.
I consent to the use of this opinion as an exhibit to the Registration
Statement and further consent to the use of my name wherever appearing in the
Registration Statement and any amendments thereto.
Very truly yours,
/s/ Donald G. Alvarado
-----------------------------------------
Donald G. Alvarado, Esq.
Senior Vice President, Law/Development
<PAGE>
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement on
Form S-8 of certain shares to be issued under the Smart & Final Inc. Stock
Incentive Plan, Long-Term Equity Compensation Plan and Non-Employee Director
Stock Plan of our report dated February 10, 1997 on the financial statements of
Smart & Final Inc. set forth in the Annual Report on Form 10-K for the year
ended December 29, 1996 and the related financial statement schedule included
therein filed by Smart & Final Inc. with the Securities and Exchange Commission.
/s/ Arthur Andersen LLP
Los Angeles, California
September 9, 1997
