UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
Seaway Food Town, Inc.
(Exact name of registrant as specified in its charter)
Ohio 34-4471466
(State or other jurisdiction of organization) (I.R.S. Employer I.D. No.)
1020 Ford Street, Maumee, Ohio 43537
(Address of Principal Executive Offices) (Zip Code)
Seaway Food Town, Inc. Second Amended and Restated
Employee Retirement Savings Plan
(Full title of the plan)
Gary D. Sikkema, Esq.
608 Madison Avenue, Suite 1000
Toledo, OH 43604-1169
(Name and address of agent for service)
(419) 241-2201
(Telephone number, including area code, of agent for service)
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
Proposed Proposed maximum
Title of Amount to maximum aggregate Amount of
Securities to be offering price offering price Registration
be registered registered per share (1) fee
- ------------- ---------- -------------- ---------------- ------------
<S> <C> <C> <C> <C>
Common Stock
without par
value 400,000 $14.6875 $5,875,000 $1,633.25
</TABLE>
In addition, pursuant to Rule 416(c) under the Securities
Act of 1933, this registration statement also covers an
indeterminate amount of interests to be offered or sold pursuant
to the employee benefit plan(s) described herein.
(1) Estimated in accordance with Rule 457(c) solely for the
purpose of calculating the registration fee and based upon the
average of the high and low prices as quoted on the NASDAQ Stock
Market for December 1, 1998.
Page 1 of 33
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information required in Part I of Form S-8 is set forth
in a single document entitled "Prospectus" which constitutes a part
of the Section 10(a) Prospectus to which this Registration Statement
relates but which is not filed herewith.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
Seaway Food Town, Inc. (the "Company") and the Seaway Food
Town, Inc. Second Amended and Restated Employee Retirement Savings
Plan (the "Plan") hereby state that the documents listed in (a)
through (d) below (S.E.C. file no. 0-80), other than the portions
of such documents, which by statute, by designation in such document
or otherwise, are not deemed to be filed with the Securities and
Exchange Commission or are not required to be incorporated herein
by reference, are incorporated by reference in this Registration
Statement, and further states that all documents subsequently filed
by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the
Securities Exchange Act of 1934, prior to the filing of a post-effective
amendment which indicates that all securities offered have been sold or
which de-registers 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 of such documents.
(a) The Company's Annual Report on Form 10-K for the year ended
August 29, 1998.
(b) All other reports filed pursuant to Section 13(a) or 15(d)
of the Securities Exchange Act of 1934 since August 29, 1998.
(c) The description of the Company's Common Stock contained in
the form 8-K filed on December 4, 1998.
(d) The Proxy Statement of the Company on Schedule 14A dated
December 4, 1998.
Any statement contained in a document incorporated or deemed to be
incorporated by reference in this Registration Statement shall be deemed
to be modified or superseded for purposes of this Registration Statement
to the extent that a statement contained in this Registration Statement
or in any other subsequently filed document that also is, or is deemed to
be, incorporated by reference in this Registration Statement modifies or
supersedes such statement. Any such statement so modified or superseded
shall not be deemed, except as so modified or superseded, to constitute
a part of this Registration Statement.
<PAGE>
IV
DESCRIPTION OF SECURITIES
Not applicable.
V
INTERESTS OF NAMED EXPERTS AND COUNSEL
The validity of the shares of Common Stock offered hereby will be passed
upon for the Company by Spengler Nathanson P.L.L., Toledo, Ohio. Gary D.
Sikkema, a partner of Spengler Nathanson P.L.L., is Secretary of the Company.
Joel A. Levine, Of Counsel to Spengler Nathanson P.L.L., is a Director of the
Company.
VI
INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Company's Amended Articles of Incorporation provide that the Company
shall indemnify every person who is or has been a director or officer of the
Company for and against any expenses and liabilities reasonably incurred by
him in connection with: (i) any action, suit or proceeding to which he may be
a party defendant; or (ii) any claim of liability asserted against him by
reason of his having been a director or officer of the Company. However,
the Company shall not indemnify a director or officer with respect to matters
in which he is adjudged liable for negligence or misconduct in the performance
of his duties as an officer or director nor in the case of a settlement
unless such settlement is found to be in the interest of the Company by the
court having jurisdiction over the action or by a majority of the directors of
the Company then in office other than the director or directors involved.
In general, under Section 1701.13(E) of the Ohio Revised Code, an Ohio
corporation is permitted to indemnify its present or former officers,
directors, employees and agents against liabilities and expenses incurred
by such persons in their capacities as such so long as they acted in good
faith and in a manner they reasonably believed to be in or not opposed to the
best interests of the corporation, provided that in any action by or in the
name of the corporation, if the person seeking indemnification was adjudged
to be liable for negligence, no indemnification is permitted unless the court
in which the action was brought specifically determines that such person is
fairly and reasonably entitled to indemnification in view of all of the
circumstances of the case. The statute also provides that an Ohio corporation
shall advance attorney's fees incurred by directors, and may advance such fees
incurred by executive officers, employees, agents and others, prior to the
final outcome of a matter, provided that persons seeking such advances
undertake to repay them if it is ultimately determined that such person is
<PAGE>
not entitled to indemnification (except in the case of directors who must
undertake to repay such advances only if it is proved by clear and
convincing evidence in a court of competent jurisdiction that the act
or failure to act in question was undertaken with deliberate intent to cause
injury to the corporation or is undertaken with reckless disregard for the
best interest of the corporation).
In addition, the Company has purchased insurance policies which provide
coverage for the acts and omissions of the Company's directors and officers in
certain situations.
VII
EXEMPTION FROM REGISTRATION CLAIMS
Not applicable.
VIII
EXHIBITS
Exhibit 4.1 Articles of Incorporation
Exhibit 4.2 Code of Regulations
Exhibit 5 Opinion of Spengler Nathanson P.L.L. regarding the
validity of the securities being registered
Exhibit 23.1 Consent of Ernst & Young LLP, Independent Auditors
Exhibit 23.2 Consent of Spengler Nathanson P.L.L.
An Internal Revenue Service determination has not been attached
hereto as an exhibit. In lieu thereof, the Company hereby undertakes to
submit, or already has submitted the plan and any amendments thereto to
the Internal Revenue Service in a timely manner and has made or will make
all changes required by the Internal Revenue Service in order to qualify
the plan.
IX
UNDERTAKINGS
A. The undersigned Company 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;
<PAGE>
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or the
most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in the Registration
Statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar
value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form
of prospectus filed with the Commission pursuant to Rule
424(b) if, in the aggregate, the changes in volume and price
represent no more than a 20 percent change in the maximum
aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective Registration
Statement;
(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.
Provided, however, that paragraphs (A)(1)(i) and (A)(1)(ii) do not apply
if the Registration Statement is on Form S-3, Form S-8 or Form F-3 and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Company pursuant to
Sections 13 or 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference 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 at the
termination of the offering.
B. The undersigned Company undertakes that, for purposes of determining
any liability under the Securities Act of 1933, each filing of the Company's
annual report pursuant to Sections 13(a) or 15(d) of the Securities Exchange
Act of 1934 (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Securities Exchange Act of
<PAGE>
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. Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Company pursuant to the foregoing provisions, or otherwise, the
Company 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 of 1933 and is, therefore, unenforceable. In the event that
a claim for indemnification against such liabilities (other than the payment
by the Company of expenses incurred or paid by a director, officer or
controlling person of the Company 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 Company 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 of 1933 and will be governed by the final
adjudication of such issue.
<PAGE>
SIGNATURES
The Company. Pursuant to the requirements of the Securities Act of 1933,
the Company 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 Maumee, State of Ohio, this 2nd
day of December, 1998.
SEAWAY FOOD TOWN, INC.
By: /s/ Richard B. Iott
Richard B. Iott,
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.
Signature Title Date
- ----------- ----- ----
/s/ Wallace D. Iott Chairman and Director December 2,1998
Wallace D. Iott
/s/ Richard B. Iott President, Chief Executive December 2, 1998
Richard B. Iott Officer and Director
/s/ David J. Walrod Executive Vice President December 2, 1998
David J. Walrod and Director
/s/ Waldo E. Yeager Chief Financial Officer, December 2, 1998
Waldo E. Yeager Treasurer and Director
/s/ Terry J. Dachenhaus Controller December 2, 1998
Terry J. Dachenhaus
/s/ Gary D. Sikkema Secretary December 2, 1998
Gary D. Sikkema
<PAGE>
Signature Title Date
- --------- ----- ----
/s/ Joel A. Levine Director December 2, 1998
Joel A. Levine
/s/ Richard K. Ransom Director December 2, 1998
Richard K. Ransom
/s/ Thomas M. O'Donnell Director December 2, 1998
Thomas M. O'Donnell
/s/ Eugene R. Wos Director December 2, 1998
Eugene R. Wos
/s/ W. Geoffrey Lyden Director December 2, 1998
W. Geoffrey Lyden
The Plan. Pursuant to the requirements of the Securities Act of 1933,
the Administrative Committee of the Plan caused this registration statement
to be signed on its behalf by the undersigned, thereunto duly authorized, in
the City of Maumee, State of Ohio, on December 2, 1998.
Seaway Food Town, Inc. Second Amended and Restated
Employee Retirement Savings Plan, Administrative Committee
By: /s/ Waldo E. Yeager
Waldo E. Yeager
<PAGE>
EXHIBIT 4.1
AMENDED ARTICLES OF INCORPORATION
OF
SEAWAY FOOD TOWN, INC.
FIRST: The name of said Corporation shall be SEAWAY FOOD TOWN, INC.
SECOND: The place in the State of Ohio where its principal office is located
is the City of Maumee, Lucas County.
THIRD: The purposes of the Corporation are:
1. To conduct, own, lease, manage and operate supermarkets, restaurants,
and general mercantile businesses at wholesale and retail, and to buy,
sell, produce and deal in all kinds of groceries, sundries, canned foods,
confectionery, vegetables, fruits, meats, fish, beverages, food products,
milk products, bakery products, and all other articles used and sold in
the grocery, baking, meat, supermarket, restaurant and general
mercantile business.
2. To take, lease, purchase or otherwise acquire, and to own, use, hold,
sell, convey, exchange, lease, mortgage, work, improve, develop, and
otherwise handle, deal in and dispose of real estate, real property, and
any interest or right therein.
3. To manufacture, purchase, or otherwise acquire, sell, assign and
transfer, exchange or otherwise dispose of, and to invest, trade, deal in
or deal with goods, wares, merchandise and personal property of every
class and description.
4. To purchase, acquire, hold, mortgage, pledge, hypothecate, loan
money upon, exchange, sell and otherwise deal in personal property
and real property of every kind, character and description whatsoever
and wheresoever situated, and any interest therein.
5. To acquire by purchase, subscription, underwriting, participation in
syndicates or otherwise, and to hold, own, sell, exchange, pledge,
hypothecate or otherwise dispose of shares of stock, bonds, mortgages,
<PAGE>
debentures, trust receipts, participation certificates, certificates of
beneficial interest, notes and other securities, obligations contracts,
choses in action, and evidences of indebtedness generally, or interests
therein, of any corporations, associations, firms, trusts, persons,
governments, states, municipalities and other organizations: to receive,
collect and dispose of interest, dividends and income upon, of or from
any of the foregoing; to exercise any and all rights and privileges of
individual ownership or interest in obligations, including the right to
vote thereon for any and all purposes, and to do any and all acts and
things for the preservation, protection, improvement and enhancement in
value thereof; and to aid, by loan, subsidy, guarantee or otherwise those
issuing, creating or responsible for same.
Each purpose specified in any clause or paragraph of this Article is an
independent purpose and shall not be limited or restricted by reference to or
inference from the terms of any other clause or paragraph of these Amended
Articles of Incorporation.
The Corporation reserves the right substantially to change its purposes.
If a change of purposes is authorized by the vote now or hereafter required by
statute, dissenting shareholders shall not have the appraisal or payment
rights provided by the Corporation Code of Ohio for dissenting shareholders.
FOURTH: The number of shares which the Corporation is authorized to have
outstanding is 12,300,000, consisting of 12,000,000 Common Shares,
without par value ("Common Shares") and 300,000 Serial Preferred Shares,
without par value ("Serial Preferred Shares").
The shares of such classes shall have the following express terms:
DIVISION A
EXPRESS TERMS OF COMMON SHARES
The Common Shares shall be subject to the express terms of the Serial
Preferred Shares and any series thereof. Each Common Share shall be equal to
every other Common Share. The holders of Common Shares shall be entitled to
one vote for each such share upon all matters presented to shareholders,
except those matters presented to the holders of Serial Preferred Shares for
voting thereon as a class.
<PAGE>
DIVISION B
EXPRESS TERMS OF SERIAL PREFERRED SHARES
Section 1. Serial Preferred Shares may be issued from time to time in one
or more series. All Serial Preferred Shares shall be of equal rank and shall
be identical, except in respect of the matters that may be fixed by the Board
of Directors as hereinafter provided, and each share of each series shall be
identical with all other shares of such series, except as to the date from
which dividends are cumulative.
Subject to the provisions of Sections 2 to 6, inclusive, of this Division
B, which provisions shall apply to all Serial Preferred Shares, the Board of
Directors hereby is authorized to cause Serial Preferred Shares to be issued
in one or more series and with respect to each such series prior to the
issuance thereof to fix:
(a) The designation of the series, which may be by distinguishing
number, letter or title.
(b) The number of shares of the series, which number the Board of
Directors may (except where otherwise provided in the creation of
the series) increase or decrease (but not below the number of
shares thereof then outstanding).
(c) The annual dividend rate of the series.
(d) The dates at which dividends, if declared, shall be payable, and the
dates from which dividends shall be cumulative.
(e) The redemption rights and price or prices, if any, for shares of the
series.
(f) The terms and amount of any sinking fund provided for the purchase
or redemption of shares of the series.
(g) The amounts payable on shares of the series in the event of any
voluntary or involuntary liquidation, dissolution or winding up of
the affairs of the Corporation.
(h) Whether the shares of the series shall be convertible into Common
Shares, and, if so, the conversion price or prices, any adjustments
thereof, and all other terms and conditions upon which such
conversion may be made.
<PAGE>
(i) Restrictions (in addition to those set forth in Section 6(b) of this
Division) on the issuance of shares of the same series or of any
other class or series.
The Board of Directors is authorized to adopt from time to time
amendments to the Amended Articles of Incorporation fixing, with respect to
each such series, the matters described in clauses (a) to (i), inclusive, of
this Section 1.
Section 2. The holders of Serial Preferred Shares of each series, in
preference to the holders of Common Shares and of any other class of shares
ranking junior to the Serial Preferred Shares, shall be entitled to receive
out of any funds legally available and when and as declared by the Board of
Directors dividends in cash at the rate for such series fixed in accordance
with the provisions of Section 1 of this Division B, payable quarterly on the
dates fixed for such series. No dividends may be paid upon or declared or set
apart for any of the Serial Preferred Shares for any quarterly dividend period
unless at the same time a like proportionate dividend for the same quarterly
dividend period, ratably in proportion to the respective annual dividend rates
fixed therefor, shall be paid upon or declared or set apart for all Serial
Preferred Shares of all series then issued and outstanding and entitled to
receive such dividend.
Section 3. (a) Subject to the express terms of each series and to the
provisions of Section 6(b)(iii) of this Division B, the Corporation may from
time to time redeem all or any part of the Serial Preferred Shares of any
series at the time outstanding (i) at the option of the Board of Directors at
the applicable redemption price for such series fixed in accordance with the
provisions of Section 1 of this Division B, or (ii) in fulfillment of the
requirement of any sinking fund provided for shares of such series at the
applicable sinking fund redemption price, fixed in accordance with the
provisions of Section 1 of this Division B, together in each case with an
amount equal to all dividends accrued and unpaid thereon (whether or not such
dividends shall have been earned or declared) to the redemption date.
(b) Notice of every such redemption shall be mailed, postage prepaid, to the
holders of record of the Serial Preferred Shares to be redeemed at their
respective addresses then appearing on the books of the Corporation, not less
than 30 days nor more than 60 days prior to the date fixed for such
redemption. At any time before or after notice has been given as above
provided, the Corporation may deposit the aggregate redemption price of the
Serial Preferred Shares to be redeemed with any bank or trust company in
Cleveland, Ohio, or Toledo, Ohio, having capital and surplus of more than
$5,000,000, named in such notice, and direct that such deposited amount be
<PAGE>
paid to the respective holders of the Serial Preferred Shares so to be
redeemed, in amounts equal to the redemption price of all Serial Preferred
Shares so to be redeemed, on surrender of the share certificate or
certificates held by such holders. Upon the making of such deposit such
holders shall cease to be shareholders with respect to such shares, and
after such notice shall have been given and such deposit shall have been
made such holders shall have no interest in or claim against the Corporation
with respect to such shares except only to receive such money from such bank
or trust company without interest or the right to exercise, before the
redemption date, any unexpired privileges of conversion. In case less than
all of the outstanding Serial Preferred Shares are to be redeemed, the
Corporation shall select pro rata or by lot the shares so to be redeemed in
such manner as shall be prescribed by its Board of Directors.
If the holders of Serial Preferred Shares which shall have been called
for redemption shall not, within six years after such deposit, claim the
amount deposited for the redemption thereof, any such bank or trust company
shall, upon demand, pay over to the Corporation such unclaimed amounts and
thereupon such bank or trust company and the Corporation shall be relieved
of all responsibility in respect thereof and to such holders.
(c) Any Serial Preferred Shares which are redeemed by the Corporation
pursuant to the provisions of this Section 3 and any Serial Preferred Shares
which are purchased and delivered in satisfaction of any sinking fund
requirements provided for shares of such series and any Serial Preferred
Shares which are converted in accordance with the express terms thereof shall
be canceled and not reissued. Any Serial Preferred Shares otherwise acquired
by the Corporation shall resume the status of authorized and unissued Serial
Preferred Shares without serial designation.
Section 4. (a) The holders of Serial Preferred Shares of any series shall, in
case of liquidation, dissolution or winding up of the affairs of the
Corporation, be entitled to receive in full out of the assets of the
Corporation, including its capital, before any amount shall be paid or
distributed among the holders of the Common Shares or any shares ranking junior
to the Serial Preferred Shares, the amounts fixed with respect to shares of
such series in accordance with Section 1 of this Division B, plus an amount
equal to all dividends accrued and unpaid thereon (whether or not such
dividends shall have been earned or declared) to the date of payment of the
amount due pursuant to such liquidation, dissolution or winding up of the
affairs of the Corporation. In case the net assets of the Corporation
legally available therefor are insufficient to permit the payment upon all
outstanding Serial Preferred Shares and any shares ranking on a parity
therewith of the full preferential amount to which they are respectively
entitled, then such net assets shall be distributed ratably upon outstanding
<PAGE>
Serial Preferred Shares and any shares ranking on a parity therewith in
proportion to the full preferential amount to which each such share is
entitled.
After payment to holders of Serial Preferred Shares of the full
preferential amounts as aforesaid, holders of Serial Preferred Shares as such
shall have no right or claim to any of the remaining assets of the
Corporation.
(b) The merger or consolidation of the Corporation into or with any other
corporation, or the merger of any other corporation into it, or the sale,
lease or conveyance of all or substantially all the property or business of
the Corporation, shall not be deemed to be a dissolution, liquidation or
winding up for the purposes of this Section 4.
Section 5. (a) The holders of Serial Preferred Shares shall be entitled to
one vote for each share; and, except as otherwise provided herein or required
by law, the holders of Serial Preferred Shares and the holders of Common
Shares shall vote together as one class on all matters. No adjustment of
the voting rights of holders of Serial Preferred Shares shall be made for
an increase or decrease in the number of Common Shares authorized or issued
or for share splits or combinations of the Common Shares or for share
dividends on any class of shares payable solely in Common Shares.
If, and so often as, the Corporation shall be in default in dividends in
an amount equivalent to six full quarterly dividends on any series of Serial
Preferred Shares at the time outstanding, whether or not earned or declared,
the holders of Serial Preferred Shares of all series, voting separately as a
class and in addition to all other rights to vote for Directors, shall be
entitled to elect, as herein provided, two members of the Board of Directors
of the Corporation; provided, however, that the holders of Serial Preferred
Shares shall not have or exercise such special class voting rights except at
meetings of the shareholders for the election of Directors at which the
holders of not less than 45% of the outstanding Serial Preferred Shares of
all series then outstanding are present in person or by proxy; and provided
further that the special class voting rights provided for herein when the same
shall have become vested shall remain so vested until all accrued and unpaid
dividends on the Serial Preferred Shares of all series then outstanding shall
have been paid, whereupon the holders of Serial Preferred Shares shall be
divested of their special class voting rights in respect of subsequent
elections of Directors, subject to the revesting of such special class voting
rights in the event hereinabove specified in this paragraph.
In the event of default entitling the holders of Serial Preferred Shares
to elect two Directors as above specified, a special meeting of the
shareholders for the purpose of electing such Directors shall be called by
<PAGE>
the Secretary of the Corporation upon written request of, or may be called by,
the holders of record of at least 15% of the Serial Preferred Shares of all
series at the time outstanding, and notice thereof shall be given in the same
manner as that required for the annual meeting of shareholders; provided,
however, that the Corporation shall not be required to call such special
meeting if the annual meeting of shareholders shall be held within 90 days
after the date of receipt of the foregoing written request from the holders
of Serial Preferred Shares. At any meeting at which the holders of Serial
Preferred Shares shall be entitled to elect Directors, the holders of 45% of
the then outstanding Serial Preferred Shares of all series, present in
person or by proxy, shall be sufficient to constitute a quorum, and the
vote of the holders of a majority of such shares so present at any such
meeting at which there shall be such a quorum shall be sufficient to elect
the members of the Board of Directors which the holders of Serial Preferred
Shares are entitled to elect as hereinabove provided.
The two Directors who may be elected by the holders of Serial Preferred
Shares pursuant to the foregoing provisions shall be in addition to any other
Directors then in office or proposed to be elected otherwise than pursuant to
such provisions, and nothing in such provisions shall prevent any change
otherwise permitted in the total number of Directors of the Corporation or
require the resignation of any Director elected otherwise than pursuant to
such provisions.
(b) The affirmative vote of the holders of at least a majority of the Serial
Preferred Shares at the time outstanding, given in person or by proxy at a
meeting called for the purpose at which the holders of Serial Preferred Shares
shall vote separately as a class, shall be necessary to effect any one or more
of the following (but so far as the holders of Serial Preferred Shares are
concerned, such action may be effected with such vote):
(i) Any amendment, alteration or repeal of any of the provisions of the
Amended Articles of Incorporation or of the Code of Regulations of
the Corporation which affects adversely the voting powers, rights
or preferences of the holders of Serial Preferred Shares; provided,
however, that, for the purpose of this clause (i) only, neither the
amendment of the Amended Articles of Incorporation so as to
authorize or create, or to increase the authorized or outstanding
amount of, Serial Preferred Shares or of any shares of any class
ranking on a parity with or junior to the Serial Preferred Shares,
nor the amendment of the provisions of the Code of Regulations so
as to increase the number of Directors of the Corporation, shall
be deemed to affect adversely the voting powers, rights or
preferences of the holders of Serial Preferred Shares; and provided
<PAGE>
further, that if such amendment, alteration or repeal affects
adversely the rights or preferences of one or more but not all
series of Serial Preferred Shares at the time outstanding, only the
vote of the holders of at least a majority of the number of the
shares at the time outstanding of the series so affected shall
be required;
(ii) The authorization or creation of, or the increase in the
authorized amount of, any shares of any class, or any security
convertible into shares of any class, ranking prior to the Serial
Preferred Shares;
(iii) The purchase or redemption (for sinking fund purposes or
otherwise) of less than all of the Serial Preferred Shares then
outstanding except in accordance with a share purchase offer made to
all holders of record of Serial Preferred Shares, unless all
dividends upon all Serial Preferred Shares then outstanding for
all previous quarterly dividend periods shall have been declared
and paid or funds therefor set apart and all accrued sinking fund
obligations applicable thereto shall have been complied with;
(iv) The consolidation of the Corporation with or its merger into any
other corporation unless the corporation resulting from such
consolidation or merger will have after such consolidation or merger
no class of shares either authorized or outstanding ranking prior to
or on a parity with the Serial Preferred Shares except the same
number of shares ranking prior to or on a parity with the Serial
Preferred Shares and having the same rights and preferences as the
shares of the Corporation authorized and outstanding immediately
preceding such consolidation or merger, and each holder of Serial
Preferred Shares immediately preceding such consolidation or merger
shall receive the same number of shares, with the same rights and
preferences, of the resulting corporation; or
(v) The authorization of any shares ranking on a parity with the Serial
Preferred Shares or an increase in the authorized number of Serial
Preferred Shares.
Section 6. For the purpose of this Division B:
Whenever reference is made to shares "ranking prior to the Serial
Preferred Shares" or "on a parity with the Serial Preferred Shares", such
reference shall mean and include all shares of the Corporation in respect
of which the rights of the holders thereof as to the payment of dividends or
as to distributions in the event of a voluntary or involuntary liquidation,
<PAGE>
dissolution or winding up of the affairs of the corporation are given
preference over, or rank on an equality with (as the case may be) the
rights of the holders of Serial Preferred Shares; and whenever reference
is made to shares "ranking junior to the Serial Preferred Shares", such
reference shall mean and include all shares of the Corporation in respect
of which the rights of the holders thereof as to the payment of dividends
and as to distributions in the event of a voluntary or involuntary
liquidation, dissolution or winding up of the affairs of the Corporation are
junior and subordinate to the rights of the holders of Serial Preferred
Shares.
FIFTH: Section 1. Except as provided in Section 2 of this Article FIFTH,
notwithstanding any provision of the Ohio Revised Code now or hereafter
in force requiring for any purpose the vote, consent, waiver or release
of the holders of shares entitling them to exercise two-thirds, or any
other proportion of the voting power of the Corporation or classes of
shares thereof, such action, unless otherwise expressly required by
Statute or by these Amended Articles of Incorporation, may be taken by
the vote, consent, waiver or release of the holders of shares entitling
them to exercise a majority of the voting power of the corporation of
such class or classes.
Section 2. Any merger or consolidation of the Corporation with or into
any other corporation, any dissolution, or any sale, lease, exchange or
other disposition of all or substantially all of the assets of the
Corporation to or with any other corporation, person or entity, shall
require the affirmative vote of the holders of at least two-thirds of
each class or classes of the outstanding shares of capital stock of the
Corporation issued and outstanding and entitled to vote. The provisions
of this Section 2 of Article FIFTH shall not apply to any transaction
described in the preceding sentence which has been approved by resolution
unanimously adopted by the Board of Directors of the Corporation at a
meeting at which a quorum is present.
The Board of Directors of the Corporation shall have the power and duty
to determine for the purposes of this Article FIFTH, on the basis of
information then known to it, whether any sale, lease, exchange or other
disposition of part of the assets of the Corporation involves
substantially all the assets of the Corporation. Any such determination
by the Board shall be conclusive and binding for all purposes of this
Article FIFTH.
This Section 2 of Article FIFTH may not be amended or rescinded except
by the affirmative vote of the holders of at least two-thirds of each
class or classes of the outstanding shares of capital stock of the
Corporation issued and outstanding and entitled to vote, at any regular
<PAGE>
or special meeting of the shareholders if notice of the proposed
alteration or amendment be contained in the notice of the meeting.
SIXTH: Except as otherwise expressly provided herein, no Share-
holder of the Corporation shall by reason of his holding shares of any
class have any pre-emptive or preferential right to purchase or sub-
scribe to any shares of any class of the Corporation, now or hereafter
authorized, or any notes, debentures, bonds or other securities
convertible into or carrying options or warrants to purchase shares of
any class, now or hereafter authorized, whether or not the issuance of
any such shares, or such notes, debentures, bonds or other securities,
would affect adversely the dividend or voting rights of such shareholder,
and the Board of Directors may issue shares of any class of the
Corporation, or any notes, debentures, bonds, or other securities
convertible into or carrying options or warrants to purchase shares of
any class, without offering any such shares of any class, either in
whole or in part, to the existing shareholders of any class; provided,
however, that the Board of Directors may, in its discretion, grant such
preferential subscription rights at such price and upon such other
terms and conditions as it may determine.
SEVENTH: The Board of Directors is hereby authorized to fix and
determine and to vary the amount of working capital of the Corporation,
to determine whether any, and, if any, what part, of its surplus, however
created or arising, shall be used or disposed of or declared in dividends
or paid to shareholders, and, without action by shareholders, to use and
apply such surplus, or any part thereof, at any time or from time to
time,in the purchase or acquisition of shares of any class, voting trust
certificates and shares, bonds, debentures, notes, scrip, warrants,
obligations, evidences of indebtedness of the corporation or other
securities of the corporation to such extent or amount and in such manner
and upon such terms as the Board of Directors shall deem expedient.
EIGHTH: (a) A Director or officer shall not be disqualified from dealing
or contracting with the Corporation as vendor, purchaser, employee,
agent or otherwise; nor shall any transaction or contract or act of the
Corporation be void or voidable or in any way affected or invalidated by
the fact that any director or officer, or any firm of which any director
or officer is a member, or any corporation of which any director or
officer is a shareholder, director or officer is in any way interested
in such transaction or contract or act, provided the fact that such
director or officer, or such firm, or such corporation is so interested
shall be disclosed or shall be known to the Board of Directors or such
<PAGE>
members thereof as shall be present at any meeting of the Board of
Directors at which action upon any such contract or transaction or act
shall be taken; nor shall any such director or officer be accountable or
responsible to the Corporation for or in respect to any such transaction
or contract or act of the Corporation or for any gains or profits
realized by him by reason of the fact that he, or any firm of which he
is a member, or any corporation of which he is a shareholder, director
or officer is interested in such transaction or contract or act; and any
such director or officer may be counted in determining the existence
of a quorum at any meeting of the Board of Directors of the Corporation
which shall authorize or take action in respect to any such contract,
or transaction, or act, and may vote to authorize, ratify, or approve
any such contract or transaction or act, with like force and effect as
if he, or any firm of which he is a member, or any corporation of which
he is a shareholder, director or officer were not interested in such
transaction or contract or act.
(b) Every person who is or has been a director or officer of the
Corporation shall be indemnified by it against expenses and liabilities
reasonably incurred by him in connection with either (1) any action, suit
or proceeding to which he may be a party defendant, or (2) any claim of
liability asserted against him, by reason of his having been director or
officer of the Corporation. Without limitation, the term "expenses"
shall include any amount paid or agreed to be paid in satisfaction of a
judgment or in settlement of a judgment or claim of liability other
than any amount paid or agreed to be paid to the Corporation itself.
The Corporation shall not, however, indemnify any director or officer
in respect to matters as to which he shall be finally adjudged liable
for negligence or misconduct in the performance of his duties as such
director or officer, nor, in the case of a settlement, unless such
settlement shall be found to be in the interest of the Corporation (1)
by the court having jurisdiction of the action, suit or proceeding
against such director or officer or of a suit involving his right to
indemnification, or (2) by a majority of the directors of the
Corporation then in office other than those involved (whether or not
such majority constitutes a quorum), or, if there are not at least two
directors of the Corporation then in office other than those involved,
by a majority of a committee (selected by the Board of Directors) of
three or more shareholders of the Corporation who are not directors or
officers; provided that such indemnity in case of a settlement shall not
be allowed by such directors or committee of shareholders unless it is
found by independent legal counsel that such settlement is reasonable
in amount and in the interest of the Corporation. The foregoing right
<PAGE>
of indemnification shall not be exclusive of any other rights to which
any such director or officer may be entitled under any regulations,
agreement, or vote of shareholders, or to which any such director or
officer may be entitled as a matter of law; and the foregoing right of
indemnification shall inure to the benefit of the heirs, executors and
administrators of any such director or officer.
NINTH: These Amended Articles of Incorporation supersede and take the
place of the existing Articles of Incorporation, and all amendments
thereto and thereof.
EXHIBIT 4.2
CODE OF REGULATIONS
OF
SEAWAY FOOD TOWN, INC.
ARTICLE I
MEETINGS OF SHAREHOLDERS
Section 1. Annual Meeting. An annual meeting of the shareholders,
for the election of Directors to succeed those whose terms expire and for the
transaction of such other business as may properly come before the meeting,
shall be held at such place, on such date, and at such time as the Board of
Directors shall designate each year, which date shall be within thirteen (13)
months subsequent to the last annual meeting of shareholders.
Section 2. Special Meetings. Special meetings of shareholders may be
called to be held on any business day in accordance with applicable provisions
(if any) in the Amended Articles of Incorporation, and also in writing by the
holders of twenty-five percent of the outstanding shares entitled to vote
thereat, or by the Chairman of the Board of Directors, or by the President, or
a Vice President, or a majority of the directors in office, or by the Board of
Directors, or by the Executive Committee at a meeting thereof. Such meetings
shall be held at the principal office of the corporation in Toledo, Ohio,
unless the same is called by the Board of Directors or by the President, in
which case it may be held at any place designated by the Board or by the
President and specified in the notice of the meeting.
Section 3. Notice of Meetings. Not less than seven nor more than sixty
days before the date fixed for a meeting of shareholders, written notice
stating the time, place and purposes of such meeting shall be given by or at
the direction of the Chairman of the Board, the President or the Secretary,
or an Assistant Secretary, or any other person required or permitted by these
<PAGE>
Regulations to give such notice. The notice shall be given by personal
delivery or by mail to each shareholder entitled to notice of the meeting
who is of record as of the day next preceding the day on which notice is
given or, if a record date therefor is duly fixed, of record as of said date;
if mailed, such notice shall be addressed to the shareholder at his address
as it appears on the records of the corporation. Notice of the time, place
and purposes of any meeting of shareholders may be waived in writing, either
before or after the holding of such meeting, by any shareholder, which
writing shall be filed with or entered upon the records of the meeting.
Section 4. Quorum and Adjournments. Except as may otherwise be
required by law, this Code of Regulations or the Amended Articles of
Incorporation, at any meeting of shareholders or of any class of shareholders,
the holders of a majority of the shares entitled to vote, then issued and
outstanding, present in person or represented by proxy, shall constitute a
quorum; provided, however, that any meeting, including a meeting at which a
quorum is not present, may, by vote of the holders of a majority of the voting
shares represented thereat, adjourn from time to time and from place to place
in the State of Ohio without notice other than by announcement at such
meeting. At any such adjourned meeting at which a quorum is present, any
business may be transacted which might have been transacted at the meeting as
originally notified or held.
Section 5. Proxies. A person who is entitled to attend a shareholders
meeting, to vote thereat, or to execute consents, waivers or releases, may be
represented at such meeting or vote thereat, and execute consents, waivers,
and releases, and exercise any of his rights, by proxy or proxies appointed
by a writing signed by such persons, as provided by the laws of the State of
Ohio.
Section 6. Approval and Ratification of Acts of Officers and Board.
Except as otherwise provided by the Amended Articles of Incorporation or by
law, any contract, act, or transaction, prospective or past, of the
corporation, or of the Board, or of the officers may be approved or ratified
by the affirmative vote at a meeting of the shareholders, or by the written
consent, with or without a meeting, of the holders of shares entitling them
to exercise a majority of the voting power of the corporation, and such
approval or ratification shall be as valid and binding as though affirmatively
voted for or consented to by every shareholder of the corporation.
<PAGE>
ARTICLE II.
BOARD OF DIRECTORS
Section 1. General Powers. Except where the law, the Amended Articles
of Incorporation, or these Regulations require action to be authorized
or taken by shareholders, all of the authority of the corporation shall be
exercised by its Board of Directors.
Section 2. Number of Directors. Until changed in accordance with the
provisions of Article XI, the number of directors of the Corporation, none of
whom need be shareholders, shall not be less than seven (7) nor more than
twelve (12). Without amendment of these Regulations, the number of directors
may be fixed or changed within the limitations of the preceding sentence, at
any annual meeting or at any special meeting called for that purpose at which
a quorum is present, by the affirmative vote of the holders of a majority of
the shares which are represented at the meeting and entitled to vote on such
proposal, or as may be expressly provided in the Amended Articles of
Incorporation, but no reduction in the number of directors shall of itself
have the effect of shortening the term of any incumbent director.
Section 3. Election of Directors. Directors shall be elected at the
annual meeting of shareholders, but when the annual meeting is not held or
directors are not elected thereat, they may be elected at a special meeting
called and held for that purpose. Such election may be conducted in any
manner approved at such meeting subject to the right of any shareholder
entitled to vote at such election to require that such election shall be
by ballot.
At a meeting of shareholders at which directors are to be elected, only
persons nominated as candidates shall be eligible for election as directors,
and the candidates receiving the greatest number of votes shall be elected.
Section 4. Term of Office. The directors shall be divided into three
(3) classes, each of which shall consist of not less than two (2) directors
nor more than four (4) directors. The term of office of the first class
shall expire on the day of the annual election of the Corporation following
the close of the 1982 fiscal year; the term of office of the second class
shall expire on the day of the annual election of the Corporation following
the close of the 1983 fiscal year; the term of office of the third class
shall expire on the day of the annual election of the Corporation following
the close of the 1984 fiscal year. The number of directors in each class
shall be the whole number contained in the quotient arrived at by dividing
the authorized number of directors by three and if a fraction is also
contained in such quotient, then if such fraction is one-third (1/3) the
extra director shall be a member of Class III and if the fraction is
two-thirds (2/3) one of the extra directors shall be a member of Class III
<PAGE>
and the other extra director shall be a member of Class II. At each annual
election after such classification, the number of directors equal to the
number of the class whose term expires on the day of such election shall be
elected for a term of three (3) years. If the number of the directors of the
Corporation is increased pursuant to Section 2 of this Article II, directors
nominated to a class whose term does not expire on the day of such election
shall be elected for an initial term whose length shall be the number of years
remaining in the term of such class. Directors shall hold office until the
annual meeting at which their terms are to expire and until their successors
are elected and qualified, or until their earliest resignation, removal from
office or death. Removal of any director or group of directors prior to
death, resignation or expiration of the term shall require the affirmative
vote of the holders of record entitling them to exercise two-thirds of the
voting power of the Corporation. Any director may resign at any time by oral
statement to that effect made at a meeting of the Board, or in writing to that
effect immediately or at such other time as the director may specify.
Section 5. Vacancies. In the event of the occurrence of any vacancy
or vacancies in the Board, the remaining directors, though less than a
majority of the whole authorized number of directors, may, by the vote of a
majority of their number, fill such vacancy for the remainder of the
unexpired term of the position to which such director is appointed.
Section 6. Quorum. A majority of the qualified directors at any time in
office shall constitute a quorum for all purposes; provided, however, that at
any meeting duly called, whether a quorum is present or otherwise, a majority of
the directors present may adjourn from time to time and from place to place
within or without the State of Ohio without notice other than by announcement
at the meeting. At any such adjourned meeting at which a quorum is present
any business may be transacted which might have been transacted at the meeting
as originally called. At each meeting of the Board of Directors at which a
quorum is present all questions and business shall be determined by a vote of
the majority of the directors present unless a different vote is required by
law, by the Articles of Incorporation, or by this Code of Regulations.
Section 7. Meetings. Immediately after each annual meeting of the
shareholders, the newly elected and continuing directors shall hold an
organization meeting for the purpose of electing officers and transacting any
other business. Notice of such meeting need not be given. Regular meetings
of the Board of Directors shall be held at such times and places within or
without the State of Ohio as may be provided for in bylaws or resolutions
adopted by the Board. Special meetings may be held at any time and place
within or without the State of Ohio upon call by the Chairman of the Board,
<PAGE>
the President, or a majority of the directors in office. Notice of the time
and place of each special meeting shall be given by letter or telegram or in
person not less than 7 days prior to such time. Notice of any special meeting
may be waived in writing and will be waived by any director by his attendance
thereat. Unless otherwise indicated in the notice thereof, any business may
be transacted at any meeting held by the Board of Directors.
Section 8. Compensation. The directors, by the affirmative vote of a
majority of those in office, and irrespective of any personal interest of any
of them, may establish reasonable compensation, which may include pensions,
profit sharing plans, disability and death benefits, or other benefits, for
services to the corporation by directors and officers, or may delegate such
authority to one or more officers or directors.
ARTICLE III
EXECUTIVE AND OTHER COMMITTEES
Section 1. Executive Committee. The Board of Directors at any time by
the affirmative vote of not less than two-thirds of all directors in office
at the time may appoint from its members an Executive Committee which shall
consist of not less than three (3) members. Each member of such Committee
shall hold office during the pleasure of the Board of Directors and may be
removed by the Board at any time with or without cause. Vacancies occurring
in the Committee may be filled by the Board of Directors. The Committee
shall prescribe its own rules for calling and holding meetings and its method
of procedure, subject, however, to any rules prescribed by the Board of
Directors, and the Committee shall keep minutes of its meetings. A quorum for
any meeting of the Committee shall consist of not less than a majority of the
members; and at each meeting of the Committee at which a quorum is present,
all questions and business shall be determined by the affirmative vote of not
less than a majority of the members. Except as the Committee's powers and
duties may be limited or otherwise prescribed by the Board of Directors, the
Committee, during the intervals between the meetings of the Board, shall have
general control over the corporation's current and usual business; provided,
however, that the Committee shall not declare dividends on shares, nor
authorize the issuing of any shares or other securities, nor employ a
general manager, nor elect or remove any officers, nor fill vacancies in
the Board of Directors or in the Committee, nor, unless specifically so
authorized by the Board of Directors, adopt or modify any profit sharing
or pension plans, or fix the salaries of officers or authorize the payment
of bonuses or management funds to officers. Subject to said exceptions,
persons dealing with the corporation shall be entitled to rely upon any
action of the Committee with the same force and effect as though said action
had been taken by the Board of Directors. Subject to the rights of third
<PAGE>
persons, any action of the Committee shall be subject to revision or
alteration by the Board of Directors.
Section 2. Other Committees. The Board of Directors is authorized to
create such other committees as the Board shall deem essential to the
prosecution of the business of the corporation and to confer upon any such
committee such powers and authority as the Board Deems desirable, except such
as under Section 1 may not be exercised by or delegated to the Executive
Committee.
ARTICLE IV
OFFICERS
Section 1. Officers Designated. The Board of Directors, at its
organization meeting, may elect a Chairman of the Board, and shall elect a
President, one or more Vice Presidents, one of whom, if so designated, may be
an Executive Vice President, a Secretary, and a Treasurer, and, in its
discretion, one or more Assistant Secretaries and one or more Assistant
Treasurers and such other officers as it may determine. The Chairman of
the Board and the President shall be, and the other officers may be but need
not be, chosen from the members of the Board of Directors. Any two, but not
more than two, of such offices may be held by the same person but in any
case where the action of more than one officer is required, no person shall
act in more than one capacity.
Section 2. Term of Office. The officers of the corporation shall
hold office until the next organization meeting of the Board of Directors and
until their respective successors are chosen and qualified, except in case of
resignation, death or removal. The Board of Directors may remove any officer
at any time with or without cause by a majority vote of the members of the
Board at the time. A vacancy in any office may be filled by election by the
Board of Directors.
Section 3. Chairman of the Board. The Chairman of the Board, if any,
shall preside at all meetings of the shareholders and of the Board of
Directors and shall have such other powers and duties as from time to time
may be prescribed by the Board of Directors.
Section 4. President. In the absence or non-election of a Chairman of
the Board, the President shall preside at meetings of the shareholders and of
the Board of Directors. Subject to the directions of the Board of Directors,
the President shall be the chief executive officer of the corporation and
shall have general supervision over its property, business and affairs. He
may execute all authorized deeds, mortgages, bonds, contracts and other
obligations in the name of the corporation and shall have such other powers
and duties as may be prescribed by the Board of Directors.
<PAGE>
Section 5. Vice Presidents. The Vice Presidents, in the absence or
disability of the Presidents, in the order designated by the Board of
Directors, shall perform the President's duties, together with such other
duties as the Board of Directors from time to time may prescribe. The power
of the Vice Presidents to execute all authorized deeds, mortgages, bonds,
contracts and other obligations in the name and on behalf of the corporation
shall be coordinate with like powers of the President.
Section 6. Secretary. The Secretary shall keep the minutes of all
meetings of the shareholders and of the Board of Directors. He shall keep
such books as may be required by the Board of Directors, shall have charge
of the seal of the corporation, and shall give all notices of meetings of
shareholders and of the Board of Directors; provided, however, that any
persons calling such meeting may, at their option, themselves give such
notice. The secretary shall have such other powers and duties as the Board
of Directors may prescribe.
Section 7. Treasurer. The Treasurer shall receive and have in
charge all money, bills, notes, bonds, stocks and securities in other
corporations and similar property belonging to the corporation, and shall do
with the same as may be ordered by the Board of Directors. He shall keep
accurate financial accounts and hold the same open for the inspection or
examination of the Directors, and shall have such other powers and duties as
may be prescribed by the Board of Directors. On the expiration of his term
of office, he shall turn over to his successor or to the Board of Directors,
all property, books, papers and money of the corporation in his hands.
Section 8. Other Officers. The Assistant Secretaries and the
Assistant Treasurers and the other officers, if any, shall have such powers
and duties as may be prescribed by the Board of Directors.
Section 9. Delegation of Duties - General Manager. The Board of
Directors is authorized to delegate the duties of any officer to any other
officer, employee or committee, and generally to control the action of the
officers and to require the performance of duties in addition to those
mentioned herein. The Board of Directors, in its discretion, is authorized
to employ a General Manager, who may but need not be one of the above-
mentioned officers of the corporation, and the Board may delegate to him such
duties otherwise devolving upon officers of the corporation, as the Board may
see fit.
Section 10. Compensation. The Board of Directors is authorized to
determine, or to provide the method of determining, or to empower a committee
of its members to determine, the compensation of all officers. Such
compensation may be by way of fixed salary, or on the basis of earnings of
<PAGE>
the corporation, or any combination thereof, or otherwise, as may be
determined from time to time by the Board of Directors or by any committee
empowered by the Board.
Section 11. Bond. Any officer, if so required by the Board of
Directors, shall furnish a fidelity bond in such sum and with such security
as the Board of Directors may require.
Section 12. Signing Checks and Other Instruments. The Board of
Directors is authorized to determine, or provide the method of determining,
the manner in which checks, notes, bills of exchange, contracts and other
obligations and instruments of the corporation shall be signed, countersigned
or endorsed, as the case may be.
ARTICLE V
CERTIFICATES FOR SHARES
Section 1. Form of Certificates and Signatures. Each holder of
shares is entitled to one or more certificates, signed by the Chairman of the
Board or the President or a Vice President and by the Secretary, or an
Assistant Secretary, the Treasurer, or an Assistant Treasurer of the
corporation, which shall certify the number and class of shares held by him
in the corporation, but no certificate for shares shall be executed or
delivered until such shares are fully paid. When such a certificate is
countersigned by an incorporated transfer agent or registrar, the signature
of any of said officers of the corporation may be facsimile, engraved,
stamped, or printed. Although any officer of the corporation whose manual
or facsimile signature is affixed to such a certificate so countersigned
ceases to be such officer before the certificate is delivered, such
certificate, nevertheless, shall be effective in all respects when delivered.
Section 2. Transfer of Shares. Shares of the corporation shall be
transferable upon the books of the corporation by the holders thereof, in
person, or by a duly authorized attorney, upon surrender and cancellation of
certificates for a like number of shares of the same class or series, with
duly executed assignment and power of transfer endorsed thereon or attached
thereto, and with such proof of the authenticity of the signatures to such
assignment and power of transfer as the corporation or its agents may
reasonably require.
Section 3. Lost, Stolen or Destroyed Certificates. If any certifi-
cate for shares is lost, stolen or destroyed, the Chairman of the Board, the
President or any Vice President of the corporation may, upon being satisfied
of that fact, authorize the issuance of a new certificate in place thereof
upon the corporation being furnished with an affidavit in such form as such
<PAGE>
officer may require to the effect that the shares represented by said
certificate belonged to the shareholder requesting a new certificate, and
upon the corporation being furnished with a good and sufficient open penalty
bond upon such terms and secured by such surety as such officer in his
discretion may require. Such officers in their discretion may refuse to
issue a new certificate until the corporation has been indemnified to its
satisfaction and has been protected to its satisfaction by a final order or
decree of a court of competent jurisdiction.
Section 4. Transfer Agents and Registrars. The Board of Directors
may appoint, or revoke the appointment of, transfer agents and registrars and
may require all certificates for shares to bear the signatures of such
transfer agents and registrars, or any of the them. The Board of Directors
shall have authority to make all such rules and regulations as it may deem
expedient concerning the issue, transfer, and registration of certificates
for shares of the corporation.
ARTICLE VI
RECORD DATES
For any lawful purpose, including, without limitation, the determination
of the shareholders who are entitled to:
(1) receive notice of or to vote at a meeting of shareholders,
(2) receive payment of any dividend or distribution,
(3) receive or exercise rights of purchase of or subscription
for, or exchange or conversion of, shares or other
securities, subject to contract rights with respect thereto, or
(4) participate in the execution of written consents, waivers,
or releases,
the Board of Directors may fix a record date which shall not be a date earlier
than the date on which the record date is fixed and, in the cases provided for
in clauses (1), (2), and (3) above, shall not be more than sixty days
preceding the date of the meeting of shareholders, or the date fixed for the
payment of any dividend or distribution, or the date fixed for the receipt or
the exercise of rights, as the case may be. The record date for the purpose
of the determination of the shareholders who are entitled to receive notice
of or to vote at a meeting of shareholders shall continue to be the record
date for all adjournments of such meeting, unless the Board of Directors or
the persons who shall have fixed the original record date shall, subject to
the limitations set forth in this Article, fix another date, and in case a
<PAGE>
new record date is so fixed, notice thereof and of the date to which the
meeting shall have been adjourned shall be given to shareholders of record
as of such date in accordance with the same requirements as those applying
to a meeting newly called. The Board of Directors may close the share
transfer books against transfers of shares during the whole or any part of
the period provided for in this Article, including the date of the meeting
of shareholders and the period ending with the date, if any, to which
adjourned.
ARTICLE VII
SEAL
The Board of Directors shall provide a suitable seal containing the name
of the corporation. If deemed advisable by the Board of Directors, duplicate
seals may be provided and kept for the purposes of the corporation.
ARTICLE VIII
FISCAL YEAR
The Board of Directors shall have the authority to establish the fiscal
year of the corporation and to change the same from time to time as may be
necessary.
ARTICLE IX
CANCELLATION OF FORMER CODES OF REGULATIONS
This amended Code of Regulations supersedes all Codes of Regulation and
bylaws heretofore adopted.
ARTICLE X
AUTHORITY TO TRANSFER AND VOTE SECURITIES
The Chairman of the Board, the President, and a Vice President of the
corporation are each authorized to sign the name of the corporation and to
perform all acts necessary to effect a transfer of any shares, bonds, other
evidences of indebtedness or obligations, subscription rights, warrants, and
other securities of another corporation owned by this corporation and to
issue the necessary powers of attorney for the same; and each such officer is
authorized, on behalf of this corporation, to vote such securities, to appoint
proxies with respect thereto, and to execute consents, waivers, and releases
with respect thereto, or to cause any such action to be taken.
<PAGE>
ARTICLE XI
AMENDMENTS
Except for Amendments to Sections 2, 4, 5, 6, and 7 of Article II and
except for amendments to this Article XI of this Code of Regulations which
shall require the affirmative vote of the holders of record of shares
entitling them to exercise two-thirds of the voting power of the Corporation
on such proposal, this Code of Regulations may be altered, changed or amended
in any respect or superceded by a new Code of Regulations in whole or in part
by the affirmative vote of the holders of record of shares entitling them to
exercise a majority of the voting power of the Corporation on such proposal,
at any annual or special meeting called for such purpose, or without a
meeting by the written consent of the holders of record of shares entitling
them to exercise two-thirds of the voting power of the Corporation. In case
of adoption of any regulation or amendment by such written consent, the
Secretary shall enter the same in his records and mail a copy thereof to each
shareholder who did not participate in the adoption thereof.
<PAGE>
EXHIBIT 5
[Spengler Nathanson P.L.L. Letterhead]
(419) 252-6214
November 26, 1998
Seaway Food Town, Inc.
1020 Ford Street
Maumee, OH 43537
Ladies and Gentlemen:
This opinion is rendered for you in connection with the Registration
Statement on Form S-8 prescribed pursuant to the Securities Act of 1933, to be
filed by Seaway Food Town, Inc. (the "Company") with the Securities and
Exchange Commission, under which up to 400,000 additional shares of the
Company's common stock without par value ("Common Stock") are to be registered
for issuance pursuant to the Seaway Food Town, Inc. Second Amended and
Restated Employee Retirement Savings Plan (the "Plan").
As counsel to the Company, we have examined and are familiar with
originals or copies, certified or otherwise identified to our satisfaction,
of such statutes, documents, corporate records, certificates of public
officials, and other instruments as we have deemed necessary for the purpose
of this opinion, including the Company's Articles of Incorporation and Code
of Regulations and the record of proceedings of the directors of the Company.
Based upon the foregoing, we are of the opinion that:
1. The Company has been duly incorporated and is validly existing in
good standing as a corporation under the laws of the State of Ohio.
2. When the Registration Statement shall have been declared effective by
order of the Securities Exchange Commission, the Common Stock will be legally
and validly issued and outstanding, fully paid and non-assessable.
Very truly yours,
SPENGLER NATHANSON P.L.L.
/s/ Gary D. Sikkema
Gary D. Sikkema
<PAGE>
EXHIBIT 23.1
[Ernst & Young LLP Letterhead]
CONSENT OF INDEPENDENT AUDITORS
Seaway Food Town, Inc.
1020 Ford Street
Maumee, OH 43537
We consent to the incorporation by reference in the Registration Statement
(Form S-8) pertaining to the Seaway Food Town, Inc. Second Amended and
Restated Employee Retirement Savings Plan of Seaway Food Town, Inc. of our
report dated October 16, 1998, with respect to the consolidated financial
statements and schedules of Seaway Food Town, Inc. included in its Annual
Report (Form 10-K) for the year ended August 29, 1998, filed with the
Securities and Exchange Commission.
/s/ Ernst & Young L.L.P.
ERNST & YOUNG L.L.P.
Toledo, Ohio
December 2, 1998
<PAGE>
EXHIBIT 23.2
[Spengler Nathanson P.L.L. Letterhead]
Seaway Food Town, Inc.
1020 Ford Street
Maumee, OH 43537
Ladies and Gentlemen:
We consent to the incorporation in this Registration Statement of Seaway
Food Town, Inc. on Form S-8 of our opinion dated December 2, 1998 regarding
the legality of the securities being offered thereby by Seaway Food Town, Inc.
Very truly yours,
SPENGLER NATHANSON P.L.L.
/s/ Gary D. Sikkema
Gary D. Sikkema
