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Registration Statement No. 333-_____________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
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HARRY'S FARMERS MARKET, INC.
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(Exact name of registrant as specified in its charter)
Georgia 58-2037452
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
1180 Upper Hembree Road
Roswell, Georgia 30076
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(Address of Principal executive offices)
1996 EMPLOYEE STOCK PURCHASE PLAN
1996 DIRECTOR STOCK OPTION PLAN
1993 MANAGEMENT INCENTIVE PLAN
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(Full Title of the Plan)
Harry A. Blazer, President
1180 Upper Hembree Road
Roswell, Georgia 30076
(770) 667-8878
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(Name, address, and telephone number, including
area code, of agent for service)
______________________________
Copies Requested to:
John L. Latham, Esq.
Nelson Mullins Riley & Scarborough, L.L.P.
1201 Peachtree Street, N.E.
400 Colony Square, Suite 2200
Atlanta, Georgia 30361
______________________________
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
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<S> <C> <C> <C> <C>
Title of Proposed Proposed
Securities Amount Maximum Maximum Amount of
to be to be Offering Aggregate Registration
Registered Registered Price Per Share (1) Offering Price (1) Fee
- --------------------- ---------- ------------------ ----------------- ------------
Options and 700,000 $4.75 $3,325,000 $1,146.62
underlying shares of Shares
Common Stock
==========================================================================================
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) based upon the average of the high and low prices of the
Class A Common Stock on the Nasdaq National Market System on August 13, 1996.
- -------------------------------------------------------------------------------
THE CONTENTS OF THE REGISTRATION STATEMENT IN FORM
S-8 (NO. 33-81120) ARE INCORPORATED BY REFERENCE
HEREIN PURSUANT TO GENERAL INSTRUCTION E TO FORM S-8.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
- ------ ---------------------------------------
The documents listed below are hereby incorporated by reference into this
Registration Statement, and 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 a part hereof from the date of filing such
documents:
(a) the Company's Annual Report on Form 10-K for the fiscal year ended
January 31, 1996, as filed with the Securities and Exchange Commission; and
(b) the Company's Registration Statement on Form S-1 filed with the
Securities and Exchange Commission on April 2, 1993, to register the Class A
Common Stock, without par value, under Section 12(g) of the Securities and
Exchange Act of 1934, as amended, which Registration Statement contains a
description of the Class A Common Stock.
Item 4. Description of Securities.
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No response is required to this item.
Item 5. Interests of Named Experts and Counsel.
- ------ --------------------------------------
No response is required to this item.
Item 6. Indemnification of Directors and Officers.
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As provided under Georgia law, the Company's Articles of Incorporation
provide that a director shall not be personally liable to the Company or its
stockholders for monetary damages for breach of duty of care or any other duty
owed to the Company as a director, except that such provision shall not
eliminate or limit the liability of a director (a) for any appropriation, in
violation of his duties, of any business opportunity of the Company, (b) for
acts or omissions which involve intentional misconduct or a knowing violation of
law, (c) for unlawful corporate distributions, or (d) for any transaction from
which the director received an improper personal benefit.
Article VI of the Company's By-Laws provides that the Company shall
indemnify a director who has been successful in the defense of any proceeding to
which he was a party or in defense of any claim, issue or matter therein because
he is or was a director of the Company, against reasonable expenses incurred by
him in connection with such defense.
The Company's By-Laws also provide that the Company is required to indemnify
any director, officer, employee or agent made a party to a proceeding because he
is or was a director, employee
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or agent against liability incurred in the proceeding if he acted in a manner he
believed in good faith or to be in or not opposed to the best interests of the
Company and, in the case of any criminal proceeding, he had no reasonable cause
to believe his conduct was unlawful. Determination concerning whether or not
the applicable standard of conduct has been met can be made by (a) a
disinterested majority of the Board of Directors, (b) a majority of a committee
of disinterested directors, (c) independent legal counsel, or (d) an affirmative
vote of a majority of shares held by disinterested stockholders. No
indemnification may be made to or on behalf of a director, officer, employee or
agent (i) in connection with a proceeding by or in the right of the Company in
which such person was adjudged liable to the Company or (ii) in connection with
any other proceeding in which such person was adjudged liable on the basis that
personal benefit was improperly received by him.
The Company may, if authorized by its stockholders by a majority of votes
which would be entitled to be cast in a vote to amend the Company's Articles of
Incorporation, indemnify or obligate itself to indemnify a director, officer,
employee or agent made a party to a proceeding, including a proceeding brought
by or in the right of the Company.
Item 7. Exemption from Registration Claimed.
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No response is required to this item.
Item 8. Exhibits.
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The following exhibits are filed with this Registration Statement.
Exhibit
Number Description of Exhibit
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4.1 - Amendment No. 1 to Registrant's 1993 Management Incentive Plan.
4.2 - 1996 Employee Stock Purchase Plan (Incorporated by reference to
the Company's Proxy Statement filed on Schedule 14A dated
May 20, 1996)
4.3 - 1996 Director Stock Option Plan (Incorporated by reference to the
Company's Proxy Statement filed on Schedule 14A dated
May 20, 1996)
5.1 - Opinion of Nelson Mullins Riley & Scarborough, L.L.P.
23.1 - Consent of Grant Thornton, L.L.P.
23.2 - Consent of Nelson Mullins Riley & Scarborough, L.L.P. (contained
in their opinion filed as Exhibit 5.1).
24 - Power of Attorney (Included on page II-4)
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Item 9. Undertakings.
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(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:
(i) To include any prospectus required by Section 10(a)(3) of the
Act;
(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 aggregate, represent a fundamental change in the information
set forth in this registration statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in this registration
statement or any material change to such information in this
registration statement;
provided, however, that the undertakings set forth in paragraph (i) and (ii)
- -------- -------
above 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(a) 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 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 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) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification
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by it is against public policy as expressed in the Act and will be governed by
the final adjudication of such issue.
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 Atlanta, State of Georgia, on this 14th day of August,
1996.
HARRY'S FARMERS MARKET, INC.
By: /s/ Harry A. Blazer
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Harry A. Blazer
President and Chief Executive Officer
POWER OF ATTORNEY
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KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears below
constitutes and appoints Harry A. Blazer or Terry Ransom as his true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for him and in his name, place and stead, in any and all capacities, to sign any
and all amendments (including post-effective amendments) to this Registration
Statement, and to file the same with all exhibits thereto, and other documents
in connection therewith, with the Securities and Exchange Commission, granting
unto said attorney-in-fact and agent, full power and authority to do and perform
each and every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorney-in-fact and
agent, or his substitute or substitutes, may lawfully 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 and on
August 14, 1996.
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SIGNATURES
Signature Title
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/s/ Harry A. Blazer President, Chief Executive
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Harry A. Blazer Officer and Director (principal
executive officer)
/s/ Terry L. Ransom Chief Administrative Officer
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Terry L. Ransom Director
/s/ John D. Branch Director
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John D. Branch
/s/ Robert C. Glustrom Director
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Robert C. Glustrom
6
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FIRST AMENDMENT TO HARRY'S FARMERS MARKET, INC.
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1993 MANAGEMENT INCENTIVE PLAN
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WHEREAS, the Board of Directors of Harry's Farmers Market, Inc. (the
"Company") approved an Amendment to the Company's 1993 Management Incentive Plan
(the "Plan") increasing the number of shares of the Company's common stock
available to be optioned and sold pursuant to the Plan;
NOW, THEREFORE, the Plan is hereby amended as follows:
1. Defined Terms. Initially capitalized terms used in this Amendment
-------------
which are not otherwise defined by this Amendment are used with the same meaning
ascribed to such terms in the Plan.
2. Amendment. The first sentence of Section 3 of the Plan is amended and
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restated to read in full as follows:
The total number of shares of Stock reserved and available for
distribution under the Plan shall be 475,000.
3. Effectiveness. This Amendment shall not become effective unless and
-------------
until such provisions are approved by at least a majority vote of the holders of
the outstanding capital stock of the Company present, or represented, and
entitled to vote on such matter at a meeting of shareholders duly called and
convened within one (1) year following the date hereof.
4. Ratification. Except as hereinabove amended and modified, the Plan is
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approved, ratified and affirmed without further modification or amendment.
IN WITNESS WHEREOF, the Company has caused this First Amendment to be
executed as of June 15, 1995, in accordance with Section 12 of the Plan and the
authority provided by the Board of Directors.
HARRY'S FARMERS MARKET, INC.
By:/s/ Harry A. Blazer
----------------------------------
Name: Harry A. Blazer
Title: President
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LAW OFFICES
NELSON MULLINS RILEY & SCARBOROUGH, L.L.P.
A REGISTERED LIMITED LIABILITY PARTNERSHIP INCLUDING PROFESSIONAL CORPORATIONS
400 COLONY SQUARE
SUITE 2200
1201 PEACHTREE STREET, N.E.
ATLANTA, GEORGIA 30361
TELEPHONE (404) 817-6000
TELECOPIER (404) 817-6050
OTHER OFFICES:
Charleston, South Carolina
Charlotte, North Carolina
Columbia, South Carolina
Greenville, South Carolina
Lexington, South Carolina
Myrtle Beach, South Carolina
August 14, 1996
Harry's Farmers Market, Inc.
1180 Upper Hembree Road
Roswell, Georgia 30076
Gentlemen:
We have acted as counsel to Harry's Farmers Market, Inc. (the
"Company") in connection with the filing of a Registration Statement on Form S-8
(Reg. No. 333-______) (the "Registration Statement") under the Securities Act of
1933, covering the offering of up to 700,000 shares (the "Shares") of the
Company's Class A Common Stock, no par value per share. In connection
therewith, we have examined such corporate records, certificates of public
officials and other documents and records as we have considered necessary or
proper for the purpose of this opinion.
This opinion is limited by and is in accordance with, the January 1,
1992, edition of the Interpretive Standards applicable to Legal Opinions to
Third Parties in Corporate Transactions adopted by the Legal Opinion Committee
of the Corporate and Banking Law Section of the State Bar of Georgia.
Based on the foregoing, and having regard to legal considerations
which we deem relevant, we are of the opinion that the Shares, when issued and
delivered as described in the Registration Statement, will be legally issued,
fully paid and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
NELSON MULLINS RILEY & SCARBOROUGH, L.L.P.
/s/ John L. Latham
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John L. Latham, Esq., A Partner
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CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We have issued our report dated March 29, 1996 accompanying the consolidated
financial statements and schedule of Harry's Farmers Market, Inc. and
Subsidiaries appearing in the Annual Report on Form 10-K for the year ended
January 31, 1996, which are incorporated by reference in the Form S-8
Registration Statement (1996 Employee Stock Purchase Plan, 1996 Director Stock
Option Plan, 1993 Management Incentive Plan). We consent to the incorporation by
reference in the Registration Statement of the aforementioned report and to the
use of our name as it appears under the caption "Independent Auditors."
/s/ Grant Thornton LLP
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GRANT THORNTON LLP
Atlanta, Georgia
August 14, 1996
