As filed with the Securities and Exchange Commission on June 17, 1999.
Registration No. 333-_______
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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AMERICAN STORES COMPANY
(Exact name of registrant as specified in its charter)
Delaware 87-0207226
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
299 South Main Street
Salt Lake City, Utah 84111
(Address of Principal Executive Offices) (Zip Code)
AMERICAN STORES COMPANY
1997A STOCK OPTION AND STOCK AWARD PLAN
(Full title of the Plan)
---------------------------------
KATHLEEN E. MCDERMOTT, ESQ.
CHIEF LEGAL OFFICER AND ASSISTANT SECRETARY
AMERICAN STORES COMPANY
299 SOUTH MAIN STREET
SALT LAKE CITY, UTAH 84111
(801) 539-0112
(Name, address and telephone number of agent for service)
Copy to:
Eric S. Robinson, Esq.
Wachtell, Lipton, Rosen & Katz
51 West 52nd Street
New York, New York 10019
(212) 403-1000
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
- --------------------------------- ------------------- ----------------------- ----------------------- -------------------
Propose maximum Proposed maximum
Title of securities Amount to be Offering Price Aggregate Amount of
To be Registered Registered(1) Per Share(2) Offering Price(2) Registration Fee
- --------------------------------- ------------------- ----------------------- ----------------------- -------------------
================================= =================== ======================= ======================= ===================
<S> <C> <C> <C> <C>
Common Stock,
Par Value $1.00 Per Share 2,674,000 Shares $33.78125 $90,331,062.50 $25,112.04
================================= =================== ======================= ======================= ===================
</TABLE>
1. Plus such indeterminate number of shares as may be issued to prevent
dilution resulting from stock splits, stock dividends or similar
transactions in accordance with Rule 416 under the Securities Act of
1933.
2. Pursuant to Rule 457(h) and Rule 457(c) under the Securities Act of
1933, the proposed maximum offering price per share and the
registration fee are based on the reported average of the high and low
prices for the Registrant's Common Stock on the New York Stock Exchange
on June 10, 1999.
<PAGE>
PART I - INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS1
ITEM 1. PLAN INFORMATION.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents which have heretofore been filed by
American Stores Company (the "Company") with the Securities and Exchange
Commission (the "Commission") pursuant to the Securities Exchange Act of 1934,
as amended (the "1934 Act"), are incorporated by reference herein and shall be
deemed to be a part hereof:
1. The Company's Annual Report on Form 10-K for the fiscal
year ended January 30, 1999.
2. The Company's Quarterly Report on Form 10-Q for the
quarterly period ended May 1, 1999.
3. The description of the Company's Common Stock contained on
pages 25-27 of Amendment No. 2 to the Company's Registration Statement
on Form S-3 (Registration No. 333-22701), dated April 1, 1997 (the
"Form S-3").
All documents subsequently filed by the Company pursuant to
Section 13(a), 13(c), 14 and 15(d) of the 1934 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 of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Kathleen E. McDermott, Chief Legal Officer for the Company,
who has rendered an opinion on the legality of the securities being registered,
is paid a salary by the Company, is a participant in various employee benefit
plans offered to employees of the Company (including the plan under which the
securities being registered are to be issued) and owns Common Stock of the
Company.
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1 This information is not required to be included in, and is not incorporated
by reference in, this Registration Statement.
<PAGE>
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Delaware General Corporation Law Section 145 contains
provisions permitting and, in some situations, requiring Delaware corporations,
such as the Company, to provide indemnification to their officers and directors
for losses and litigation expenses incurred in connection with their service to
the corporation in those capacities. The Company also maintains a directors' and
officers' liability insurance policy.
Article Ninth of the Restated Certificate of Incorporation, as
amended, of the Company provides the following:
9.01 Elimination of Certain Liability of Directors. A Director
of the Corporation shall not be personally liable to the Corporation or its
stockholders for monetary damages for breach of fiduciary duty as a Director,
except for liability (i) for any breach of the Director's duty of loyalty to the
Corporation or its stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii) under
Section 174 of the Delaware General Corporation Law, or (iv) for any transaction
from which the Director derived an improper personal benefit. If the Delaware
General Corporation Law is amended after approval by the stockholders of this
Article to authorize corporate action further eliminating or limiting the
personal liability of directors, then the liability of a director of the
corporation shall be eliminated or limited to the fullest extent permitted by
the Delaware General Corporation law, as so amended.
Any repeal or modification of the foregoing paragraph by the
stockholders of the Corporation shall not adversely affect any right or
protection of a Director of the Corporation existing at the time of such repeal
or modification.
9.02 Indemnification and Insurance.
(a) Right to Indemnification. Each person who was or is made
party or is threatened to be made a party to or is involved in any action, suit
or proceeding, whether civil, criminal, administrative or investigative
(hereinafter a "proceeding"), by reason of the fact that he or she, or a person
of whom he or she is the legal representative, is or was a Director or officer
of the Corporation or while serving as a Director or officer of the Corporation
is or was also serving at the request of the Corporation as a director, officer,
employee or agent of another Corporation or of a partnership, joint venture,
trust or other enterprise, including service with respect to employee benefit
plans, shall be indemnified and held harmless by the Corporation to the fullest
extent authorized by the Delaware General Corporation law, as the same exists or
may hereafter be amended (but, in the case of any such amendment, only to the
extent that such amendment permits the Corporation to provide broader
indemnification rights than said law permitted the Corporation to provide prior
to such amendment), against all expense, liability and loss (including
attorneys' fees, judgments, fines, ERISA excise taxes or penalties and amounts
paid or to be paid in settlement) reasonably incurred or suffered by such person
in connection therewith and such indemnification shall continue as to a person
who has ceased to be a Director or officer, and shall inure to the benefit of
his or her heirs, executors and administrators; provided, however, that, except
as provided in paragraph (b) hereof, the Corporation shall
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<PAGE>
indemnify any such person seeking indemnification in connection with a
proceeding (or part thereof) initiated by such person only if such proceeding
(or part thereof) was authorized by the Board of Directors of the Corporation.
The right to indemnification conferred in this Section shall be a contract right
(which may not be reduced or limited by any repeal or modification of this
Section 9.02) and shall include the right to be paid by the Corporation the
expenses incurred in defending any such proceeding in advance of its final
disposition; provided, however, that, if the Delaware General Corporation Law
requires, the payment of such expenses incurred by a Director or officer in his
or her capacity as a Director or officer (and not in any other capacity in which
service was or is rendered by such person while a Director or officer,
including, without limitation, service to an employee benefit plan) in advance
of the final disposition of a proceeding, shall be made only upon delivery to
the company of an undertaking, by or on behalf of such Director of officer, to
repay all amounts so advanced if it shall ultimately be determined that such
Director or officer is not entitled to be indemnified under this section or
otherwise. The Corporation may, by action of its Board of Directors, provide
indemnification to employees and agents of the Corporation with the same scope
and effect as the foregoing indemnification of Directors and officers.
(b) Right of Claimant to Bring Suit. If a claim under
paragraph (a) of this Section is not paid in full by the Corporation within
thirty days after a written claim has been received by the Corporation, the
claimant may at any time thereafter bring suit against the Corporation to
recover the unpaid amount of the claim and, if successful in whole or in part,
the claimant shall be entitled to be paid also the expense of prosecuting such
claim. It shall be a defense to any such action (other than an action brought to
enforce a claim for expenses incurred in defending any proceeding in advance of
its final disposition where the required undertaking, if any is required, has
been tendered to the Corporation) that the claimant has not met the standards of
conduct which make it permissible under the Delaware General Corporation Law for
the Corporation to indemnify the claimant for the amount claimed, but the burden
of proving such defense shall be on the Corporation. Neither the failure of the
Corporation (including its Board of Directors, independent legal counsel, or its
stockholders) to have made a determination prior to the commencement of such
action that indemnification of the claimant is proper in the circumstances
because he or she has met the applicable standard of conduct set forth in the
Delaware General Corporation Law nor an actual determination by the Corporation
(including its Board of Directors, independent legal counsel, or its
stockholders) that the claimant has not met such applicable standard of conduct,
shall be a defense to the action or create a presumption that the claimant has
not met the applicable standard of conduct.
(c) Non-Exclusivity of Rights. The right to indemnification
and the payment of expenses incurred in defending a proceeding in advance of its
final disposition conferred in this Section shall not be exclusive of any other
right which any person may have or hereafter acquire under any statute,
provision of the Certificate of Incorporation, by-law, agreement, vote of
stockholders or disinterested Directors or otherwise.
(d) Insurance. The Corporation may maintain insurance, at its
expense, to protect itself and any director, officer, employee or agent of the
Corporation or another corporation, partnership, joint venture, trust or other
enterprise against any such expense, liability
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<PAGE>
or loss whether or not the Corporation would have the power to indemnify such
person against such expense, liability to or loss under the Delaware General
Corporation Law.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
Exhibit Number Description of Exhibits
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4.1 American Stores Company 1997A Stock Option and
Stock Award Plan
4.2 The restated Certificate of Incorporation of
American Stores Company, as amended, is
incorporated herein by reference to Exhibit
3.1 of the Company's Form 10-K for the fiscal
year ended February 3, 1996 as filed on April
14, 1996, and to Exhibit 1 of the Company's
Form 8-K as filed on July 10, 1997
4.3 The By-Laws of American Stores Company as
amended on September 17, 1997 are incorporated
herein by reference to Exhibit 3.2 of the
Company's Form 10-K for the fiscal year ended
January 31, 1998 as filed on April 20, 1998
5.1 Opinion of Counsel
23.1 Consent of Ernst & Young LLP, Independent
Auditors
23.2 Consent of Counsel (Contained in Exhibit 5.1)
24.1 Power of Attorney (Included on signature page)
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:
(i) To include any prospectus required by section
10(a)(3) of the Securities Act of 1933 (the "1933
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 the
aggregate, represent a fundamental change in the
information set forth in the registration
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<PAGE>
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 224(b) if, in the aggregate, the changes in
volume and price represent no more than 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.
(2) That, for the purpose of determining any liability under the
1933 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 posteffective
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 1933 Act, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d)
of the 1934 Act (and, where applicable, each filing of any employee
benefit plan's annual report pursuant to Section 15(d) of the 1934 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 1933 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 1933 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 or appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the 1933
Act and will be governed by the final adjudication of such issue.
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<PAGE>
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 Salt Lake City, State of Utah, on June 17, 1999.
AMERICAN STORES COMPANY
By: /s/ Teresa Beck
--------------------------------
Name: Teresa Beck
Title: President
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
That the undersigned officers and directors of American Stores
Company, a Delaware corporation, do hereby constitute and appoint Victor L. Lund
and Teresa Beck, and each one of them, the lawful attorneys and agents, with
full power and authority to do any and all acts and things and to execute any
and all instruments which said attorneys and agents, and any one of them,
determine may be necessary or advisable or required to enable said corporation
to comply with the Securities Act of 1933, and any rules or regulations or
requirements of the Commission in connection with this Registration Statement.
Without limiting the generality of the foregoing power and authority, the powers
granted include the power and authority to sign the names of the undersigned
officers and directors in the capacities indicated below to this Registration
Statement, to any and all amendments, both pre-effective and post-effective, and
supplements to this Registration Statement, and to any and all instruments or
documents filed as part of or in conjunction with this Registration Statement or
amendments or supplements thereof, and each of the undersigned hereby ratifies
and confirms all that said attorneys and agents, or any of them, shall do or
cause to be done by virtue hereof. This Power of Attorney may be signed in
several counterparts.
IN WITNESS WHEREOF, each of the undersigned has executed this
Power of Attorney as of the date indicated.
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 the date indicated.
Signatures Title Date
---------- ----- ----
/s/ Victor L. Lund Chairman of the Board, Chief June 17, 1999
Victor L. Lund Executive Officer and Director
(Principal Executive Officer)
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<PAGE>
Signatures Title Date
---------- ----- ----
/s/ Neal J. Rider Chief Financial Officer (Principal June 17, 1999
Neal J. Rider Financial and Accounting Officer)
/s/ Pamela G. Bailey Director June 17, 1999
Pamela G. Bailey
/s/ Henry I. Bryant Director June 17, 1999
Henry I. Bryant
/s/ Ardern B. Engebretsen Director June 17, 1999
Arden B. Engebretsen
/s/ James B. Fisher Director June 17, 1999
James B. Fisher
/s/ Fernando R. Gumucio Director June 17, 1999
Fernando R. Gumucio
/s/ Leon G. Harmon Director June 17, 1999
Leon G. Harmon
/s/ David L Maher Director June 17, 1999
David L. Maher
/s/ John E. Masline Director June 17, 1999
John E. Masline
/s/ Barbara S. Preiskel Director June 17, 1999
Barbara S. Preiskel
/s/ J. L. Scott Director June 17, 1999
J. L. Scott
/s/ Arthur K. Smith Director June 17, 1999
Arthur K. Smith
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<PAGE>
EXHIBIT INDEX
EXHIBIT DOCUMENT DESCRIPTION
NUMBER
4.1 American Stores Company 1997A Stock Option and Stock Award Plan
4.2 The restated Certificate of Incorporation of American Stores
Company, as amended, is incorporated herein by reference to
Exhibit 3.1 of the Company's Form 10-K for the fiscal year
ended February 3, 1996 as filed on April 14, 1996, and to
Exhibit 1 of the Company's Form 8-K as filed on July 10, 1997
4.3 The By-Laws of American Stores Company as amended on September
17, 1997 are incorporated herein by reference to Exhibit 3.2 of
the Company's Form 10-K for the fiscal year ended January 31,
1998 as filed on April 20, 1998
5.1 Opinion of Counsel
23.1 Consent of Ernst & Young LLP, Independent Auditors
23.2 Consent of Counsel (Contained in Exhibit 5.1)
24.1 Power of Attorney (Included on signature page)
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Exhibit 4.1
AMERICAN STORES COMPANY
1997A STOCK OPTION AND STOCK AWARD PLAN
1. Adoption and Purpose of Plan. American Stores Company, a Delaware
corporation (the "Company"), hereby adopts a stock option plan providing for the
granting of stock options and stock appreciation rights to key management
employees (the "Plan"). The general purpose of the Plan is to promote the
interests of the Company and its shareholders in attracting, maintaining and
developing a management capable of assuring the future success of the Company
and by providing to key employees of the Company and its subsidiaries and
affiliates additional incentives to continue to increase their efforts with
respect to, and to remain in the employ of, the Company or its subsidiaries or
affiliates.
2. Terms and Conditions of the Plan. Unless and to the extent
specifically provided to the contrary herein, the terms and conditions of the
Plan, including but not limited to those pertaining to administration, time of
granting options, eligibility, option prices, terms of options, adjustments upon
changes in capitalization, option agreements, securities laws, government and
other regulations, non-exclusivity, no affect on employment, transfer of
employment, termination and amendment, and change in control, shall be identical
to the terms and conditions of the American Stores Company 1989 Stock Option and
Stock Award Plan, as amended (the "1989 Plan"), which is incorporated herein by
reference. To the extent the 1989 Plan is amended subsequent to the adoption of
the Plan, the Plan shall be deemed to have also been amended so that the terms
and conditions of the Plan remain identical to the terms and conditions of the
1989 Plan except and as to the extent provided to the contrary herein.
3. Shares Subject to the Plan. The Committee, from time to time, may,
pursuant to the Plan, provide for the grant of options for the purchase of
common stock of the Company upon the exercise thereof, and may grant stock
appreciation rights, for an aggregate of up to 1,337,000 shares, subject to
adjustment as provided in Section 8 of the 1989 Plan. Shares shall be made
available under the Plan only from treasury stock. No restricted stock awards
shall be made under the Plan.
Exercise of an option in any manner shall be result in a decrease in
the number of shares which thereafter may be available under the Plan by the
number of shares as to which such option is exercised.
4. Effectiveness of the Plan. The Plan shall become effective as of
March 27, 1997.
Exhibit 5.1
[American Stores Letterhead]
June 16, 1999
Securities and Exchange Commission
Division of Corporation Finance
Washington, D.C. 20549
Re: Registration Statement on Form S-8
Relating to American Stores 1997A
Stock Option and Stock Award Plan
Ladies and Gentlemen:
I am Chief Legal Officer of American Stores Company, a Delaware
corporation (the "Company"). This opinion is being delivered to you in
connection with the registration under the Securities Act of 1933, as amended
(the "Act"), of the shares of Common Stock, par value $1.00 per share (the
"Common Stock"), issuable under the American Stores Company 1997A Stock Option
and Stock Award Plan (the "Plan"). I am a member of the Bar of the District of
Columbia.
I am generally familiar with the properties and affairs of the Company
(including the Plan). I have also examined those records I deemed necessary for
the purpose of this opinion. On that basis, I am of the opinion that the
2,674,000 shares of Common Stock of the Company (as adjusted for a 2-for-1 stock
split), when issued pursuant to the terms of the Plan will be validly issued,
fully paid and nonassessable shares of the Company's Common Stock.
I hereby consent to the filing of this opinion as an exhibit to the
Registration Statement of Form S-8 relating to the Plan.
Very truly yours,
/s/ Kathleen E. McDermott
Kathleen E. McDermott
Exhibit 23.1
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement (Form
S-8 No. 333-00000) pertaining to the American Stores Company 1997A Stock Option
and Stock Award Plan of our report dated March 17, 1999, with respect to the
consolidated financial statements of American Stores Company, included in its
Annual Report (Form 10-K) for the year ended January 30, 1999 filed with the
Securities and Exchange Commission.
Ernst & Young LLP
Salt Lake City, Utah
June 16, 1999
