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AS FILED WITH THE SECURITIES AND EXCHANGE
COMMISSION ON OCTOBER 8, 1998
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
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DOMINICK'S SUPERMARKETS, INC.
(Exact Name of Registrant as Specified in Its Charter)
DELAWARE 94-3220603
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
505 RAILROAD AVENUE 60164
NORTHLAKE, ILLINOIS (Zip Code)
(Address of principal executive offices)
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1997 EMPLOYEE STOCK PURCHASE PLAN
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Copy to:
DEBORAH C. PASKIN, ESQ. THOMAS C. SADLER, ESQ.
GROUP VICE PRESIDENT AND LATHAM & WATKINS
GENERAL COUNSEL 633 WEST FIFTH STREET
505 RAILROAD AVENUE SUITE 4000
NORTHLAKE, ILLINOIS 60164 LOS ANGELES, CALIFORNIA 90071
(708) 562-1000 (213) 485-1234
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
<TABLE>
<CAPTION>
Calculation of Registration Fee
====================================================================================================================
Proposed
Proposed Maximum
Amount Maximum Aggregate Amount of
Title of Securities to be Offering Price Offering Registration
to be Registered Registered Per Share (1) Price Fee
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<S> <C> <C> <C> <C>
Common Stock 100,000 $40.875 $4,087,500.00 $1,239.00
$.01 par value
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</TABLE>
(1) For purposes of computing the registration fee only. Pursuant to Rule
457(h), the Proposed Maximum Offering Price Per Share is based upon the
average of the high and low prices for the Company's Common Stock on
the composite tape for the New York Stock Exchange on October 5, 1998.
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PART I
ITEM 1. PLAN INFORMATION.
Not required to be filed with this Registration Statement.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
Not required to be filed with this Registration Statement.
PART II
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Securities and Exchange
Commission (the "Commission") by Dominick's Supermarkets, Inc., a Delaware
corporation (the "Company" and the "Registrant"), are incorporated as of their
respective dates in this Registration Statement by reference:
(a) The Company's Annual Report on Form 10-K, as filed
with the Commission on January 30, 1998;
(b) The Company's Quarterly Report on Form 10-Q, as filed
with the Commission on March 10, 1998;
(c) The Company's Quarterly Report on Form 10-Q, as filed
with the Commission on June 2, 1998;
(d) The Company's Quarterly Report on Form 10-Q, as filed
with the Commission on September 22, 1998; and
(e) The description of the common stock, par value $.01
per share (the "Common Stock"), of the Company
contained in the Company's Registration Statement on
Form 8-A, as filed with the Commission on October 24,
1996.
All documents filed by the Company pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), subsequent to the date of this Registration Statement and 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, are incorporated by reference in this Registration Statement and are a
part hereof from the date of filing such documents. Any statement contained in a
document incorporated or deemed to be incorporated by reference herein shall be
deemed to be modified or superseded for purposes of this Registration Statement
to the extent that a statement contained herein or in any other subsequently
filed document which also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
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ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the General Corporation Law of the State of
Delaware (the "Delaware Corporation Law") gives Delaware corporations broad
powers to indemnify their present and former directors and officers against
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred in connection with threatened,
pending or completed actions, suits or proceedings to which they are parties or
are threatened to be made parties by reason of being or having been such
directors or officers, subject to specified conditions and exclusions; gives a
director or officer who successfully defends an action the right to be so
indemnified; and permits a corporation to buy directors' and officers' liability
insurance. Such indemnification is not exclusive of any other rights to which
those indemnified may be entitled under any by-law, agreement, vote of
stockholders or otherwise.
As permitted by Section 145 of the Delaware Corporation Law,
Article V of the Amended and Restated Bylaws of the Company provides for the
indemnification by the Company of its directors, officers, employees and agents,
against liabilities and expenses incurred in connection with actions, suits or
proceeds brought against them by a third party or in the right of the
corporation, by reason of the fact that they were or are such directors,
officers, employees or agents.
Article VI of the Company's Amended and Restated Certificate
of Incorporation provides that to the fullest extent permitted by the Delaware
Corporation Law as the same exists or may hereafter be amended, a director of
the Company shall not be liable to the Company or its stockholders for monetary
damages for breach of fiduciary duty as a director.
The Company has entered into, or intends to enter into,
agreements to indemnify its directors and executive officers in addition to the
indemnification provided for in the Company's Amended and Restated Certificate
of Incorporation and Amended and Restated Bylaws. These agreements, among other
things, will indemnify the Company's directors and executive officers for
certain expenses (including attorneys' fees) and all losses, claims,
liabilities, judgments, fines and settlement amounts incurred by such person
arising out of or in connection with such person's service as a director or
officer of the Company to the fullest extent permitted by applicable law.
Policies of insurance may be obtained and maintained by the
Company under which its directors and officers will be insured, within the
limits and subject to the limitations of the policies, against certain expenses
in connection with the defense of, and certain liabilities which might be
imposed as a result of, actions, suits or proceedings to which they are parties
by reason of being or having been such directors or officers.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
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ITEM 8. EXHIBITS.
4.1 Specimen Common Stock Certificate (Incorporated by
reference to Exhibit 4.1 to the Company's
Registration Statement on Form S-1, Number 333-14995)
5.1 Opinion of Latham & Watkins
23.1 Consent of Ernst & Young LLP
23.2 Consent of Latham & Watkins (included as part of
Exhibit 5.1)
24.1 Power of Attorney (included on page 6)
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;
(ii) To reflect in the prospectus any facts
or events arising after the effective date of this 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 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% 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)
shall not apply to information included in a post-effective amendment by those
paragraphs contained in periodic reports filed with or furnished to the
Commission by the Registrant pursuant to Section 13 or Section 15(d) of the
Exchange Act that are incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under
the Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
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(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in this Registration Statement shall be deemed to be a
new registration statement relating to the securities offered herein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, Dominick's Supermarkets, Inc. 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 Northlake, State of
Illinois, on October 6, 1998.
DOMINICK'S SUPERMARKETS, INC.
By: /s/ Robert A. Mariano
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Robert A. Mariano
President and Chief Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below appoints Robert A.
Mariano, Darren W. Karst and Patrick L. Graham and each of them, as his or her
true and lawful attorney-in-fact and agent with full power of substitution and
resubstitution, for him or her and in his or her name, place and stead, in any
and all capacities, to sign any or all amendments (including post-effective
amendments), to this Registration Statement, and to file the same, with all
exhibits thereto, and all documents in connection therewith, with the Securities
and Exchange Commission granting unto each 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 foregoing, as fully to all intents and
purposes as he or she might or could do in person, hereby ratifying and
confirming all that each said attorney-in-fact and agent, or his or her
substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Registration Statement has been signed by the following persons in
the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
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<S> <C> <C>
/s/ Ronald W. Burke Chairman of the Board October 6, 1998
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Ronald W. Burkle
/s/ Robert A. Mariano Chief Executive Officer, October 6, 1998
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Robert A. Mariano President, Director
/s/ Andrew Campbell Executive Vice President October 6, 1998
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Andrew Campbell and Chief Financial Officer
/s/ Darren W. Karst Director October 6, 1998
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Darren W. Karst
Director October 6, 1998
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Evan Bayh
/s/ Grace Barry Director October 6, 1998
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Grace Barry
</TABLE>
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<TABLE>
<S> <C> <C>
Director October 6, 1998
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Peter P. Copses
/s/ Linda McLoughlin Figel Director October 6, 1998
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Linda McLoughlin Figel
/s/ Patrick L. Graham Director October 6, 1998
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Patrick L. Graham
Director October 6, 1998
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David B. Kaplan
Director October 6, 1998
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Antony P. Ressler
Director October 6, 1998
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Ira L. Tochner
</TABLE>
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INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT PAGE
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<S> <C>
4.1 Specimen Common Stock Certificate (Incorporated by reference to
Exhibit 4.1 to the Company's Registration Statement on Form S-1,
Number 333-14995)
5.1 Opinion of Latham & Watkins 9
23.1 Consent of Ernst & Young LLP 10
23.2 Consent of Latham & Watkins (included as part of Exhibit 5.1) 9
24.1 Power of Attorney (included on page 6)
</TABLE>
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Exhibit 5.1
[LATHAM & WATKINS LETTERHEAD]
October 8, 1998
Dominick's Supermarkets, Inc.
505 Railroad Avenue
Northlake, Illinois 60164
Re: Dominick's Supermarkets, Inc.
Registration Statement on Form S-8
Ladies and Gentlemen:
At your request, we have examined the Registration Statement
on Form S-8 (the "Registration Statement"), which you intend to file with the
Securities and Exchange Commission in connection with the registration under the
Securities Act of 1933, as amended, of 100,000 shares of Common Stock, par value
$.01 per share (the "Shares"), to be issued by Dominick's Supermarkets, Inc.
(the "Company") under the 1997 Employee Stock Purchase Plan (the "Plan") of the
Company. We are familiar with the proceedings undertaken in connection with the
authorization, issuance and sale of the Shares. Additionally, we have examined
such questions of law and fact as we have considered necessary or appropriate
for purposes of rendering this opinion.
Based upon the foregoing, we are of the opinion that the
Shares have been duly authorized, and upon the issuance of Shares under the
terms of the Plan and delivery and payment therefor of consideration at least
equal to the aggregate par value of the Shares issued, such Shares will be
validly issued, fully paid and non-assessable.
We consent to your filing this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Latham & Watkins
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Exhibit 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the
Registration Statement (Form S-8) pertaining to the 1997 Employee Stock Purchase
Plan of Dominick's Supermarkets, Inc. of our report dated December 16, 1997 with
respect to the consolidated financial statements of Dominick's Supermarkets,
Inc. included in the Annual Report (Form 10-K) for the year ended November 1,
1997.
/s/ Ernst & Young LLP
Chicago, Illinois
October 6, 1998
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