As filed with the Securities and Exchange Commission on August 30, 1996
Registration No. 333-__________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
FURR'S/BISHOP'S, INCORPORATED
(Exact name of registrant as specified in its charter)
Delaware 75-2350724
(State or other jurisdiction (I.R.S. Employer Identification No.)
of incorporation or organization)
6901 Quaker Avenue,
Lubbock, Texas 79413
(Address, including zip code, of principal executive offices)
1995 Stock Option Plan of Furr's/Bishop's, Incorporated
(Full title of the Plan)
Kevin E. Lewis
Chairman, President and Chief Executive Officer
FURR'S/BISHOP'S, INCORPORATED
6901 Quaker Avenue
Lubbock, Texas 79413
(806) 792-7151
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
COPIES TO:
Kenneth L. Stewart, Esq.
Fulbright & Jaworski L.L.P.
2200 Ross Avenue
Suite 2800
Dallas, Texas 75201
(214) 855-8000
CALCULATION OF REGISTRATION FEE
===============================================================================
Title of Amount to be Proposed Max- Proposed Max- Amount of
Securities Registered (1) imum Offering imum Aggregate Registration
to be Price Per Offering Fee
Registered Share (2) Price (2)
- -------------------------------------------------------------------------------
Common Stock, 2,702,720 $ 1.00 $ 2,702,720 $ 931.97
par value $0.01 shares (3)
per share
===============================================================================
(1) Plus such additional indeterminable number of shares as may be acquired
pursuant to the 1995 Stock Option Plan of Furr's/Bishop's, Incorporated
(the "1995 Stock Option Plan") in the event of a stock dividend, stock
split, recapitalization or other similar change in the Common Stock.
(2) Estimated pursuant to Rule 457(h)(1) under the Securities Act of 1933, as
amended, solely for the purpose of calculating the registration fee on the
basis of the average of the high and low sales prices for the Common Stock
of Furr's/Bishop's, Incorporated on August 26, 1996, as reported on the New
York Stock Exchange, within five business days prior to filing.
(3) Represents the number of shares of Common Stock that may be purchased upon
exercise of options granted under Registrant's 1995 Stock Option Plan.
2
REGISTRATION STATEMENT
ON
FORM S-8
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
Incorporated by reference in this Registration Statement
are the following documents filed by Furr's/Bishop's, Incorporated
("Registrant") with the Securities and Exchange Commission (the
"Commission"):
(a) Registrant's Registration Statement on Form S-1 (File
No. 333-4576), filed pursuant to the Securities Act of 1933,
as amended.
(b) Registrant's (i) annual report on Form 10-K for the
period ended January 2, 1996, (ii) quarterly reports on Form
10-Q for each of the periods ended on April 2 and July 2, 1996
and (iii) current report on Form 8-K filed April 12, 1996, each
filed pursuant to Section 13(a) of the Securities Exchange Act
of 1934, as amended.
(c) The description of Registrant's Common Stock contained
in the Registration Statement on Form 8-A filed on November 28,
1995 as amended by Form 8A/A filed December 5, 1995.
All documents subsequently filed by Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), prior to the filing of a post-
effective amendment which indicates that all securities offered have
been sold or which deregisters all securities then remaining unsold,
shall be deemed to be incorporated by reference herein and to be a
part hereof from the date of filing of 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 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
Item 5. Interests of Named Experts and Counsel.
Not applicable
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3
Item 6. Indemnification of Directors and Officers.
Registrant is a Delaware corporation. Section 102(b)(7) of
the General Corporation Law of Delaware enables a Delaware
corporation to provide in its certificate of incorporation, and
Registrant has so provided in its Amended and Restated Certificate of
Incorporation ("Certificate of Incorporation"), for the elimination
or limitation of the personal liability of a director to the
corporation or its stockholders for monetary damages for breach of
fiduciary duty as a director; provided, however, that a director's
liability is not eliminated or limited: (1) for any breach of the
director's duty of loyalty to the corporation or its stockholders;
(2) for acts or omissions not in good faith or which involve an
intentional misconduct or a knowing violation of law; (3) under
Section 174 of the General Corporation Law of Delaware (which imposes
liability on directors for unlawful payment of dividends or unlawful
stock purchases or redemptions); or (4) for any transaction from
which the director derived an improper personal benefit. The
Certificate of Incorporation further provides that if the Delaware
General Corporation Law is amended to authorize the further
elimination or limitation of the liability of directors, then the
liability of a director shall be eliminated or limited to the fullest
extent permitted by the Delaware General Corporation Law, as amended.
Section 145 of the General Corporation Law of Delaware
empowers a corporation to indemnify any person who was or is a party
or witness or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action by or
in the right of the corporation) by reason of the fact that he or she
is or was a director, officer, employee or agent of the corporation
or is or was serving at the request of the corporation as a director,
officer, employee or agent of another corporation or enterprise.
Depending on the character of the proceeding, a corporation may
indemnify against expenses (including attorneys' fees), judgments,
fines and amounts paid in settlement actually and reasonably incurred
in connection with such action, suit or proceeding if the person
indemnified acted in good faith and in a manner he or she reasonably
believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding,
had no reasonable cause to believe his or her conduct was unlawful.
If the person indemnified is not wholly successful in such action,
suit or proceeding, but is successful, on the merits or otherwise, in
one or more but less than all claims, issues or matters in such
proceeding, he or she may be indemnified against expenses actually
and reasonably incurred in connection with each successfully resolved
claim, issue or matter. In the case of an action or suit by or in
the right of the corporation, no indemnification may be made in
respect to any claim, issue or matter as to which such person shall
have been adjudged to be liable to the corporation unless and only to
the extent that the Court of Chancery or the court in which such
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action or suit was brought shall determine that despite the
adjudication of liability such person is fairly and reasonably
entitled to indemnity for such expenses which the court shall deem
proper. Section 145 provides that to the extent a director, officer,
employee or agent of a corporation has been successful in the defense
of any action, suit or proceeding referred to above or in the defense
of any claim, issue or manner therein, he or she shall be indemnified
against expenses (including attorneys' fees) actually and reasonably
incurred by him or her in connection therewith.
The By-laws of Registrant provide that, to the fullest
extent permitted by the General Corporation Law of the State of
Delaware, Registrant shall indemnify any person who was or is a party
or is threatened to be made a party to any action, suit or proceeding
of the type described above by reason of the fact that he or she is
or was a director or officer of Registrant or is or was serving at
the request of Registrant as a director, officer, employee or agent
of another corporation, partnership, joint venture, trust or other
enterprise. No expenses will be paid in advance except, as
authorized by the Board of Directors, to a director or office for
expenses incurred while acting in his or her capacity as a director
or officer, who has delivered an undertaking to the corporation to
repay all amounts advanced if it should be later determined that such
director or officer was not entitled to indemnification. The By-laws
further provide that the above rights of indemnification are not
exclusive of any other rights of indemnification that a director or
officer may be entitled to from any other source.
Each current director has entered into an Indemnification
Agreement dated as of January 2, 1996 by and between Registrant and
such director pursuant to which Registrant will indemnify such
director and hold such director harmless from any and all losses,
expenses and fines to the fullest extent authorized, permitted or not
prohibited (i) by the Delaware General Corporation Law or any other
applicable law (including judicial, regulatory or administrative
interpretations or readings thereof), the Certificate of
Incorporation or By-laws as in effect on the date of execution of the
agreement or other statutory provision authorizing such
indemnification that is adopted after January 2, 1996. In the event
that after the date of the agreements Registrant provides any greater
right of indemnification, in any respect, to any other person serving
as an officer or director of Registrant, then such greater right of
indemnification shall inure to the benefit of the respective director
and shall be deemed to be incorporated in the relevant agreement as a
basis for indemnity, at each director's election, together with the
indemnity expressly set forth therein.
Registrant has purchased a directors and officers insurance
policy under which each director and certain officers of Registrant
are insured against certain liabilities.
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Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit No. Description
----------- -----------
4.1 1995 Stock Option Plan of Furr's/Bishop's, Incorporated
(incorporated by reference from Annex B of the Prospectus
included in Registrant's Registration Statement on Form S-
4, File No. 33-92236).
4.2 Amended and Restated Certificate of Incorporation of
Registrant (incorporated by reference from Exhibit 3.1 of
Registrant's Registration Statement on Form S-4, File No.
33-38978).
4.3 Certificate of Amendment to the Amended and Restated
Certificate of Incorporation of Registrant (incorporated by
reference from Annex D of the Prospectus included in
Registrant's Registration Statement on Form S-4, File No.
33-92236).
4.4 Second Certificate of Amendment to the Amended and Restated
Certificate of Incorporation of Registrant (incorporated by
reference from Registrant's Form 10-K for the fiscal year
ended January 2, 1996).
4.5 By-laws of Registrant (incorporated by reference from
Exhibit 3.2 of Registrant's Registration Statement on Form
S-4, File No. 33-38978).
5.1 Opinion of Fulbright & Jaworski L.L.P.
23.1 Consent of Deloitte & Touche L.L.P.
23.2 Consent of Fulbright & Jaworski L.L.P. (included in their
opinion filed as Exhibit 5.1).
24.1 Power of Attorney (included on the signature page of this
Registration Statement).
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;
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(i) To include any prospectus required by
section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts
or events arising after the effective dates 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;
(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-8, and the information required to be included
in a post-effective amendment by those paragraphs is
contained in periodic reports filed by the registration
pursuant to Section 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 Registrant hereby undertakes that, for
purposes of determining any liability under the Securities
Act of 1933, each filing of Registrant's annual report
pursuant to Section 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 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.
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(c) Insofar as indemnification for liabilities arising
under the Securities Act of 1933 may be permitted to
directors, officers and controlling persons of Registrant
pursuant to the foregoing provisions, or otherwise,
Registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification
is against public policy as expressed in the Securities
Act of 1933 and is, therefore, unenforceable. In the
event that a claim for indemnification against such
liabilities (other than the payment by Registrant of
expenses incurred or paid by a director, officer or
controlling person of 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,
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 of 1933 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, 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 Lubbock, Texas on this 27th day of August, 1996.
FURR'S/BISHOP'S, INCORPORATED
/s/ Kevin E. Lewis
-----------------------------
By: Kevin E. Lewis
Chairman, President and Chief
Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below hereby authorizes Kevin E. Lewis, with full power of substitution, to
file one or more amendments, including post-effective amendments, to this
Registration Statement, which amendments may make such changes as Kevin E.
Lewis deems appropriate, and each person whose signature appears below,
individually and in each capacity stated below, hereby appoints Kevin E. Lewis
acting individually, with full power of substitution, as Attorney-in-Fact and
agent to execute his name and on his behalf any such amendments to this
Registration Statement.
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/ Kevin E. Lewis August 27, 1996
- -------------------------
Kevin E. Lewis Chairman, President and
Chief Executive Officer
/s/ Alton R. Smith August 27, 1996
- -------------------------
Alton R. Smith Principal Accounting
and Financial Officer
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/s/ E.W. Williams, Jr. August 30, 1996
- -------------------------
E.W. Williams, Jr. Director
/s/ Suzanne Hopgood August 29, 1996
- -------------------------
Suzanne Hopgood Director
/s/ Kenneth F. Reimer August 29, 1996
- -------------------------
Kenneth F. Reimer Director
/s/ Sanjay Varma August 29, 1996
- -------------------------
Sanjay Varma Director
/s/ Russell A. Belinsky August 29, 1996
- -------------------------
Russell A. Belinsky Director
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EXHIBIT INDEX
Exhibit Description
4.1 1995 Stock Option Plan of Furr's/Bishop's, Incorporated
(incorporated by reference from Annex B of the Prospectus
included in Registrant's Registration Statement on Form
S-4, File No. 33-92236).
4.2 Amended and Restated Certificate of Incorporation of
Registrant (incorporated by reference from Exhibit 3.1 of
Registrant's Registration Statement on Form S-4, File No.
33-38978).
4.3 Certificate of Amendment to the Amended and Restated
Certificate of Incorporation of Registrant (incorporated by
reference from Annex D of the Prospectus included in
Registrant's Registration Statement on Form S-4, File No.
33-92236).
4.4 Second Certificate of Amendment to the Amended and Restated
Certificate of Incorporation of Registrant (incorporated by
reference from Registrant's Form 10-K for the fiscal year
ended January 2, 1996).
4.5 By-laws of Registrant (incorporated by reference from
Exhibit 3.2 of Registrant's Registration Statement on Form
S-4, File No. 33-38978).
5.1 Opinion of Fulbright & Jaworski L.L.P.
23.1 Consent of Deloitte & Touche L.L.P.
23.2 Consent of Fulbright & Jaworski L.L.P.
(included in their opinion filed as Exhibit 5.1).
24.1 Power of Attorney (included on the signature page of this
Registration Statement).
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EXHIBIT 5.1
OPINION OF FULBRIGHT & JAWORSKI L.L.P.
August 30, 1996
Furr's/Bishop's, Incorporated
6901 Quaker Ave
Lubbock, Texas 79413
Ladies and Gentlemen:
We refer to the Registration Statement on Form S-8 (the "Registration
Statement") filed with the Securities and Exchange Commission under the
Securities Act of 1933, as amended (the "Act"), on behalf of Furr's/Bishop's,
Incorporated, a Delaware corporation (the "Company"), relating to 2,702,720
shares of the Company's Common Stock, $0.01 par value (the "Common Stock"), to
be issued under the 1995 Stock Option Plan of Furr's/Bishop's, Incorporated
(the "Plan").
As counsel to the Company, we have examined such corporate records, other
documents and such questions of law as we have deemed necessary or appropriate
for the purposes of this opinion and, upon the basis of such examinations,
advise you that in our opinion all necessary corporate proceedings by the
Company have been duly taken to authorize the issuance of the Common Stock
pursuant to the Plan and the shares of Common Stock being registered pursuant
to the Registration Statement, when issued and paid for in accordance with the
terms of the Plan, will be duly authorized, validly issued, fully paid and non-
assessable.
We consent to the filing of this opinion as Exhibit 5.1 to the Registration
Satement. This consent is not to be construed as an admission that we are a
person whose consent is required to be filed with the Registration Statement
under the provisions of the Act.
Very truly yours,
/s/ Fulbright & Jaworski L.L.P.
-------------------------------
Fulbright & Jaworski L.L.P.
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EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
Furr's/Bishop's, Incorporated on Form S-8 of our report dated March 28, 1996,
appearing in the Annual Report on Form 10-K of Furr's/Bishop's, Incorporated
for the year ended January 2, 1996.
/s/ Deloitte & Touche L.L.P.
- ----------------------------
Deloitte & Touche L.L.P.
Dallas, Texas
August 28, 1996
PAGE 12