As filed with the Securities and Exchange Commission on November 30, 1998
Registration No. 333-______
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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FFP MARKETING COMPANY, INC.
(Exact name of registrant as specified in its charter)
Texas 75-2735779
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
2801 Glenda Avenue
Fort Worth, Texas 76117
(Address of principal executive offices) (Zip Code)
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FFP MARKETING COMPANY, INC. NONQUALIFIED STOCK OPTION PLAN
(Full title of the plan)
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Craig T. Scott Copy to:
FFP Marketing Company, Inc. W. Alan Kailer, Esq.
2801 Glenda Avenue Jenkens & Gilchrist,
Fort Worth, Texas 76117 A Professional Corporation
(817) 838-4700 1445 Ross Avenue, Suite 3200
Dallas, Texas 75202
(Name, address and telephone number
including area code of agent for service)
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CALCULATION OF REGISTRATION FEE
Proposed Proposed
Amount Maximum Maximum Amount of
Title of Class of to be Offering Price Aggregate Registration Fee(4)
Securities to be Registered Registered(1)(2) per Share(3)(4) Offering Price(3)(4)
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Common Stock, $.01 par value per share 234,333 Shares $2.9687 $695,666.487 $193.40
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(1) The securities to be registered consist of 234,333 shares reserved
for issuance under the FFP Marketing Company, Inc. Nonqualified Stock Option
Plan (the "Plan").
(2) Pursuant to Rule 416, this Registration Statement is deemed to
include additional shares of Common Stock issuable under the terms of the Plan
to prevent dilution resulting from any future stock split, stock dividend or
similar transaction.
(3) Estimated solely for the purpose of calculating the registration
fee.
(4) Calculated pursuant to Rule 457(c) and (h). Accordingly, the price
per share of the Common Stock offered hereunder pursuant to the Plan is based on
the following shares of Common Stock reserved for issuance under the Plan and
subject to options already granted thereunder at the following prices:
Number of Shares of Common
Stock Reserved for Issuance Exercise Price Per Share
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164,333 $2.539
20,000 $2.920
25,000 $4.062
25,000 $4.739
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
Item 1. Plan Information*
Item 2. Registrant Information and Employee Plan Annual Information*
PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The registrant hereby incorporates by reference in this Registration
Statement the following documents previously filed by the registrant with the
Securities and Exchange Commission (the "Commission"):
(1) The registrant's Annual Report on Form 10-K filed with the
Commission for the fiscal year ended December 28, 1997.
(2) The registrant's amendment on Form 10-K/A to its Annual
Report on Form 10-K filed with the Commission for the fiscal year ended
December 28, 1997.
(3) The registrant's Quarterly Report on form 10-Q filed with
the Commission for the quarterly period ended March 29, 1998.
(4) The registrant's Quarterly Report on Form 10-Q filed with
the Commission for the quarterly period ended June 28, 1998.
(5) The registrant's quarterly Report on Form 10-Q filed with
the Commission for the quarterly period ended September 27, 1998.
(6) The registrant's Current Report on Form 8-K filed with the
Commission on January 12, 1998.
(7) The description of the Common Stock, par value $.01 per
share, of the registrant (the "Common Stock") set forth in the
Registration Statement on Form 8-A filed with the Commission on
December 22, 1997, including any amendment or report filed for the
purpose of updating such description.
All documents filed by the registrant with the Commission 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 shall be deemed to be incorporated herein by reference and to be a
part hereof from the date of the filing of such documents until such time as
there shall have been filed a post-effective amendment that indicates that all
securities offered hereby have been sold or that deregisters all securities
remaining unsold at the time of such amendment.
Item 4. Description of Securities.
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
Not Applicable.
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*Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from this Registration Statement in accordance with Rule
428 under the Securities Act of 1933, as amended (the "Securities Act"), and the
Note to Part I of Form S-8.
II-1
Item 6. Indemnification of Directors and Officers.
The Articles of Incorporation of the Registrant provide that the Registrant
shall indemnify officers and directors, and may indemnify its other employees
and agents, to the fullest extent permitted by law. The laws of the State of
Texas permit, and in some cases require, corporations to indemnify officers,
directors, agents and employees who are or have been a party to or are
threatened to be made a party to litigation against judgments, fines,
settlements and reasonable expenses under certain circumstances.
The Registrant has also adopted provisions in its Articles of Incorporation that
limit the liability of its directors and officers to the fullest extent
permitted by the laws of the State of Texas. Under the Registrant's Articles of
Incorporation, and as permitted by the laws of the State of Texas, a director or
officer is not liable to the Registrant or its shareholders for damages for
breach of fiduciary duty. Such limitation of liability does not affect liability
for (i) breach of the director's duty of loyalty to the Registrant or its
shareholders, (ii) acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of the law, (iii) any transaction
from which the director derived an improper personal benefit, or (iv) the
payment of any unlawful distribution.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
(a) Exhibits.
The following documents are filed as a part of this
Registration Statement.
Exhibit Description of Exhibit
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3.1* Articles of Incorporation of the Registrant (Exhibit 3.1)
3.2* Bylaws of the Registrant (Exhibit 3.2)
4.1 FFP Marketing Company, Inc. Nonqualified Stock Option Plan
5.1 Opinion of Jenkens & Gilchrist, a Professional Corporation
23.1 Consent of Jenkens & Gilchrist, a Professional Corporation
(included in their opinion filed as Exhibit 5.1 hereto)
23.2 Consent of KPMG Peat Marwick LLP
24.1 Power of Attorney (included with signature page of this
Registration Statement)
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* Filed as the exhibit shown in parenthesis contained in the registrant's
Registration Statement on Form S-4 (No.333-41709) filed with the
Commission, and incorporated herein by reference.
II-2
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 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;
(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; and
(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 (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 this
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 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 of whether such indemnification by it is against
public policy as expressed in the 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, the registrant
certifies that it has reasonable grounds to believe that it meets all 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 Fort Worth, State of Texas, on November 30, 1998:
FFP MARKETING COMPANY, INC.
By: /s/ John H. Harvison
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John H. Harvison,
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each individual whose signature
appears below constitutes and appoints John H. Harvison and Craig T. Scott, and
each of them, each with full power to act without the other, as such person's,
true and lawful attorneys-in-fact and agents with full power of substitution and
resubstitution, for such person and in such person's 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 all documents in connection therewith, with the
Commission, granting unto said attorneys-in-fact and agents full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in connection therewith, as fully to all intents and purposes as he
might or could do in person hereby ratifying and confirming all that said
attorneys-in-fact and agents or his substitutes, may lawfully do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated:
Signature Capacity Date
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/s/ John H. Harvison Chairman of the Board and November 30, 1998
- ------------------------- Chief Executive Officer
John H. Harvison (principal executive officer)
/s/ Robert J. Byrnes President, Chief Operating November 30, 1998
- ------------------------- Officer and Director
Robert J. Byrnes (principal operating officer)
/s/ Craig T. Scott Vice President - Finance November 30, 1998
- ------------------------- and General Counsel
Craig T. Scott (principal accounting officer)
/s/ J.D. St. Clair Director November 30, 1998
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J.D. St. Clair
/s/ Michael Triantafellou Director November 30, 1998
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Michael Triantafellou
Director , 1998
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John W. Hughes
Director , 1998
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Garland R. McDonald
/s/ John D. Harvison Director November 30, 1998
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John D. Harvison
Director , 1998
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E. Michael Gregory
EXHIBIT INDEX
Exhibit
Number Document Description
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3.1* Articles of Incorporation of the Registrant (Exhibit 3.1)
3.2* Bylaws of the Registrant (Exhibit 3.2)
4.1 FFP Marketing Company, Inc. Nonqualified Stock Option Plan
5.1 Opinion of Jenkens & Gilchrist, a Professional Corporation
23.1 Consent of Jenkens & Gilchrist, a Professional Corporation
(included in their opinion filed as Exhibit 5.1 hereto)
23.2 Consent of KPMG Peat Marwick LLP
24.1 Power of Attorney (included with signature page of this
Registration Statement)
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*Filed as the exhibit shown in parenthesis contained in the Registrant's
Registration Statement on Form S-4 (No. 333-41709) filed with the Commission,
and incorporated herein by reference.