As filed with the Securities and Exchange Commission on November 25, 1997
Registration No. 333 - _____
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------
THE GRAND UNION COMPANY
(Exact Name of Registrant as Specified in its Charter)
DELAWARE 22-1518276
(State or Other Jurisdiction of (I.R.S. Employer Identification No.)
Incorporation or Organization
201 WILLOWBROOK BOULEVARD
WAYNE, NEW JERSEY 07470
(973) 890-6000
(Address, Including Zip Code, and Telephone Number,
including Area Code, of Registrant's Principal Executive Offices)
THE GRAND UNION COMPANY
1995 EQUITY INCENTIVE PLAN
AND
THE GRAND UNION COMPANY
1995 NON-EMPLOYEE DIRECTORS' STOCK OPTION PLAN
(Full Title of Plans)
GLENN J. SMITH, ESQ.
VICE PRESIDENT AND GENERAL COUNSEL
THE GRAND UNION COMPANY
201 WILLOWBROOK BOULEVARD
WAYNE, NEW JERSEY 07470
(973) 890-6000
(Name and Address, Including Zip Code,
and Telephone Number, Including Area Code, of Agent For Service)
Copies to:
TED S. WAKSMAN, ESQ.
WEIL, GOTSHAL & MANGES LLP
767 FIFTH AVENUE
NEW YORK, NEW YORK 10153
(212) 310-8000
CALCULATION OF REGISTRATION FEE
========================================================================================================================
Proposed Maximum Proposed Maximum
Title of Each Class of Securities Amount to be Offering Price Aggregate Offering Amount of
to be Registered Registered(1) Per Share(2) Price(2) Registration Fee
- ------------------------------------------------------------------------------------------------------------------------
Common Stock, par value $.01 per share 6,000,000 shares(3) $2.0625 $12,375,000 $3,750.00
- ------------------------------------------------------------------------------------------------------------------------
Common Stock, par value $.01 per share 100,000 shares(4) $2.0625 $ 206,250 $ 62.50
- ------------------------------------------------------------------------------------------------------------------------
Total 6,100,000 shares $2.0625 $12,581,250 $3,812.50
========================================================================================================================
(1) Plus such indeterminate number of shares of Common Stock of the Registrant
as may be issued to prevent dilution resulting from stock dividends, stock
splits or similar transactions in accordance with Rule 416 under the Securities
Act of 1933.
(2) Estimated pursuant to Rule 457(h) and Rule 457(c) under the Securities Act
of 1933, based upon the average of the bid and asked price of the Registrant's
Common Stock as reported on the Nasdaq Smallcap Market on November 19, 1997.
(3) Represents the number of shares of Common Stock that may be issued under The
Grand Union Company 1995 Equity Incentive Plan.
(4) Represents the number of shares of Common Stock that may be issued under The
Grand Union Company 1995 Non-Employee Directors' Stock Option Plan.
================================================================================
NYFS03...:\18\50318\0005\1708\FRMN187W.37C
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
Item 1.
The documents containing the information specified in Part I of this
Registration Statement will be sent or given to employees as specified by Rule
428(b)(1) of the Securities Act of 1933, as amended (the "Securities Act"). Such
documents are not required to be and are not filed with the Securities and
Exchange Commission (the "Commission") either as part of this Registration
Statement or as prospectuses or prospectus supplements pursuant to Rule 424.
These documents and the documents incorporated by reference in this Registration
Statement pursuant to Item 3 of Part II of this Form S-8, taken together,
constitute a prospectus that meets the requirements of Section 10(a) of the
Securities Act.
Item 2.
Upon written or oral request, any of the documents incorporated by
reference in Item 3 of Part II of this Registration Statement (which documents
are incorporated by reference in this Section 10(a) Prospectus), other documents
required to be delivered to eligible employees pursuant to Rule 428(b) or
additional information about The Grand Union Company 1995 Equity Incentive Plan
or The Grand Union Company 1995 Non-Employee Directors' Stock Option Plan and
the administrators of each are available without charge by contacting:
Glenn J. Smith, Esq.
The Grand Union Company
201 Willowbrook Boulevard
Wayne, New Jersey 07470
(973) 890-6000
I-1
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Commission by The Grand Union
Company (the "Company") are incorporated herein by reference:
(a) The Company's Annual Report on Form 10-K for the fiscal year
ended March 29, 1997.
(b) The Company's Quarterly Report on Form 10-Q for the quarter
ended October 11, 1997.
(c) The Company's Current Reports on Form 8-K dated June 17, 1997,
August 13, 1997, September 4, 1997 and October 29, 1997.
(d) The description of the Company's Common Stock, par value $.01
per share (the "Common Stock"), contained in the Company's Registration
Statement on Form 8-A filed with the Commission pursuant to Section 12 of the
Exchange Act, including any amendment or report filed for the purpose of
updating such description.
All documents subsequently filed by the Company with the Commission
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to
the filing of a post-effective amendment to this Registration Statement 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 a 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.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Generally, Section 145 of the General Corporation Law of the State
of Delaware (the "DGCL") permits a corporation, under specified circumstances,
to indemnify certain persons made a party to an action, by reason of the fact
that such person 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, partnership, joint
venture, trust or other enterprise. In the case of an action by or in the right
of the corporation, no indemnification may be made in respect of any matter as
to which that person was adjudged liable to the corporation unless the Delaware
Court of Chancery or the court in which the action was brought determines that
despite the adjudication of liability that person is fairly and reasonably
entitled to indemnity for proper expenses. To the extent that person has been
successful in the defense of any matter, that person shall be indemnified
against expenses actually and reasonably incurred by him.
Paragraph 3 of Article FIFTH of the Certificate of Incorporation of
the Company provides that the Company shall, to the maximum extent permitted
from time to time under the DGCL, indemnify and upon
II-1
request shall advance expenses to any person who is or was a party or is
threatened to be made a party to any threatened, pending, or completed action,
suit, proceeding or claim, whether civil, criminal, administrative or
investigative, by reason of the fact that such person is or was or has agreed to
be a director or officer of the Company or while a director or officer is or was
serving at the request of the Company as a director, officer, partner, trustee,
employee or agent of any corporation, partnership, joint venture, trust or other
enterprise, including service with respect to employee benefit plans, against
expenses (including attorney's fees and expenses), judgment, fines, penalties
and amounts paid in settlement incurred in connection with the investigation,
preparation to defend or defense of such action, suit, proceeding or claim;
provided, however, that the Company is not required to indemnify or advance
expenses to any person in connection with any action, suit, proceeding, claim or
counterclaim initiated by or on behalf of such person. The Company's Certificate
of Incorporation provides that the respective rights of indemnification shall
not be exclusive of other rights to which any director or officer may be
entitled.
The Company has entered into indemnification agreements with each of
its directors and executive officers pursuant to which the Company has agreed to
indemnify such persons to the fullest extent permitted by law against expenses,
judgments, fines, penalties or amounts paid in settlement actually and
reasonably incurred by such person in connection with legal proceedings in which
the person was involved by reason of being a director or officer of the Company.
Under current law, such indemnification generally is available if such person
acted in good faith and in a manner he or she reasonably believed to be in the
best interests of the Company and, with respect to criminal proceedings, had no
reasonable cause to believe his or her conduct was unlawful. Under current law,
such person is not indemnified in respect of matters as to which he or she has
been adjudged liable to the Company unless a court determines that, under the
circumstances, he or she is reasonably entitled to such indemnification.
Comparable indemnification rights are also provided pursuant to the Company's
Certificate of Incorporation.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers or persons controlling
the Company as disclosed above, the Company has been informed that in the
opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Securities Act and is therefore
unenforceable.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
4.1 - Certificate of Incorporation of the Company
(incorporated by reference to Exhibit 3.1 to the
Company's Annual Report on Form 10-K for the fiscal
year ended March 29, 1997).
4.2 - Certificate of Designation of Class A Convertible
Preferred Stock (incorporated by reference to
Exhibit 10.4 to the Company's Quarterly Report on
Form 10-0 for the period ended October 12, 1996).
4.3 - Certificate of Designation of Class B Convertible
Preferred Stock (incorporated by reference to
Exhibit 3.3 to the Company's Annual Report on Form
10-K for the fiscal year ended March 29, 1997).
4.4 - By-Laws of the Company (incorporated by reference to
Exhibit 3.1 to the Company's Quarterly Report on
Form 10-Q for the period ended October 12, 1996).
II-2
4.5 - The Grand Union Company 1995 Equity Incentive Plan.
4.6 - The Grand Union Company 1995 Non-Employee Directors'
Stock Option Plan.
5.1 - Opinion of Weil, Gotshal & Manges LLP.
23.1 - Consent of Price Waterhouse LLP.
23.2 - Consent of Weil, Gotshal & Manges LLP (included in
Exhibit 5.1).
24.1 - Power of Attorney (included as part of the signature
page to this Registration Statement and incorporated
herein by reference).
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 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 paragraph (a)(1)(i) and (a)(1)(ii) do not
apply if the information required to be included in a post-effective
amendment by the foregoing paragraphs is contained in periodic
reports filed by the Company 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.
(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 that is incorporated by reference in the
Registration Statement shall be deemed to be a new Registration
Statement relating to the securities offered
II-3
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
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.
II-4
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 the City of Wayne, State of New Jersey, on this 20th day of
November, 1997.
THE GRAND UNION COMPANY
By: /s/ Jeffrey P. Freimark
--------------------------------
Name: Jeffrey P. Freimark
Title: Vice President and
Chief Financial and
Administrative Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints each of J. Wayne Harris, Jeffrey P.
Freimark and Francis E. Nicastro acting individually, 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 and all 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 or she might or could do in
person, hereby ratifying and confirming all that said attorney-in-fact and
agent, or his or her 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 the date indicated.
Signature Title Date
--------- ----- ----
/s/ J. Wayne Harris Chairman of the Board, Chief November 20, 1997
- ----------------------- Executive Officer and
J. Wayne Harris Director (Principal
Executive Officer)
/s/ Jeffrey P. Freimark Vice President and Chief November 20, 1997
- ----------------------- Financial and Administrative
Jeffrey P. Freimark Officer (Principal Financial
and Accounting Officer)
/s/ Gary M. Philbin President, Chief Merchandising November 20, 1997
- ----------------------- Officer and Director
Gary M. Philbin
/s/ Roger E. Stangeland Director November 20, 1997
- -----------------------
Roger E. Stangeland
/s/ James J. Costello Director November 20, 1997
- -----------------------
James J. Costello
/s/ Jordan H. Krimstein Director November 20, 1997
- -----------------------
Jordan H. Krimstein
II-5
/s/ Mark H. Manski Director November 20, 1997
- -----------------------
Mark H. Manski
/s/ Clifford A. Miller Director November 20, 1997
- -----------------------
Clifford A. Miller
/s/ Geoffrey T. Moore Director November 20, 1997
- -----------------------
Geoffrey T. Moore
/s/ Martha A. Pritchard Director November 20, 1997
- -----------------------
Martha A. Pritchard
/s/ J. Richard Stonesifer Director November 20, 1997
- -------------------------
J. Richard Stonesifer
II-6
EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION
- ----------- -----------
4.1 - Certificate of Incorporation of the Company
(incorporated by reference to Exhibit 3.1 to the
Company's Annual Report on Form 10-K for the fiscal year
ended March 29, 1996).
4.2 - Certificate of Designation of Class A Convertible
Preferred Stock (incorporated by reference to Exhibit
10.4 to the Company's Quarterly Report on Form 10-0 for
the period ended October 12, 1996).
4.3 - Certificate of Designation of Class B Convertible
Preferred Stock (incorporated by reference to Exhibit
3.3 to the Company's Annual Report on Form 10-K for the
fiscal year ended March 29, 1997).
4.4 - By-Laws of the Company (incorporated by reference to
Exhibit 3.1 to the Company's Quarterly Report on Form
10-Q for the period ended October 12, 1996).
4.5 - The Grand Union Company 1995 Equity Incentive Plan.
4.6 - The Grand Union Company 1995 Non-Employee Directors'
Stock Option Plan.
5.1 - Opinion of Weil, Gotshal & Manges LLP.
23.1 - Consent of Price Waterhouse LLP.
23.2 - Consent of Weil, Gotshal & Manges LLP (included in
Exhibit 5.1).
24.1 - Power of Attorney (included as part of the signature
page to this Registration Statement and incorporated
herein by reference).