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As Filed With the Securities and Exchange Commission
on June 14, 1995
Registration No. 33-
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
SERVICE MERCHANDISE COMPANY, INC.
(Exact name of Registrant as specified in its charter)
TENNESSEE 62-0816060
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
SERVICE MERCHANDISE COMPANY, INC.
7100 SERVICE MERCHANDISE DRIVE 37027
BRENTWOOD, TENNESSEE (Zip Code)
(Address of Principal Executive Offices)
AMENDED AND RESTATED 1989 EMPLOYEE STOCK INCENTIVE PLAN
(Full title of the plan)
GLEN A. BODZY
VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY
SERVICE MERCHANDISE COMPANY, INC.
7100 SERVICE MERCHANDISE DRIVE
BRENTWOOD, TENNESSEE 37027
(Name and address of agent for service)
(615) 660-6000
(Telephone number, including area code, of agent for service)
Copy to:
JAMES H. CHEEK, III
BASS, BERRY & SIMS
2700 FIRST AMERICAN CENTER
NASHVILLE, TENNESSEE 37238
CALCULATION OF REGISTRATION FEE
- ----------------------------------------------------------------------------------------------------------------------
Proposed maximum Proposed maximum
Title of securities Amount to offering price aggregate offering Amount of
to be registered(1) be registered per share (1) price (1) registration fee
- ----------------------------------------------------------------------------------------------------------------------
Common Stock,
par value $.50 per share 4,990,000 shares $4.4375 $22,143,125 $7,635.56
======================================================================================================================
(1) The offering price is estimated solely for the purpose of determining the
amount of the registration fee. Such estimate has been calculated based on the
average of the high and low trading prices reported on the New York Stock
Exchange Composite Transactions tape for June 9, 1995 in accordance with Rule
457(c) and (h).
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PRIOR REGISTRATION OF SECURITIES UNDER THE 1989 EMPLOYEE STOCK INCENTIVE PLAN
8,437,500 shares of Common Stock, par value $.50 per share (the
"Common Stock"), after stock splits, of Service Merchandise Company, Inc., a
Tennessee corporation (the "Registrant"), that have been issued or are issuable
under the Registrant's 1989 Employee Stock Incentive Plan were registered on
the Registrant's Registration Statement on Form S-8 (Registration No.
33-30903).
PART II
INFORMATION REQUIRED IN THE REGISTRATION
STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents previously filed by Service Merchandise
Company, Inc., a Tennessee corporation (the "Registrant") with the Securities
and Exchange Commission (the "Commission") pursuant to the Securities Exchange
Act of 1934, as amended (the "Exchange Act") are incorporated herein by
reference:
(a) The Registrant's Annual Report on Form 10-K, as
amended, for the fiscal year ended January 1, 1995;
(b) The Registrant's Quarterly Report on Form 10-Q for
the fiscal periods ended April 2, 1995; and
(c) The description of the Registrant's Common Stock
contained in the Registrant's registration statement
on Form 8-A, as amended to date.
All documents and reports subsequently filed by the Registrant
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act prior to the
filing of a post-effective amendment to this Registration Statement which
indicates that all shares covered hereby have been sold or which deregisters
all such shares 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
None.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Tennessee Business Corporation Act ("TBCA") provides that a
corporation may indemnify any of the directors and officers against liability
incurred in connection with a proceeding if (i) such person acted in good
faith; (ii) in the case of conduct in an official capacity with the
corporation, he reasonably believed such conduct was in the corporation's best
interests; (iii) in all other cases, he reasonably believed that his conduct
was at least not opposed to the best interests of the corporation; and (iv) in
connection with any criminal proceeding, such person had no reasonable cause to
believe his conduct was unlawful. In actions brought by or in the right of the
corporation, however, the TBCA provides that no indemnification may be made if
the director or officer was adjudged to be liable to the corporation. The TBCA
also provides that in connection with any proceeding charging improper personal
benefit to an officer or director, no indemnification may be made if such
officer or director is
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adjudged liable on the basis that such personal benefit was improperly
received. Notwithstanding the foregoing, the TBCA provides that a court of
competent jurisdiction, unless the corporation's charter provides otherwise,
upon application, may order that an officer or director be indemnified for
reasonable expenses if, in consideration of all relevant circumstances, the
court determines that such individual is fairly and reasonably entitled to
indemnification, notwithstanding the fact that (i) such officer or director was
adjudged liable to the corporation in a proceeding by or in right of the
corporation; (ii) such officer or director was adjudged liable on the basis
that personal benefit was improperly received by him; or (iii) such officer or
director breached his duty of care to the corporation.
The Registrant's Restated Charter and Amended and Restated Bylaws
provide that no director shall be personally liable to the Registrant or its
shareholders for monetary damages for breach of any fiduciary duty as a
director except to the extent provided by the TBCA. Under the TBCA, this
provision relieves the Registrant's directors from personal liability arising
from a judgment or other final adjudication establishing (i) any breach of the
director's duty of loyalty, (ii) acts or commissions not in good faith or which
involve intentional misconduct or a knowing violation of law, or (iii) any
unlawful distributions. The Registrant has entered into indemnification
agreements with each of its directors and executive officers providing for
contractual rights of indemnification to the fullest extent permitted by
Tennessee law.
The foregoing statements contained within this Item 6 are subject to
the detailed provisions of the Tennessee Business Corporation Act, the
Registrant's Restated Charter and the Registrant's Bylaws referenced above.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
4.1 Amended and Restated 1989 Employee Stock Incentive Plan, as
amended through April 19, 1995.
4.2 Restated Charter of the Registrant (previously filed as
Exhibit 4.1 to the Registrant's Registration Statement on Form
S-8 filed on September 8, 1993 (Registration No. 33-50185)).
4.3 Amended and Restated Bylaws of the Registrant (previously
filed as Exhibit 3.2 to the Registrant's Quarterly Report on
Form 10-Q for the quarter ended March 31, 1989).
4.4 Shareholders Rights Agreement (incorporated by reference to
the Registrant's Current Report on Form 8-K dated February 8,
1988).
4.5 Amendment No. 1 to Shareholders Rights Agreement (incorporated
by reference to the Registrant's Current Report on Form 8-K
dated May 5, 1989).
4.6 Amendment No. 2 to Shareholders Rights Agreement (incorporated
by reference to Exhibit 4 the Registrant's Annual Report on
Form 10-K for the year ended January 1, 1995).
5 Opinion of Bass, Berry & Sims.
23.1 Consent of Bass, Berry & Sims (included in Exhibit 5).
23.2 Consent of Deloitte & Touche LLP.
24 Powers of Attorney (included at pages II-4 and II-5).
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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, as amended
(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 hereof) 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 information required to be included in a
post-effective amendment by those paragraphs is 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 purposes 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 (and each filing of the Plan's annual report
pursuant to 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 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
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, 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 Brentwood, State of
Tennessee, on the 13th day of June, 1995.
SERVICE MERCHANDISE COMPANY, INC.
By:/s/ Raymond Zimmerman
------------------------------------
Raymond Zimmerman
Chairman and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints Raymond Zimmerman and Glen A.
Bodzy, or either of them, his true and lawful attorney-in-fact and agent, with
full power of substitution and resubstitution, for him and in his name, place
and stead, in any and all capacities, to sign any and all amendments
(including, without limitation, post-effective 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 might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents or any of them, or their or his substitute or substitutes, 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 below by the following
persons in the capacities and on the dates indicated:
Signature Title Date
--------- ----- ----
/s/ Raymond Zimmerman Chairman, Chief Executive June 13, 1995
--------------------- Officer and Director
Raymond Zimmerman (Principal Executive
Officer)
/s/ Gary M. Witkin President, Chief Operating June 13, 1995
------------------------------- Officer and Director
Gary M. Witkin
/s/ S. Cusano Vice President, Chief June 13, 1995
------------------------------- Financial Officer
S. Cusano (Principal Financial and
Accounting Officer)
/s/ Richard P. Crane, Jr. Director June 13, 1995
-------------------------------
Richard P. Crane, Jr.
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/s/ R. Maynard Holt Director June 13, 1995
-------------------------------
R. Maynard Holt
/s/ Charles V. Moore Director June 13, 1995
-------------------------------
Charles V. Moore
/s/ James E. Poole Director June 13, 1995
-------------------------------
James E. Poole
/s/ Harold Roitenberg Director June 13, 1995
-------------------------------
Harold Roitenberg
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EXHIBIT INDEX
Exhibit
No Exhibit Description
------- -------------------
4.1 Amended and Restated 1989 Employee Stock Incentive Plan,
as amended through April 19, 1995.
4.2 Restated Charter of the Registrant (previously filed as
Exhibit 4.1 to the Registrant's Registration Statement
on Form S-8 filed on September 8, 1993 (Registration
No. 33- 50185)).
4.3 Amended and Restated Bylaws of the Registrant
(previously filed as Exhibit 3.2 to the Registrant's
Quarterly Report on Form 10-Q for the quarter ended
March 31, 1989).
4.4 Shareholders Rights Agreement (incorporated by reference
to the Registrant's Current Report on Form 8-K dated
February 8, 1988).
4.5 Amendment No. 1 to Shareholders Rights Agreement
(incorporated by reference to the Registrant's Current
Report on Form 8-K dated May 5, 1989).
4.6 Amendment No. 2 to Shareholders Rights Agreement
(incorporated by reference to Exhibit 4 to the
Registrant's Annual Report on Form 10-K for the year
ended January 1, 1995).
5. Opinion of Bass, Berry & Sims.
23.1 Consent of Bass, Berry & Sims (included in Exhibit 5).
23.2 Consent of Deloitte & Touche LLP.
24 Powers of Attorney (included at pages II-4 and II-5).