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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 7, 1994
Registration Statement No. 33-
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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
PUBLIX SUPER MARKETS, INC.
(Exact name of Registrant as specified in its charter)
FLORIDA 59-0324412
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
1936 GEORGE JENKINS BOULEVARD
LAKELAND, FLORIDA 33801
(813) 688-1188
(Address, including zip code,
of Registrant's principal executive offices)
PUBLIX SUPER MARKETS, INC.
401(k) SMART PLAN
(Full title of the plan)
S. KEITH BILLUPS, SECRETARY
PUBLIX SUPER MARKETS, INC.
1936 GEORGE JENKINS BOULEVARD
LAKELAND, FLORIDA 33801
(813) 688-1188
(Name, address, including zip code, and telephone number
including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
Title of Securities Amount to be Proposed Maximum Offering Price Proposed Maximum Aggregate Amount of
to be Registered(1) Registered(1) Per Share(2) Offering Price Registration Fee
Common Stock . . . . . . 10,000,000 shs. $13.00 $130,000,000 $26,000.00
(1) Pursuant to Rule 416(c), this Registration Statement also covers an
indeterminate amount of participations in the Publix Super Markets,
Inc. 401(k) SMART Plan.
(2) Estimated pursuant to Rule 457(c), solely for the purpose of
calculating the registration fee. Based upon the most recently
available appraisal of the fair market value of the common stock.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
By this reference, the following documents filed or to be filed by
Publix Super Markets, Inc. (the "Company") with the Securities and Exchange
Commission (the "Commission") are incorporated into and made a part of this
Registration Statement:
1. The Company's Annual Report on Form 10-K for the Year Ended
December 25, 1993, as filed with the Commission.
2. The Company's Quarterly Report on Form 10-Q for the Three
Months Ended March 26, 1994, as filed with the Commission.
3. The Company's Quarterly Report on Form 10-Q for the Six Months
Ended June 25, 1994, as filed with the Commission.
4. The description of the Company's Common Stock set forth on
Page 2 of the Company's Amendment on Form 8 dated September
15, 1992 (amending Item 14 of the Company's Registration
Statement on Form 10 dated April 28, 1965 describing the
Company's Common Stock).
5. The Annual Reports on Form 11-K filed with the Commission in
the future on behalf of the Company's 401(k) SMART Plan.
6. All documents filed by the Company with the Commission
subsequent to the date of this Registration Statement under
Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange
Act of 1934, 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, shall be deemed to be incorporated into and made a
part of this Registration Statement from the date of filing of
such documents with the Commission.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Florida Business Corporation Act, as amended (the "Florida Act"),
provides that, in general, a business corporation may indemnify any person who
is or was a party to any proceeding (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
or officer of the corporation, against liability incurred in connection with
such proceeding, including any appeal thereof, provided certain standards are
met, including that such officer or director 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 provided further that, with respect to any
criminal action or proceeding, the officer or director had no reasonable cause
to believe his or her conduct was unlawful. In the case of proceedings by or
in the right of the corporation, the Florida Act provides that, in general, a
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corporation may indemnify any person who was or is a party to any such
proceeding by reason of the fact that he or she is or was a director or officer
of the corporation against expenses and amounts paid in settlement actually and
reasonably incurred in connection with the defense or settlement of such
proceeding, including any appeal thereof, provided that such person 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, except that no
indemnification shall be made in respect of any claim as to which such person
is adjudged liable unless a court of competent jurisdiction determines upon
application that such person is fairly and reasonably entitled to indemnity.
To the extent that any officers or directors are successful on the merits or
otherwise in the defense of any of the proceedings described above, the Florida
Act provides that the corporation is required to indemnify such officers or
directors against expenses actually and reasonably incurred in connection
therewith. However, the Florida Act further provides that, in general,
indemnification or advancement of expenses shall not be made to or on behalf of
any officer or director if a judgment or other final adjudication establishes
that his or her actions, or omissions to act, were material to the cause of
action so adjudicated and constitute: (i) a violation of the criminal law,
unless the director or officer had reasonable cause to believe his or her
conduct was lawful or had no reasonable cause to believe it was unlawful; (ii)
a transaction from which the director or officer derived an improper personal
benefit; (iii) in the case of a director, a circumstance under which the
director has voted for or assented to a distribution made in violation of the
Florida Act or the corporation's articles of incorporation; or (iv) willful
misconduct or a conscious disregard for the best interests of the corporation
in a proceeding by or in the right of the corporation to procure a judgment in
its favor or in a proceeding by or in the right of a shareholder. Article IV
of the Company's By-laws provides that the Company shall indemnify any
director, officer or employee or any former director, officer or employee to
the full extent permitted by law.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
Exhibit
Number Description
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4.1 The Company's 401(k) SMART Plan
4.2 The Company's 401(k) SMART Trust Number 1
4.3 The Company's 401(k) SMART Trust Number 2
5.1 Opinion of Trenam, Simmons, Kemker, Scharf, Barkin, Frye & O'Neill, Professional Association, as to the
legality of the Common Stock being registered
5.2 The registrant hereby undertakes to submit the 401(k) SMART Plan to the Internal Revenue Service (the
"IRS") in a timely manner to obtain a determination letter from the IRS to the effect that such Plan is
"qualified" under Section 401 of the Internal Revenue Code and hereby undertakes to make all changes, if
any, required by the IRS in order to qualify such Plan.
23.1 Consent of Trenam, Simmons, Kemker, Scharf, Barkin, Frye & O'Neill, Professional Association (contained
in Exhibit 5)
23.2 Consent of KPMG Peat Marwick LLP, independent certified public accountants
24 Powers of Attorney (contained on signature page)
27 Financial Data Schedule (incorporated by reference - see Item 3).
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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;
(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; and
(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 by the registrant
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934
that are incorporated by reference in the registration statement.
(2) That, for purposes 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
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 13(a) or 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.
(h) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the provisions described in Item 6, 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 of 1933 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 of 1933 and will be
governed by the final adjudication of such issue.
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SIGNATURES
The Registrant. 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 Lakeland, State of Florida, on the
6th day of October, 1994.
PUBLIX SUPER MARKETS, INC.
By: /s/ Mark C. Hollis
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Mark C. Hollis, President
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each of the undersigned officers
and directors of Publix Super Markets, Inc. (the "Corporation"), a Florida
corporation, for himself or herself and not for one another, does hereby
constitute and appoint S. Keith Billups and Tina P. Johnson, and each of them,
a true and lawful attorney in his or her name, place and stead, in any and all
capacities, to sign his or her name to any and all amendments, including
post-effective amendments, to this registration statement with respect to the
proposed issuance, sale and delivery by the Corporation of shares of its Common
Stock, and to cause the same to be filed with the Securities and Exchange
Commission, granting unto said attorneys and each of them full power and
authority to do and perform any act and thing necessary and proper to be done
in the premises, as fully to all intents and purposes as the undersigned could
do if personally present, and each of the undersigned for himself or herself
hereby ratifies and confirms all that said attorneys or either of them shall
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 dates indicated.
SIGNATURE TITLE DATE
Chairman of the Board, Chief Executive Officer
and Director
/s/ Howard M. Jenkins (Principal Executive Officer) October 6, 1994
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Howard M. Jenkins
President, Chief Operating Officer and October 6, 1994
/s/ Mark C. Hollis Director
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Mark C. Hollis
Chairman of the Executive Committee and
/s/ Charles H. Jenkins, Jr. Director October 6, 1994
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Charles H. Jenkins, Jr.
/s/ Hoyt R. Barnett Executive Vice President and Director October 6, 1994
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Hoyt R. Barnett
Executive Vice President and Director
/s/ William H. Vass (Principal Financial Officer) October 6, 1994
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William H. Vass
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SIGNATURE TITLE DATE
Executive Vice President and Director
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W. Edwin Crenshaw
/s/ Tina P. Johnson Treasurer and Director October 6, 1994
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Tina P. Johnson
Director
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Carol Jenkins Barnett
Director
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Charles H. Jenkins, Sr.
Director
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E. V. McClurg
Controller
/s/ David P. Phillips (Principal Accounting Officer) October 6, 1994
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David P. Phillips
The Plan. Pursuant to the requirements of the Securities Act of 1933,
Publix Super Markets, Inc., in its capacity as administrator of the Publix
Super Markets, Inc. 401(k) SMART Plan (the employee benefit plan participations
in which are being registered under this registration statement), has duly
caused this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Lakeland, State of
Florida, on the 6th day of October, 1994.
PUBLIX SUPER MARKETS, INC.
401(k) SMART PLAN
By: PUBLIX SUPER MARKETS, INC.
(As Plan Administrator)
By: /s/ Mark C. Hollis
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Mark C. Hollis, President
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EXHIBIT INDEX
Exhibit
Number Description
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4.1 The Company's 401(k) SMART Plan
4.2 The Company's 401(k) SMART Trust Number 1
4.3 The Company's 401(k) SMART Trust Number 2
5.1 Opinion of Trenam, Simmons, Kemker, Scharf, Barkin,
Frye & O'Neill, Professional Association, as to the
legality of the Common Stock being registered
5.2 The registrant hereby undertakes to submit the 401(k)
SMART Plan to the Internal Revenue Service (the "IRS")
in a timely manner to obtain a determination letter
from the IRS to the effect that such Plan is "qualified"
under Section 401 of the Internal Revenue Code and
hereby undertakes to make all changes, if any, required
by the IRS in order to qualify such Plan.
23.1 Consent of Trenam, Simmons, Kemker, Scharf, Barkin,
Frye & O'Neill, Professional Association (contained in
Exhibit 5)
23.2 Consent of KPMG Peat Marwick LLP, independent certified
public accountants
24 Powers of Attorney (contained on signature page)
27 Financial Data Schedule (incorporated by reference - see
Item 3).