As filed with the Securities and Exchange Commission on May 10, 2005
Registration No. __________
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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Fred's, Inc.
(Exact name of Registrant, as specified in its charter)
Tennessee 62-1040440
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
4300 New Getwell Road
Memphis, Tennessee 38118
(Address of principal executive offices)
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Fred's, Inc. 2004 Employee Stock Purchase Plan
(Full title of the plan)
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Michael J. Hayes, Chief Executive Officer (With a copy to:)
Fred's, Inc. Sam D. Chafetz, Esq.
4300 New Getwell Road Baker, Donelson, Bearman, Caldwell
Memphis, Tennessee 38118 & Berkowitz, P.C.
(Name and address of agent for service) 165 Madison Avenue, 21st Floor
(901) 365-8880 Memphis, Tennessee 38103
Telephone number, including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Offering Registration
Registered Registered Per Share (1) Price(1) Fee
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Common Stock, no par value 1,000,000 shares $14.54 $14,540,000 $1,711.36
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(1) Estimated solely for the purpose of calculating the registration fee
and, pursuant to paragraphs (c) and (h) of Rule 457, based upon the
average high and low prices of such common stock on the Nasdaq Stock
Market on May 5, 2005, as reported on the Yahoo! Finance web site.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part I of this
Registration Statement on Form S-8 will be sent or given to the participant in
the plan as specified under Rule 428(b)(1) under the Securities Act of 1933, as
amended (the "Securities Act"). Such documents are not required to be, and are
not being, filed by Fred's, Inc. (the "Company") 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
under the Securities Act. Such documents, together with the documents
incorporated by reference herein pursuant to Item 3 of Part II of this
Registration Statement on Form S-8, constitute a prospectus that meets the
requirements of Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by the Company pursuant to the requirements
of the Securities Exchange Act of 1934 (the "Exchange Act") are incorporated by
reference into this Registration Statement:
(a) The Company's Annual Report on Form 10-K for the year ended January 29,
2005, filed on April 29, 2005;
(b) All other reports filed by the Company pursuant to Section 13(a) or
15(d) of the Exchange Act since the end of the fiscal year ended January 29,
2005;
(c) The description of the Company's Common Stock contained in its
Registration Statement on Form 10 filed with the Commission on May 15, 1991 as
updated by the description of the Registrant's preferred stock purchase rights
in the Registration Statement on Form 8-A filed on October 21, 1998.
All documents subsequently filed by the Company pursuant to Section 13(a),
13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-effective
amendment indicating that all securities offered by this Registration Statement
have been sold or that deregisters all securities then remaining unsold shall be
deemed to be incorporated by reference into this Registration Statement and to
be part thereof from the date of filing of such documents.
Any statement made 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 is also incorporated or deemed to
be incorporated by reference herein modifies or supersedes such statement. Any
such 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.
The legality of the common stock offered hereby has been opined by Baker,
Donelson, Bearman, Caldwell & Berkowitz, PC, counsel for the Company ("Baker
Donelson"), 165 Madison Ave., Suite 2000, Memphis, Tennessee 38103. Baker
Donelson was not employed on a contingent basis for its opinion, did not receive
a substantial interest, directly or indirectly, in the Company, or any parent or
subsidiary and was not and is not connected with the Company as a promoter,
managing underwriter, voting trustee, director, officer or employee.
Item 6. Indemnification of Directors and Officers.
The Company is incorporated under the laws of the State of Tennessee. The
Tennessee Business Corporation Act ("TBCA") provides that a corporation may
indemnify any director or officer made against liability incurred in connection
with a proceeding if (i) the director or officer was made a party to the
proceeding because of his or her capacity as such, (ii) the director or officer
acted in good faith, (iii) the director or officer reasonably believed, in the
case of conduct in his or her official capacity with the corporation, that such
conduct was in the corporation's best interests, and, in all other cases, that
his or her conduct was not opposed to the best interests of the corporation, and
(iv) the director or officer in connection with any criminal proceeding had no
reasonable cause to believe that his or her 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 is
adjudged to be liable to the corporation. Similarly, the TBCA prohibits
indemnification in connection with any proceeding charging improper personal
benefit to a director or officer, if such director or officer is adjudged liable
on the basis that a personal benefit was improperly received.
If a director or officer is wholly successful, on the merits or otherwise,
in the defense of a proceeding to which such officer or director was made a
party instigated because of his or her status as a director or officer of a
corporation, the TBCA requires that the corporation indemnify the director or
officer against reasonable expenses incurred in connection with the proceeding.
Notwithstanding the foregoing, the TBCA provides that a court of competent
jurisdiction, upon application, may order that a director or officer 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.
The Company's Charter provides in Article Seven that the Company shall
indemnify its directors to the full extent authorized or permitted by the TCBA.
Paragraphs 53 through 57 of the Company's By-laws extend such indemnification to
directors and to officers of the company, sets forth certain mechanics of
determinations to be made in connection with any requests for indemnification,
provides for advances of expenses, certain notices to shareholders, and the
non-exclusivity of those provisions.
The Company and its directors entered into an agreement in 1989 in
connection with the settlement of a legal proceeding, which contains
indemnification provisions similar to those contained in the Charter and
By-laws, but which sets forth with greater particularity matters in which
separate counsel for an indemnified party must be selected, the conditions under
which expenses may be paid in advance, and limitations on settlement of actions
subject to indemnification.
The Company maintains a policy of directors' and officers' liability
insurance that insures its directors and officers against the cost of defense,
settlement or payments of a judgment under some circumstances.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
Exhibit
Number Description
------- -----------
3.1 Certificate of Incorporation, as amended, incorporated
herein by reference to Exhibit 3.1 to the Registration
Statement on Form S-8 as filed with the Securities and
Exchange Commission ("SEC") on March 18, 2003 (SEC File No.
333-103904)(such registration statement, the "Form S-8")
3.2 Bylaws, incorporated herein by reference to Exhibit 3.2 to the
Form S-8
4.3 2004 Employee Stock Purchase Plan
5.1 Opinion and Consent of Baker, Donelson, Bearman, Caldwell &
Berkowitz, P.C.
23.1 Consent of Baker, Donelson, Bearman, Caldwell & Berkowitz,
P.C., contained in Exhibit 5.1
23.2 Consent of BDO Seidman, LLP
23.3 Consent of Ernst and Young LLP
24 Power of Attorney, included on signature page
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 the Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933 (the "Securities Act");
(ii) To reflect in the prospectus any facts or events arising after
the effective date of this 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 this
registration statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of the
securities offered would not exceed what was registered) and any deviation
from the low or high end of the estimated maximum offering range may be
reflected in the form of a prospectus filed with the Commission pursuant to
Rule 424(b) if, in the aggregate, the changes in volume and price represent
no more than a 20 percent change in the maximum aggregate offering price
set forth in the "Calculation of Registration Fee" table in the effective
registration statement;
(iii) 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;
provided, however, that sections (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 Securities Exchange Act of 1934 (the "Exchange Act") that are
incorporated by reference in this 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; 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
this 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 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 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 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.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe 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 Memphis, State of Tennessee on May 5, 2005.
FRED'S, INC.
By: /s/ Michal J. Hayes
------------------------------------
Michael J. Hayes
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Michael J. Hayes and Charles S. Vail, and each 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 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 attorneys-in-fact and agents full power and authority to do and
perform each and every act and thing requisite and necessary fully to all
intents and purposes as he might or could do in person thereby ratifying and
confirming all that said attorneys-in-fact and agents or any of them, or their
or his substitutes or substitute, 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 dates indicated.
Name Title Date
---- ----- ----
/s/ Michael J. Hayes Director, Chairman of the Board and May 5, 2005
------------------------------------ Chief Executive Officer
Michael J. Hayes
/s/ John D. Reier Director and President May 5, 2005
------------------------------------
John D. Reier
/s/ John R. Eisenman Director May 5, 2005
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John R. Eisenman
/s/ Roger T. Knox Director May 5, 2005
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Roger T. Knox
/s/ Thomas H. Tashjian Director May 5, 2005
------------------------------------
Thomas H. Tashjian
/s/ Mary McNabb Director May 5, 2005
------------------------------------
Mary McNabb
/s/ Gerald Thompson Director May 5, 2005
------------------------------------
Gerald Thompson
EXHIBIT INDEX
Exhibit
Number Description
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3.1 Certificate of Incorporation, as amended, incorporated
herein by reference to Exhibit 3.1 to the Registration
Statement on Form S-8 as filed with the Securities and
Exchange Commission ("SEC") on March 18, 2003 (SEC File No.
333-103904)(such registration statement, the "Form S-8")
3.2 Bylaws, incorporated herein by reference to Exhibit 3.2 to the
Form S-8
4.3 2004 Employee Stock Purchase Plan
5.1 Opinion and Consent of Baker, Donelson, Bearman, Caldwell &
Berkowitz, P.C.
23.1 Consent of Baker, Donelson, Bearman, Caldwell & Berkowitz, P.C.,
contained in Exhibit 5
23.2 Consent of BDO Seidman, LLP
23.3 Consent of Ernst and Young LLP
24 Power of Attorney, included on signature page
Exhibit 5.1
[Letterhead]
May 10, 2005
Fred's, Inc.
4300 New Getwell Road
Memphis, TN 38118
Re: Registration Statement on Form S-8
Gentlemen:
We have acted as counsel for Fred's, Inc., a Tennessee corporation (the
"Company"), in connection with the Registration Statement on Form S-8 (the
"Registration Statement") filed by the Company with the Securities and Exchange
Commission under the Securities Act of 1933, as amended, with respect to [one
million (1,000,000)] shares of the Company's common stock (the "Shares"),
issuable under the terms of the Company's 2004 Employee Stock Purchase Plan as
referenced in the Registration Statement (the "Plan").
In connection therewith, we have relied upon, among other things, our
examination of the Certificate of Incorporation and bylaws of the Company and
such other documents, records of the Company, and certificates of its officers
and public officials, as we have deemed necessary for purposes of the opinion
expressed below.
Based upon the foregoing, and having regard for such legal considerations
as we have deemed relevant, we are of the opinion that:
(i) The Company is duly incorporated, validly existing and in good
standing under the laws of the State of Tennessee; and
(ii) The Shares covered by the Registration Statement have been
duly authorized for issuance and, when issued pursuant to the
terms of the Plan, will be legally issued, fully paid and
nonassessable.
This opinion is furnished to you solely for your benefit in connection with
the filing of the Registration Statement and is not to be used, quoted or
otherwise referred to for any other purpose without our prior written consent.
We hereby consent to the filing of this opinion as Exhibit 5.1 to, and to the
use of our name in, the Registration Statement.
Very truly yours,
BAKER, DONELSON, BEARMAN,
CALDWELL & BERKOWITZ, PC
By: /s/ Sam D. Chafetz
------------------------------
Samuel D. Chafetz, Esq.
Exhibit 23.2
BDO Seidman, LLP Clark Tower
Accountants and Consultants 5100 Poplar Avenue, Suite 2600
Memphis, Tennessee 38137-2601
Telephone: (901) 680-7600
Fax: (901) 680-7601
Consent of Independent Registered Public Accounting Firm
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Fred's, Inc.
Memphis, Tennessee
We hereby consent to the incorporation by reference in the Registration
Statement on Form S-8 pertaining to the Fred's, Inc. 2004 Employee Stock
Purchase Plan of our reports dated April 15, 2005, relating to the consolidated
financial statements and financial statement schedule and the effectiveness of
Fred's, Inc.'s internal control over financial reporting appearing in the
Company's Annual Report on Form 10-K for the year ended January 29, 2005. Our
report dated April 15, 2005 on management's assessment of the effectiveness of
internal control over financial reporting and the effectiveness of internal
control over financial reporting as of January 29, 2005, expresses our opinion
that the Company did not maintain effective internal control over financial
reporting as of January 29, 2005 because of the effect of material weaknesses on
the achievement of the objectives of the control criteria.
BDO Seidman, LLP
Memphis Tennessee /s/ BDO Seidman, LLP
May 5, 2005
Exhibit 23.3
Consent of Independent Registered Public Accounting Firm
We consent to the incorporation by reference in the Registration Statement (Form
S-8 No. 333-00000) pertaining to the Fred's, Inc. 2004 Employee Stock Purchase
Plan of our report dated April 5, 2004, except for Note 2 as to which the dat
eis April 28, 2005, with respect to the consolidated financial statements and
schedule of Fred's, Inc. included in its Annual Report on Form 10-K for the year
ended January 29, 2005, filed with the Securities and Exchange Commission.
Memphis Tennessee /s/ Ernst & Young LLP
May 5, 2005