-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: keymaster@town.hall.org Originator-Key-Asymmetric: MFkwCgYEVQgBAQICAgADSwAwSAJBALeWW4xDV4i7+b6+UyPn5RtObb1cJ7VkACDq pKb9/DClgTKIm08lCfoilvi9Wl4SODbR1+1waHhiGmeZO8OdgLUCAwEAAQ== MIC-Info: RSA-MD5,RSA, gQNRLsAkK9Cj7LCtgbePdk7qvMuVtdweMNdB2aZijZk02yZo9eNDPysQFR/JKSgo 9REveu1t/18O0B3VcSDCvw== 0000950172-95-000009.txt : 19950110 0000950172-95-000009.hdr.sgml : 19950110 ACCESSION NUMBER: 0000950172-95-000009 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 1 FILED AS OF DATE: 19950109 SROS: NONE SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: NASH FINCH CO CENTRAL INDEX KEY: 0000069671 STANDARD INDUSTRIAL CLASSIFICATION: WHOLESALE-GROCERIES & RELATED PRODUCTS [5140] IRS NUMBER: 410431960 STATE OF INCORPORATION: DE FISCAL YEAR END: 1229 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-30449 FILM NUMBER: 95500681 BUSINESS ADDRESS: STREET 1: 7600 FRANCE AVE STREET 2: PO BOX 355 CITY: SOUTH MINNEAPOLIS STATE: MN ZIP: 55435-0355 BUSINESS PHONE: 6128320534 FORMER COMPANY: FORMER CONFORMED NAME: NASH CO DATE OF NAME CHANGE: 19710617 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: EMPIRE CO LTD CENTRAL INDEX KEY: 0000908931 STANDARD INDUSTRIAL CLASSIFICATION: UNKNOWN SIC - 0000 [0000] STATE OF INCORPORATION: A5 FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 115 KING ST CITY: STELLARTON NOVA SCOT STATE: A5 ZIP: 00000 MAIL ADDRESS: STREET 1: SKADDEN ARPS SLATE MEAGHER FLOM STREET 2: 1440 NEW YORK AVENUE NW CITY: WASHINGTON STATE: DC ZIP: 20008 SC 13D/A 1 SCHEDULE 13D AMENDMENT NO. 9 SECURITIES AND EXCHANGE COMMISSION WASHINGTON, DC 20549 SCHEDULE 13D Under the Securities Exchange Act of 1934 (Amendment No. 9) NASH FINCH COMPANY (Name of issuer) Common Stock, par value $1.66-2/3 per share (Title of class of securities) 631158102 (CUSIP number) Paul D. Sobey Empire Company Limited 115 King Street, Stallarton, Nova Scotia, Canada (Name, address and telephone number of person authorized to receive notices and communications) December 29, 1994 (Date of event which requires filing of this statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition which is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1 (b)(3) or (4), check the following box [ ]. Check the following box if a fee is being paid with the statement [ ]. (A fee is not required only if the reporting person: (1) has a previous statement on file reporting beneficial ownership of more than five percent of the class of securities described in Item 1; and (2) has filed no amendment subsequent thereto reporting beneficial ownership of five percent or less of such class.) (See Rule 13d-7) CUSIP No. 631158102 1 NAME OF REPORTING PERSONS S.S. OR I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS Empire Company Limited 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ] (b) [X] 3 SEC USE ONLY 4 SOURCE OF FUNDS* WC, BK 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e) [ ] 6 CITIZENSHIP OR PLACE OF ORGANIZATION Province of Nova Scotia, Canada 7 SOLE VOTING POWER NUMBER OF 599,851 SHARES BENEFICIALLY 8 SHARED VOTING POWER OWNED BY EACH REPORTING 9 SOLE DISPOSITIVE POWER PERSON WITH 599,851 10 SHARED DISPOSITIVE POWER - 0 - 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 599,851 12 CHECK BOX IF THE AGGREGATE AMOUNT IN BOX (11) EXCLUDES CERTAIN SHARES* [ ] 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 5.52% 14 TYPE OF REPORTING PERSON* CO This Amendment No. 9 amends, supplements and restates as of the date hereof the Schedule 13D (the "13D") filed on January 22, 1986, as amended by Amendment No. 1 thereto filed on September 19, 1986, Amendment No. 2 thereto filed on April 3, 1987, Amendment No. 3 thereto filed on June 17, 1987, Amendment No. 4 thereto filed on August 3, 1987, Amendment No. 5 thereto filed on August 8, 1988, Amendment No. 6 thereto filed on July 30, 1990, Amendment No. 7 thereto filed on February 20, 1992 and Amendment No. 8 thereto filed on June 7, 1993 by the undersigned with respect to the Common Stock, par value $1.66-2/3 per share, of Nash Finch Company. Item 1. Security and Issuer Item 1 of the Schedule 13D is hereby amended and restated as follows: This statement relates to the Common Stock (par value $1.66-2/3 per share) (the "Shares") of Nash Finch Company (the "Issuer"), a Delaware corporation. The address of the principal executive offices of the Issuer is 7600 France Avenue South, Minneapolis, Minnesota 55435. Item 2. Identity and Background Item 2 of the 13D is hereby amended and restated in its entirety as follows: (a) The name of the person filing this statement is Empire Company Limited ("Empire" or the "Reporting Person"), a corporation incorporated under the laws of the Province of Nova Scotia, Canada. The voting equity of Empire consists of Class B Common Shares, of which: (i) David F. Sobey beneficially owns 3,294,980 shares (18.3% of the class); (ii) Donald R. Sobey beneficially owns 3,294,980 shares (18.3% of the class); (iii) the estate of the late William M. Sobey beneficially owns 2,066,146 shares (13.7% of the class); (iv) F&I Investments Limited ("F&I"), a corporation incorporated under the laws of the Province of Nova Scotia, owns of record 2,066,146 shares (11.2% of the class). F&I is controlled by David F. Sobey and the Executors of the estate of the late William M. Sobey. David F. Sobey and Donald R. Sobey are brothers and are related to the Executors of the estate of William M. Sobey. Information as to each executive officer and director of Empire is set forth in Schedule A, attached hereto, which Schedule is incorporated herein by reference. All of the individuals referred to therein are citizens of Canada. (b) The address of the principal offices of Empire is 115 King Street, Stellarton, Nova Scotia. (c) Empire is a diversified Canadian company whose operations consist of four main segments: food distribution, real estate, retail drug store operations and other investments. The major components included in other investments are participation in oil and gas exploration and development, operations in the entertainment and leisure industries, insurance underwriting in the London market, ownership of a Canadian federally chartered trust company, as well as significant investments in a diversified portfolio of marketable securities. Attached hereto as Schedule A is the information required with respect to each of the directors and executive officers of Empire. (d) None of Empire, or to the best of its knowledge, any person named in Schedule A, attached hereto, has been convicted in any criminal proceeding during the last five years (excluding traffic violations or similar misdemeanors). (e) None of Empire, or to the best of its knowledge, any person named in Schedule A, attached hereto, has during the last five years, been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws. Item 3. Source and Amount of Funds or Other Considerations Item 3 of the 13D is hereby amended and restated as follows: As previously reported, funds for purchases by Empire were obtained from internally generated working capital and from lines of credit with the Bank of Nova Scotia. Item 4. Purpose of the Transaction Item 4 of the 13D is amended and restated as follows: The Shares purchased by the Reporting Person were acquired for and are being held by the Reporting Person for investment. As described in Item 5, the Reporting Person has disposed of a portion of its acquired Shares in open market transactions. Although the Reporting Person may, from time to time, dispose of additional Shares in the open market or privately negotiated transactions depending upon the market price of the Shares, money and stock market conditions, other opportunities available to the Reporting Person and future developments, the Reporting Person may (depending upon the same conditions) acquire additional Shares. Subject to the foregoing, at the present time, the Reporting Person has not formulated any plans or proposals of the type referred to in clauses (a) through (j) of Item 4 of Schedule 13D. Item 5. Interest in Securities of the Issuer Item 5 of the 13D is hereby amended and restated as follows: (a) Empire owns directly an aggregate of 599,851 Shares (representing 5.52% of the total number of Shares outstanding at November 18, 1994, according to the Issuer's Form 10-Q for the Forty Weeks Ended October 8, 1994). (b) Empire has the sole power to vote or direct the vote and the sole power to dispose or direct the disposition of such 599,851 Shares. (c) Transactions in Shares that were effected during the past sixty days by Empire are set forth below. All transactions were effected in the over-the-counter market. Sales of Nash Finch Common Stock Since October 31, 1994 Number Price Sale Date of Shares Per Share December 15, 1994 6,500 $16.00 December 22, 1994 5,000 $16.00 December 29, 1994 27,100 $16.00 December 30, 1994 10,000 $16.25 Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuers Item 6 of the 13D is hereby amended and restated as follows: There are no contracts, arrangements understandings or relationships (legal or otherwise) among Empire and any other person with respect to any securities of the Issuer, including, but not limited to, transfer of voting of any of the securities, finder's fees, joint ventures, loan or option arrangements, puts or calls, guarantees of profits, division of profit or loss, or the giving or holding of proxies. Item 7. Material to be Filed as Exhibits Exhibit A. Joint Reporting Agreement dated January 22, 1986 among Empire and the former other reporting persons. Exhibit B. Copy of Power of Attorney dated January 22, 1986 executed by Empire. Exhibit C. Line of credit to Empire from The Bank of Nova Scotia dated November 15, 1985. SIGNATURE After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct. Dated this 9th day of January, 1995. EMPIRE COMPANY LIMITED /s/ James W. Gogan By: James W. Gogan Title: President SCHEDULE A Executive Officers and Directors of Empire The names of the Directors and names and titles of the Executive Officers of Empire and their business addresses and present principal occupations are set forth below. If no address is given, the Director's or officer's business address is that of Empire. Unless otherwise indicated, each occupation set forth opposite an individual's name refers to Empire and each individual is a citizen of Canada. Name and Business Address Present Principal Occupation John C. Clark Chairman and Chief Suite 5110 Executive Officer 40 King Street West Tuckahoe Financial Toronto, Ontario Corporation Sir Graham Day Counsel, Stewart McKelvey P.O. Box 31 Sterling Sales Hansport, Nova Scotia Robert P. Dexter Partner, Stewart McKelvey Purdy's Wharf Tower One Sterling Sales Halifax, Nova Scotia Peter Godsoe* Deputy Chairman of the Board, 44 King Street West President and Chief Executive Toronto, Ontario Officer of The Bank of Nova Scotia James W. Gogan* President John N. Hagen Executive Vice President H. Gordon MacNeill* Chairman of the Board P.O. Box 43 Jannock Limited (Brick Toronto Dominion Centre Producer) Toronto, Ontario Elisabeth Parr-Johnston* President and Vice Chancellor 166 Bedford Highway Mount Saint Vincent University Halifax, Nova Scotia J. William Ritchie* Resident Director, Midland 1809 Barrington Street Walwyn Capital Inc. Halifax, Nova Scotia J. William Sinclair* Forestry Technician, Green Hill Department of Lands and Forests Pictou County, Nova Scotia Province of Nova Scotia Douglas B. Stewart President, Sobeys, Inc. David F. Sobey* Treasurer. Chairman and Chief Executive Officer of Sobeys Inc. Donald R. Sobey* Chairman Frank C. Sobey Vice Chairman Atlantic Shopping Centers Limited John R. Sobey * President, Retail Operations of Sobeys, Inc. Paul D. Sobey* Vice President and Secretary Chester D. Thompson Comptroller _________________________ * Director of Empire. EXHIBIT A JOINT REPORTING AGREEMENT In consideration of the mutual covenants herein contained, each of the parties hereto represents to and agrees with the other parties as follows: 1. Such party is eligible to file a statement on Schedule 13D pertaining to the Common Stock, par value $1.66- 2/3 per share, of Nash Finch Company, to which this agreement is an exhibit, for the filing of the information contained therein. 2. Such party is responsible for timely filing of such statement and any amendments thereto, and for the completeness and accuracy of the information concerning such party contained therein; provided that no such party is responsible for the completeness or accuracy of the information concerning the other parties making the filing, unless such party knows or has reason to believe that such information is inaccurate. 3. Such party agrees that such statement is filed by and on behalf of each such party and that any amendment thereto will be filed on behalf of each such party. This agreement may be executed in one or more counterparts, each of which shall be deemed to be an original instrument, but all of such counterparts together shall constitute but one agreement. Dated: January 22, 1986 EMPIRE COMPANY LIMITED By /s/ Donald R. Sobey Title: SOBEY LEASED PROPERTIES LIMITED By /s/ James W. Gogan Title: SOBEY STORES LIMITED By /s/ David S. Sobey Title: SUMAC CORPORATION LIMITED By /s/ Donald R. Sobey Title: PAULJAN LIMITED By /s/ Paul D. Sobey Title: DONALD R. SOBEY INVESTMENTS LIMITED By /s/ Donald R. Sobey Title: EXHIBIT B POWER OF ATTORNEY THE UNDERSIGNED hereby appoints each of Donald R. Sobey, James W. Gogan and Paul D. Sobey acting jointly or individually with full power of substitution in the premises as the attorney in fact of the undersigned to prepare, execute and file with the Securities and Exchange Commission on behalf of the undersigned amendments to the Statement on Schedule 13D relating to the stock of Nash Finch Company which any of the above named attorneys in fact shall, in his sole discretion, deem appropriate and hereby confirms any and all action taken by any of such attorneys pursuant to this Power of Attorney. EMPIRE COMPANY LIMITED By /s/ James W. Gogan By /s/ Paul D. Sobey Dated: January 22, 1986 EXHIBIT C SCOTIABANK THE BANK OF NOVA SCOTIA Foord Street, P.O. Box 1080 Stellarton, N.S. 80K 150 November 5, 1985 Mr. J.W. Gogan, President Empire Company Limited 115 King Street Stellarton, N.S. Dear Mr. Gogan: We are pleased to confirm that, subject to acceptance by you, The Bank of Nova Scotia (the "Bank") will make credit available on the terms set out below: BORROWER Empire Company Limited SUMMARY OF CREDIT $16,000,000 - Operating CURRENCY OPTIONS Canadian and/or United States (U.S.) Dollars, at the Borrower's option AVAILMENT OPTIONS To be availed of by direct advanced in Canadian and/or U.S. Dollars, and/or Bankers' Acceptances in Canadian Dollars, at the Borrower's option INTEREST RATES Interest on the outstanding principal Canadian Dollars amount and interest on overdue interest compounded monthly will be payable as well after as before demand for payment and/or judgment at the Bank's Prime lending rate from time to time. Interest on the outstanding principal U.S. Dollars amount and interest on overdue interest compounded monthly will be payable as well after as before demand for payment and /or judgment: i) at the Bank's U.S. Dollar Base Rate in Canada (BRCAN) from time to time; OR ii) at 1/2% per annum over the Bank's 1, 2, 3, 6 or 12 month (at the option of the Borrowed) London InterBank Eurodollar Offer (LIBO) Rate adjusted every 1, 2, 3, 6 or 12 months as the case may be thereafter ("Interest Adjustment Date") to a rate which is 1/2% per annum above the Bank's 1, 2, 3, 6 or 12 month (at the option of the Borrower) LIBO Rate, and so on from time to time; provided that the Borrower shall exercise the option at least two (2) business days prior to each Interest Adjustment Date and the rate set shall not be for a period which expires after the date on which the credit terminates. CALCULATION AND PAYMENT OF INTEREST Interest will be payable on the 22nd day of each month as calculated on each such day on the basis of: Canadian - a calendar year for the actual number of days elapsed when loans are drawn in Canadian funds; and United States - on the basis of a 360 day year for the actual number of days elapsed, the said rate based on a 360 day year is equivalent to a rate based on a calendar year of 365 days of 365/360 times the said rate when loans are drawn in United States funds based upon the Bank's U.S. Dollar Base Rate in Canada and, when based on the London Interbank Eurodollar Offer Rate, interest will be payable on Interest Adjustment Date but not less frequently than quarterly. ACCEPTANCE FEE An Acceptance Fee will be payable on the amount of each Banker's Acceptance at the time of acceptance of each draft calculated on the basis of a calendar year for the actual number of days elapsed from and including the date of acceptance to the due date of the draft at a rate equal to the Corporate Bankers' Acceptance Fee of the Bank at the time of acceptance (presently 1/2% per annum) with a minimum fee of $100 per transaction. TERMS OF BANKERS' ACCEPTANCES 30 - 180 days without grace ADVANCES The Borrower agrees: Canadian Dollars - that advances will be made to the Borrower (subject to the security as outlined) at this Branch on receipt of a Promissory Note for the amount of the advance; Indirect - to enter into a Bankers' Acceptance Agreement in form and substance satisfactory to the Bank; U.S. Dollars (BRCAN) - that advances will be made to the Borrower in same day funds on any business day (subject to the security as outlined) at this Branch on receipt of a Promissory Note for the amount of the advance. A "business day" is a day on which banks are open for business in Toronto, Ontario and Stellarton, Nova Scotia. U.S. Dollars (LIBOR) - that advances will be made to the Borrower (subject to the security as outlined) in same day funds upon prior notice of two (2) business days on receipt of a Promissory Note for the amount of the advance. A "business day" is a day on which banks are open for business in London, England; New York, U.S.A.; Toronto, Ontario and Stellarton, Nova Scotia. REPAYMENT The loans are to revolve from cash flow. NOTICE OF PAYMENTS & DRAWINGS The Borrower is to use its best efforts to provide the Bank with advance notice for individual large transactions of $5,000,000 or over, such as: when drawing down a demand loan; - when repaying a demand loan; - when switching from Bankers' Acceptances to demand loans; - when repaying a demand loan and borrowing by Bankers' Acceptances. SECURITY The following security, evidenced by documents in form satisfactory to the Bank, is to be provided: - Hypothecation of good quality stocks and bonds listed on a recognized stock exchange and having a minimum value of $5.00 per share (market value at September 18, 1985 - Cdn. Dollars $13,571,938, - Hypothecation of $137,600 shares of Halifax Developments Ltd. (market value as at September 18, 1985 $791,200); - Hypothecation of sundry private unlisted shares, estimated value $382,603. HELD IN SAFEKEEPING - 55,714 shares of the Toronto- Dominion Bank, market value $1,351,065, in negotiable form as evidence of good faith only. AFFIRMATIVE COVENANT Good Quality Readily Realisable Security, Schedule A Bank stocks held in safekeeping and 137,600 shares of Halifax Developments Ltd. to provide full cover for Operating loans at all times. RESERVE CLAUSE If any applicable law is interpreted by any Court or Gov- (U.S. Loans ernmental Agency charged with only) the interpretation thereof or is changed and the effect of such interpretation or change is to cause any reserve or special requirement against deposits in or other liabilities of, or loans by or other assets of the Bank to be imposed, modified or deemed applicable and the result is to increase the cost to the Bank of making or maintaining any advance hereunder, the Borrower is to pay to the Bank on demand additional amounts to compensate the Bank for such increased cost, but the Borrower is to have the right to prepay without fee the outstanding principal balance on any Interest Adjustment Date up to the amount on which the interest rate is to be adjusted on such date. REPORTING REQUIREMENTS The Borrower will provide the Bank with: - annual audited consolidated Financial Statements, to be submitted within 120 days of the April 30, 1986 fiscal year-end; - quarterly published Profit & Loss Statements, to be submitted within 60 days of each period-end. PERIODIC REVIEW The continuation of this credit is subject to periodic review and to no material adverse change occurring in the financial position of the Borrower. If the above terms and conditions are acceptable to you, we would appreciate your signing and returning to us the enclosed copy of this letter by the close of business on November 20, 1985, after which date this offer will lapse. Yours very truly, /s/ A.F. Ryan A. F. Ryan Manager Accepted by: EMPIRE COMPANY LIMITED /s/ James W. Gogan (Name) President (Title) November 12, 1985 (Date) -----END PRIVACY-ENHANCED MESSAGE-----