Amendment No. 5 to Schedule 13D

-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, UsipkdNryxINgnghuqXLVb2t3u1DyMhTU/pg2EvPF+JhyQ47kL6y7wFGHjCT85Hp spryJ81n/zCFUzxTsVG41w== 0001193125-04-174482.txt : 20041020 0001193125-04-174482.hdr.sgml : 20041020 20041020152956 ACCESSION NUMBER: 0001193125-04-174482 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 1 FILED AS OF DATE: 20041020 DATE AS OF CHANGE: 20041020 GROUP MEMBERS: FS & CO INTERNATIONAL, LP GROUP MEMBERS: FS CAPITAL PARTNERS LLC GROUP MEMBERS: FS CAPITAL PARTNERS, LP GROUP MEMBERS: FS EQUITY PARTNERS INTERNATIONAL, LP GROUP MEMBERS: FS EQUITY PARTNERS IV, LP GROUP MEMBERS: FS HOLDINGS, INC GROUP MEMBERS: FS INTERNATIONAL HOLDINGS LIMITED SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: PANTRY INC CENTRAL INDEX KEY: 0000915862 STANDARD INDUSTRIAL CLASSIFICATION: RETAIL-AUTO DEALERS & GASOLINE STATIONS [5500] IRS NUMBER: 561574463 STATE OF INCORPORATION: DE FISCAL YEAR END: 0930 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-56429 FILM NUMBER: 041087524 BUSINESS ADDRESS: STREET 1: 1801 DOUGLAS DR STREET 2: PO BOX 1410 CITY: SANFORD STATE: NC ZIP: 27330 BUSINESS PHONE: 9197746700 MAIL ADDRESS: STREET 1: 1801 DOUGLAS DR STREET 2: PO BOX 1410 CITY: SANFORD STATE: NC ZIP: 27330 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: FS EQUITY PARTNERS III LP CENTRAL INDEX KEY: 0000906706 STANDARD INDUSTRIAL CLASSIFICATION: UNKNOWN SIC - 0000 [0000] STATE OF INCORPORATION: CA FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 111000 SANTA MONICA BOULEVARD SUITE 1900 CITY: LOS ANGELES STATE: CA ZIP: 90025 BUSINESS PHONE: 310-444-1822 MAIL ADDRESS: STREET 1: 11100 SANTA MONICA BLVD STREET 2: SUITE 1900 CITY: LOS ANGELES STATE: CA ZIP: 90025 SC 13D/A 1 dsc13da.htm AMENDMENT NO. 5 TO SCHEDULE 13D Amendment No. 5 to Schedule 13D


OMB APPROVAL
OMB Number:		3235-0145
Expires:		December 31, 2005
Estimated average burden
hours per response . . . 15

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

SCHEDULE 13D

Under The Securities Exchange Act of 1934

(Amendment No. 5)*

THE PANTRY, INC.

(Name of Issuer)

Common Stock, $0.01 Par Value

(Title of Class of Securities)

698657 10 3

(CUSIP Number)

FS Equity Partners III, L.P.

FS Equity Partners International, L.P.

FS Equity Partners IV, L.P.

11100 Santa Monica Blvd.

Suite 1900

Los Angeles, California 90025

Attn: Charles P. Rullman

(310) 444-1822

(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications)

October 13, 2004

(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 that is the subject of this Schedule 13D, and is filing this schedule because of §§240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box. ¨

Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See §240.13d-7 for other parties to whom copies are to be sent.

The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.

The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).

Persons who respond to the collection of information contained in this form are not

required to respond unless the form displays a currently valid OMB control number.

CUSIP No. 698657 10 3


1.	Names of Reporting Persons. I.R.S. Identification Nos. of above persons (entities only). FS Equity Partners III, L.P.
2.	Check the Appropriate Box if a Member of a Group (See Instructions) (a) x (b) ¨
3.	SEC Use Only
4.	Source of Funds (See Instructions) OO
5.	Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)	¨
6.	Citizenship or Place of Organization Delaware

NUMBER OF

BENEFICIALLY

OWNED BY

EACH

REPORTING

PERSON

WITH

7. Sole Voting Power

8. Shared Voting Power

2,534,667

9. Sole Dispositive Power

10. Shared Dispositive Power

2,534,667


11.	Aggregate Amount Beneficially Owned by Each Reporting Person 2,534,667
12.	Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)	¨
13.	Percent of Class Represented by Amount in Row (11) Approximately 11.6%
14.	Type of Reporting Person (See Instructions) PN

Attention: Intentional misstatements or omissions of fact constitute Federal criminal violations (See 18 U.S.C. 1001)

CUSIP No. 698657 10 3


1.	Names of Reporting Persons. I.R.S. Identification Nos. of above persons (entities only). FS Capital Partners, L.P.
2.	Check the Appropriate Box if a Member of a Group (See Instructions) (a) x (b) ¨
3.	SEC Use Only
4.	Source of Funds (See Instructions) OO
5.	Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)	¨
6.	Citizenship or Place of Organization California

NUMBER OF

BENEFICIALLY

OWNED BY

EACH

REPORTING

PERSON

WITH

7. Sole Voting Power

8. Shared Voting Power

2,534,667

9. Sole Dispositive Power

10. Shared Dispositive Power

2,534,667


11.	Aggregate Amount Beneficially Owned by Each Reporting Person 2,534,667
12.	Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)	¨
13.	Percent of Class Represented by Amount in Row (11) Approximately 11.6%
14.	Type of Reporting Person (See Instructions) PN

CUSIP No. 698657 10 3


1.	Names of Reporting Persons. I.R.S. Identification Nos. of above persons (entities only). FS Holdings, Inc.
2.	Check the Appropriate Box if a Member of a Group (See Instructions) (a) x (b) ¨
3.	SEC Use Only
4.	Source of Funds (See Instructions) OO
5.	Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)	¨
6.	Citizenship or Place of Organization California

NUMBER OF

BENEFICIALLY

OWNED BY

EACH

REPORTING

PERSON

WITH

7. Sole Voting Power

8. Shared Voting Power

2,534,667

9. Sole Dispositive Power

10. Shared Dispositive Power

2,534,667


11.	Aggregate Amount Beneficially Owned by Each Reporting Person 2,534,667
12.	Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)	¨
13.	Percent of Class Represented by Amount in Row (11) Approximately 11.6%
14.	Type of Reporting Person (See Instructions) CO

CUSIP No. 698657 10 3


1.	Names of Reporting Persons. I.R.S. Identification Nos. of above persons (entities only). FS Equity Partners IV, L.P.
2.	Check the Appropriate Box if a Member of a Group (See Instructions) (a) x (b) ¨
3.	SEC Use Only
4.	Source of Funds (See Instructions) OO
5.	Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)	¨
6.	Citizenship or Place of Organization Delaware

NUMBER OF

BENEFICIALLY

OWNED BY

EACH

REPORTING

PERSON

WITH

7. Sole Voting Power

8. Shared Voting Power

1,247,691

9. Sole Dispositive Power

10. Shared Dispositive Power

1,247,691


11.	Aggregate Amount Beneficially Owned by Each Reporting Person 1,247,691
12.	Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)	¨
13.	Percent of Class Represented by Amount in Row (11) Approximately 5.7%
14.	Type of Reporting Person (See Instructions) PN

CUSIP No. 698657 10 3


1.	Names of Reporting Persons. I.R.S. Identification Nos. of above persons (entities only). FS Capital Partners LLC
2.	Check the Appropriate Box if a Member of a Group (See Instructions) (a) x (b) ¨
3.	SEC Use Only
4.	Source of Funds (See Instructions) OO
5.	Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)	¨
6.	Citizenship or Place of Organization Delaware

NUMBER OF

BENEFICIALLY

OWNED BY

EACH

REPORTING

PERSON

WITH

7. Sole Voting Power

8. Shared Voting Power

1,247,691

9. Sole Dispositive Power

10. Shared Dispositive Power

1,247,691


11.	Aggregate Amount Beneficially Owned by Each Reporting Person 1,247,691
12.	Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)	¨
13.	Percent of Class Represented by Amount in Row (11) Approximately 5.7%
14.	Type of Reporting Person (See Instructions) OO

CUSIP No. 698657 10 3


1.	Names of Reporting Persons. I.R.S. Identification Nos. of above persons (entities only). FS Equity Partners International, L.P.
2.	Check the Appropriate Box if a Member of a Group (See Instructions) (a) x (b) ¨
3.	SEC Use Only
4.	Source of Funds (See Instructions) OO
5.	Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)	¨
6.	Citizenship or Place of Organization Delaware

NUMBER OF

BENEFICIALLY

OWNED BY

EACH

REPORTING

PERSON

WITH

7. Sole Voting Power

8. Shared Voting Power

102,011

9. Sole Dispositive Power

10. Shared Dispositive Power

102,011


11.	Aggregate Amount Beneficially Owned by Each Reporting Person 102,011
12.	Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)	¨
13.	Percent of Class Represented by Amount in Row (11) Less than 1.0%
14.	Type of Reporting Person (See Instructions) PN

Attention: Intentional misstatements or omissions of fact constitute Federal criminal violations (See 18 U.S.C. 1001)

CUSIP No. 698657 10 3


1.	Names of Reporting Persons. I.R.S. Identification Nos. of above persons (entities only). FS&Co. International, L.P.
2.	Check the Appropriate Box if a Member of a Group (See Instructions) (a) x (b) ¨
3.	SEC Use Only
4.	Source of Funds (See Instructions) OO
5.	Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)	¨
6.	Citizenship or Place of Organization Cayman Islands

NUMBER OF

BENEFICIALLY

OWNED BY

EACH

REPORTING

PERSON

WITH

7. Sole Voting Power

8. Shared Voting Power

102,011

9. Sole Dispositive Power

10. Shared Dispositive Power

102,011


11.	Aggregate Amount Beneficially Owned by Each Reporting Person 102,011
12.	Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)	¨
13.	Percent of Class Represented by Amount in Row (11) Less than 1.0%
14.	Type of Reporting Person (See Instructions) PN

Attention: Intentional misstatements or omissions of fact constitute Federal criminal violations (See 18 U.S.C. 1001)

CUSIP No. 698657 10 3


1.	Names of Reporting Persons. I.R.S. Identification Nos. of above persons (entities only). FS International Holdings Limited
2.	Check the Appropriate Box if a Member of a Group (See Instructions) (a) x (b) ¨
3.	SEC Use Only
4.	Source of Funds (See Instructions) OO
5.	Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)	¨
6.	Citizenship or Place of Organization Cayman Islands

NUMBER OF

BENEFICIALLY

OWNED BY

EACH

REPORTING

PERSON

WITH

7. Sole Voting Power

8. Shared Voting Power

102,011

9. Sole Dispositive Power

10. Shared Dispositive Power

102,011


11.	Aggregate Amount Beneficially Owned by Each Reporting Person 102,011
12.	Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)	¨
13.	Percent of Class Represented by Amount in Row (11) Less than 1.0%
14.	Type of Reporting Person (See Instructions) OO

Attention: Intentional misstatements or omissions of fact constitute Federal criminal violations (See 18 U.S.C. 1001)

Item 1. Security and Issuer

This Amendment No. 5 (this “Amendment”) amends and supplements the statement on Schedule 13D filed with the Securities and Exchange Commission (the “Commission”) with respect to The Pantry, Inc., a Delaware corporation (the “Issuer”), on December 20, 1999 (the “Initial Filing”), Amendment No. 1 with respect thereto, as filed with the Commission on April 7, 2000, Amendment No. 2 with respect thereto, as filed with the Commission on December 4, 2002, Amendment No. 3 with respect thereto, as filed with the Commission on December 10, 2003 and Amendment No. 4 with respect thereto, as filed with the Commission on January 22, 2004 (the Initial Filing, as so amended, the “Schedule 13D”). All capitalized terms used in this Amendment and not otherwise defined herein have the meanings ascribed to such terms in the Schedule 13D. Only those items that are amended or supplemented are reported herein. Except as amended and supplemented herein, the Schedule 13D, including the definitions of terms not otherwise defined herein, remains in full force and effect.

Item 2. Identity and Background

No material change has occurred in the facts set forth in the response to this item of the Schedule 13D.

Item 3. Source and Amount of Funds or Other Consideration

N/A

Item 4. Purpose of Transaction

Item 4 of the Schedule 13D is hereby supplemented by adding the following paragraphs:

On October 13, 2004, a Purchase Agreement (“Purchase Agreement”) was entered into among the Issuer, Merrill Lynch International, Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated, each of the other underwriters named on Schedule A thereto (together, the “October ’04 Underwriters”) and FSEP III, FSEP IV and FS International (the “FS Selling Stockholders”), pursuant to which the October ’04 Underwriters agreed among other things, to purchase from the FS Selling Stockholders 3,500,000 shares of Issuer Common Stock (the “October ’04 Offered Securities”) in an underwritten public offering pursuant to the Registration Statement (the “October ’04 Initial Sale”). Included in the October ’04 Offered Securities are 2,283,854 shares of Issuer Common Stock to be sold by FSEP III, 1,124,229 shares of Issuer Common Stock to be sold by FSEP IV and 91,917 shares of Issuer Common Stock to be sold by FSEP International to the Underwriters at a per share price of $21.8694. The Underwriters resold the October ’04 Offered Securities to the public at a per share price of $22.96. The transaction closed on October 19, 2004.

Pursuant to the terms of the Purchase Agreement the FS Selling Stockholders also granted the October ’04 Underwriters a 30-day option to purchase, in whole or in part, an additional 750,000 shares of Issuer Common Stock (the “October ’04 Over-Allotment Option”) for the purpose of covering any over-allotments, which the Underwriters partially exercised as to 350,000 shares of Issuer Common Stock (the “October ’04 Over-Allotment Securities”) on

October 18, 2004 (collectively with the October ’04 Initial Sale, the “October ’04 Securities Sale”). Included in the October ’04 Over-Allotment Securities are 228,385 shares of Issuer Common Stock to be sold by FSEP III, 112,423 shares of Issuer Common Stock to be sold by FSEP IV and 9,192 shares of Issuer Common Stock to be sold by FSEP International to the Underwriters at a per share price of $21.8694. The October ’04 Underwriters have the right to exercise the October ’04 Over-Allotment Option, in whole or in part, to purchase up to an additional 400,000 shares of Issuer Common Stock through November 12, 2004.

Immediately following the consummation of the October ’04 Securities Sale (giving effect to the partial exercise of the October ’04 Over-Allotment Option by the Underwriters), the Filing Persons may, in the aggregate, be deemed to beneficially own 3,884,369 shares of Issuer Common Stock which includes 2,534,667 shares of Issuer Common Stock held by FSEP III, 1,247,691 shares of Issuer Common Stock held by FSEP IV and 102,011 shares of Issuer Common Stock held by FSEP International, which in the aggregate represent approximately 17.8% of the outstanding Issuer Common Stock as of September 28, 2004.

In addition, in connection with the transactions contemplated by the Purchase Agreement FSEP III, FSEP IV and FS International have entered into customary lock-up agreements pursuant to which FSEP III, FSEP IV and FS International have agreed that for a period of 90 days from October 13, 2004 they will not directly or indirectly offer, pledge, sell or otherwise transfer or dispose of any Issuer Common Stock or securities convertible or exchangeable or exercisable for Issuer Common Stock.

The October ’04 Securities Sale is more particularly described in, and the foregoing description is subject to, the actual terms and conditions set forth in the Purchase Agreement which is incorporated by reference from Current Report on Form 8-K of the Issuer filed with the Commission on October 14, 2004.

Item 5. Interest in the Securities of Issuer

Items 5(a)-(b) are hereby amended in their entirety as follows:

(a)-(b) The percentages of outstanding Issuer Common Stock reported in this Item 5(a) are based on the assumption that there are 21,771,757 shares of Issuer Common Stock outstanding (which assumes full physical settlement of the forward sale feature contained and described in the Purchase Agreement), as reported by the Issuer in the prospectus of the Issuer dated October 13, 2004 and filed with the Commission in accordance with Rule 424 of the Securities Act of 1933.

Upon the closing of the October ’04 Securities Sale on October 19, 2004 (giving effect to the partial exercise of the October ’04 Over-Allotment Option by the Underwriters), as of such date, the Filing Persons may, in the aggregate, be deemed to beneficially own 3,884,369 shares of Issuer Common Stock, which includes 2,534,667 shares of Issuer Common Stock held by FSEP III, 1,247,691 shares of Issuer Common Stock held by FSEP IV and 102,011 shares of Issuer Common Stock held by FSEP International, which in the aggregate represent approximately 17.8% of the outstanding shares of Issuer Common Stock. FSEP III, Capital Partners and Holdings disclaim beneficial ownership of the shares of Issuer Common Stock held by FSEP International and FSEP IV. FSEP International, FS&Co.

International and International Holdings disclaim beneficial ownership of the shares of Issuer Common Stock held by FSEP III and FSEP IV. FSEP IV and Capital Partners LLC disclaim beneficial ownership of the shares of Issuer Common Stock held by FSEP International and FSEP III.

The responses of the Filing Persons to Items (7) through (11) of the portions of the cover pages of this Schedule 13D which relate to the shares of Common Stock beneficially owned are herein incorporated by reference.

Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer

Other than as previously disclosed in the Schedule 13D or in Item 4 of this Amendment, there are no contracts, arrangements, understandings or relationships between the Filing Persons with respect to the securities of the Issuer.

Item 7. Material to Be Filed as Exhibits

Item 7 of the Schedule 13D is hereby supplemented by adding the following paragraphs:

Exhibit 7. Form of Purchase Agreement by and among the Issuer, Merrill Lynch International, Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated, each of the other underwriters named on Schedule A thereto, and FSEP III, FSEP IV and FS International, the form of which is incorporated by reference from Current Report on Form 8-K of the Issuer filed with the Commission on October 14, 2004.

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: October 20, 2004	FS EQUITY PARTNERS III, L.P.,
	a Delaware limited partnership

	By:	FS Capital Partners, L.P.
	Its:	General Partner

		By:	FS Holdings, Inc.
		Its:	General Partner

			By:	/s/ Charles P. Rullman
				Name: Charles P. Rullman
				Title: Vice President

	FS CAPITAL PARTNERS, L.P.,
	a California limited partnership

	By:	FS Holdings, Inc.
	Its:	General Partner

		By:	/s/ Charles P. Rullman
			Name: Charles P. Rullman
			Title: Vice President

	FS HOLDINGS, INC.,
	a California corporation

		By:	/s/ Charles P. Rullman
			Name: Charles P. Rullman
			Title: Vice President

	FS EQUITY PARTNERS INTERNATIONAL, L.P.,
	a Delaware limited partnership

	By:	FS&CO. International, L.P.
	Its:	General Partner

		By:	FS&Co. International Holdings Limited
		Its:	General Partner

			By:	/s/ Charles P. Rullman
				Name: Charles P. Rullman
				Title: Vice President


FS&CO. INTERNATIONAL, L.P.,
a Cayman Islands limited partnership

By:	FS International Holdings Limited
Its:	General Partner

	By:	/s/ Charles P. Rullman
		Name: Charles P. Rullman
		Title: Vice President

FS INTERNATIONAL HOLDINGS LIMITED,
a Cayman Islands exempt corporation

	By:	/s/ Charles P. Rullman
		Name: Charles P. Rullman
		Title: Vice President

FS EQUITY PARTNERS IV, L.P.,
a Delaware limited partnership

By:	FS Capital Partners LLC
Its:	General Partner

	By:	/s/ Charles P. Rullman
		Name: Charles P. Rullman
		Title: Vice President

FS CAPITAL PARTNERS LLC,
a Delaware limited liability company

	By:	/s/ Charles P. Rullman
		Name: Charles P. Rullman
		Title: Vice President

-----END PRIVACY-ENHANCED MESSAGE-----