S-3/A
1
As filed with the Securities and Exchange Commission on June 30,
1994
Registration No. 33-49620
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
AMENDMENT NO. 3
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Food Lion, Inc.
(Exact name of registrant as specified in its charter)
North Carolina 56-0660192
(State or other jurisdiction (I.R.S. Employer
of incorporation or Identification No.)
organization)
P.O. Box 1330
2110 Executive Drive
Salisbury, North Carolina 28145-1330
(704) 633-8250
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
Dan A. Boone
Vice President-Finance, Chief Financial Officer and Secretary
Food Lion, Inc.
P.O. Box 1330
2110 Executive Drive
Salisbury, North Carolina 28145-1330
(704) 633-8250
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copies to:
Bruce S. Mendelsohn, P.C.
Akin, Gump, Strauss, Hauer & Feld, L.L.P.
Suite 400
Washington, DC 20036
(202) 887-4446
Approximate date of commencement of the proposed sale to the
public:
From time to time after this Registration Statement becomes
effective as the registrant may determine.
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415
under the Securities Act of 1933, as amended, other than
securities offered only in connection with dividend or
reinvestment plans, check the following box: x
The registrant hereby amends this Registration Statement on
such date or dates as may be necessary to delay its effective
date until the registrant shall file a further amendment which
specifically states that this Registration Statement shall
thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the Registration Statement
shall become effective on such date as the Commission, acting
pursuant to said Section 8(a), may determine.
Pursuant to Rule 429 under the Securities Act of 1933, the
Prospectus contained in this Registration Statement relates also
to Registration Statement No. 33-40457 and may be used in
connection with such Registration Statement.
A REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED
WITH THE SECURITIES AND EXCHANGE COMMISSION BUT HAS NOT YET BECOME
EFFECTIVE. INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR
AMENDMENT. THESE SECURITIES MAY NOT BE SOLD NOR MAY OFFERS TO BUY BE
ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR
THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF
THESE SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR
SALE WOULD BE UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER
THE SECURITIES LAWS OF ANY SUCH STATE.
SUBJECT TO COMPLETION, DATED June 30, 1994
PROSPECTUS
$350,000,000
FOOD LION, INC.
Debt Securities
Warrants to Purchase Debt Securities
Food Lion, Inc. (the "Company") intends to issue
from time to time in one or more series its unsecured
debt securities ("Debt Securities") with an aggregate
initial public offering price or purchase price of up
to $350,000,000 or the equivalent thereof in one or
more foreign or composite currencies, including the
European Currency Unit ("ECU"). Debt Securities of
each series will be offered on terms to be determined
by market conditions. The Company may issue and sell
Debt Warrants to purchase Debt Securities on terms to
be determined at the time of sale. (The Debt
Securities and Debt Warrants are herein collectively
referred to as the "Securities.") Securities may be
sold for U.S. dollars or for one or more foreign or
composite currencies, and the principal of, premium, if
any, and any interest on Debt Securities may be payable
in U.S. dollars or in one or more foreign or composite
currencies. Debt Securities of a series will be
issuable as individual securities in registered form
without coupons. Debt Warrants will be issuable in
registered form and may be offered with the Debt
Securities or separately. A Prospectus Supplement
accompanying this Prospectus (a "Prospectus
Supplement") will set forth the specific designation,
aggregate principal amount, currency in which the
principal, premium, if any, and any interest are
payable, rate (or method of calculation) and time and
place of payment of any interest, authorized
denominations, maturity, offering price and any
redemption terms of the Debt Securities; the duration,
purchase price, exercise price, detachability and terms
of any Debt Warrants; and any other specific terms of
the Securities in respect of which this Prospectus is
being delivered.
The Securities may be sold by the Company
directly, through agents designated from time to time,
through dealers or one or more underwriters, or through
a syndicate of underwriters, managed by one or more
underwriters. If underwriters or agents are involved
in any offering of Securities, the names of the
underwriters or agents will be set forth in the
applicable Prospectus Supplement. If an underwriter,
agent or dealer is involved in any offering of
Securities, the underwriter's discount, agent's
commission or dealer's purchase price will be set forth
in, or may be calculated from the information set forth
in, the applicable Prospectus Supplement, and the net
proceeds to the Company from such offering will be the
public offering price of such securities less such
discount, in the case of an offering through an
underwriter, or the purchase price of such Securities
less such commission, in the case of an offering
through an agent, and less, in each case, the other
expenses of the Company associated with the issuance
and distribution of such Securities. See "Plan of
Distribution" for specific details.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED
BY THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE
SECURITIES COMMISSION NOR HAS THE COMMISSION OR ANY STATE
SECURITIES COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY
OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS
A CRIMINAL OFFENSE.
The date of this Prospectus is , 1994.
No dealer, salesman or other person has been authorized to
give any information or to make any representations other than
those contained or incorporated by reference in this Prospectus,
and, if given or made, such information or representations must
not be relied upon as having been authorized by the Company or
any underwriter or agent. Neither the delivery of this
Prospectus nor any sale made hereunder shall, under any
circumstances, create an implication that there has been no
change in the affairs of the Company since the date hereof. This
Prospectus does not constitute an offer to sell or a solicitation
of an offer to buy Securities in any jurisdiction to any person
to whom it is unlawful to make such offer or solicitation in such
jurisdiction.
AVAILABLE INFORMATION
The Company is subject to the information requirements of
the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and in accordance therewith files reports and other
information with the Securities and Exchange Commission (the
"Commission"). Reports, proxy statements and other information
filed by the Company with the Commission can be inspected and
copied at the public reference facilities maintained by the
Commission at Room 1024, 450 Fifth Street, N.W., Washington, D.C.
20549 and at the following Regional Offices of the commission:
New York Regional Office, 14th Floor, 75 Park Place, New York,
New York 10006 and Chicago Regional Office, Room 3190, 230 South
Dearborn Street, Chicago, Illinois 60604; and copies of such
material can be obtained from the Public Reference Section of the
Commission, 450 Fifth Street, N.W., Washington, D.C. 20549 at
prescribed rates. The Company is not required to, and does not,
provide annual reports to holders of its debt securities unless
specifically requested by such a holder.
The Company has filed with the Commission a registration
statement on Form S-3 (herein, together with all amendments and
exhibits, referred to as the "Registration Statement") under the
Securities Act of 1933, as amended (the "Securities Act"),
relating to the Securities. This Prospectus does not contain all
of the information set forth in the Registration Statement,
certain parts of which are omitted in accordance with the rules
and regulations of the Commission. For further information,
reference is hereby made to the Registration Statement.
INCORPORATION OF CERTAIN DOCUMENTS
The following documents filed with the Commission are
incorporated herein by reference: (i) the Company's Annual
Report on Form 10-K for the fiscal year ended January 1, 1994;
(ii) the Company's Form 8-K filed on January 7, 1994; and (iii)
the Company's Quarterly Report on Form 10-Q for the quarter ended
March 26, 1994. All documents filed by the Company pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after the
date hereof and prior to the termination of the offering of the
Securities shall be deemed to be incorporated herein and to be a
part hereof from the date of filing of such documents. Any
statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified
or superseded for purposes of this Prospectus to the extent that
a statement contained herein, in the accompanying Prospectus
Supplement or in any other subsequently filed document which also
is or is deemed to be incorporated by reference herein modifies
or supersedes such statement. Any statement so modified or
superseded shall not be deemed, except as so modified or
superseded, to constitute part of this Prospectus.
The Company will furnish without charge to each person to
whom this Prospectus is delivered, upon request, a copy of any or
all of the documents described above, other than exhibits to such
documents which are not specifically incorporated by reference in
such documents. Written or telephone requests should be directed
to Mr. Dan A. Boone, Vice President-Finance, Chief Financial
Officer and Secretary, Food Lion, Inc., 2110 Executive Drive,
P.O. Box 1330, Salisbury, North Carolina 28145-1330, (704) 633-
8250.
References herein to "U.S. dollars," "dollars" or "$" are to
the lawful currency of the United States.
THE COMPANY
General
The Company operates food supermarkets primarily in the
southeastern and parts of the southwestern United States. The
Company's stores, which are operated under the name "Food Lion,"
sell a wide variety of groceries, produce, meats, dairy products,
seafood, frozen food, deli/bakery and non-food items such as
tobacco, health and beauty aids and other household and personal
products. Food Lion currently operates deli-bakery departments
in approximately 50% of its stores. Deli/bakeries are included
in approximately 80% of new store openings. Deli/bakeries are
added to existing stores after research indicates a customer
demand for such products. The Company offers nationally and
regionally advertised brand name merchandise as well as products
manufactured and packaged for the Company under the private label
"Food Lion." The Company has a policy of selling merchandise at
low item prices in order to increase volume without a
proportionate increase in fixed and operating expenses.
As of March 26, 1994, the Company operated a total of 1,048
supermarkets in 14 states:
State Number State Number
of of
Stores Stores
North Carolina 359 Oklahoma 12
Virginia 218 Maryland 21
Florida 110 Kentucky 12
South Carolina 97 West Virginia 13
Texas 67 Delaware 6
Tennessee 70 Louisiana 5
Georgia 51 Pennsylvania 7
The size of the Company's supermarkets averages 26,345
square feet and ranges from 15,600 square feet to 38,800 square
feet. All of the Company's supermarkets are self-service, cash
and carry stores which have off-street parking. The Company's
supermarkets are served by the Company's nine warehousing and
distribution facilities located in Salisbury and Dunn, North
Carolina; Prince George County, Virginia; Elloree, South
Carolina; Green Cove Springs and Plant City, Florida; Clinton,
Tennessee; Greencastle, Pennsylvania; and Roanoke, Texas.
An ever increasing base of existing stores makes it unlikely
that the Company will be able to consistently achieve growth
rates that it has experienced historically. Other factors that
may affect the Company's future growth include the Company's
ability to open and operate profitable stores and to project and
control capital-related expenditures. Acceptance of the
Company's merchandising strategies by customers located in new
markets, or the Company's ability to adapt its merchandising
strategies to generate increased revenues in new markets, also
will affect the Company's future growth.
The Company was incorporated in North Carolina in 1957 and
maintains its principal executive offices at 2110 Executive
Drive, Post Office Box 1330, Salisbury, North Carolina 28145-
1330, and its telephone number is (704) 633-8250.
Recent Developments
On November 5, 1992, ABC Television's PrimeTime Live
accused the Company of improper food handling and sanitation
practices . Subsequent to the story, same store sales - sales for
stores open in comparable periods - declined 9.5% in November of
1992. Same store sales improved steadily during 1993 and the
first two quarters of 1994, and sales for the Company have now
recovered to pre-PrimeTime Live levels. Gross profit has also
improved each quarter since the story's broadcast. Selling and
administrative expenses as a percent of sales are still
approximately 10 % higher than they were before the broadcast
due, in part, to increases in advertising, legal and public
relation costs associated with addressing continuing tatics from
the United Food and Commercial Workers Union International's
"Corporate Campaign" to discredit or damage the Company's
credibility and for ongoing strategic efforts to strengthen
customer relations. Although the Company continued to experience
pressure on expenses during the first two quarters of 1994, the
Compnay anticipates that expenses as a percent of sales should
decline during the remainder of 1994. During the second quarter
of 1994, the Food & Drug Administration awarded the Company's a
rating of "excellent" based on an in-depth survey of food safety
and sanitation of Food Lion stores.
USE OF PROCEEDS
The Company intends to use the net proceeds from the sale of
the Securities for general corporate purposes, which may include
capital expenditures and the repayment of existing debt.
SELECTED FINANCIAL DATA
The following selected financial data for the five year
period ended January 1, 1994 are derived from the financial
statements of the Company, which have been audited by Coopers &
Lybrand, independent accountants. The financial data for the 12
weeks ended March 26, 1994 and March 27, 1993 are derived from
the unaudited financial statements of the Company and, in the
opinion of management of the Company, include all adjustments
consisting of normal recurring accruals necessary to reflect
fairly the data for such periods. Results for the 12 weeks ended
March 26, 1994 are not necessarily indicative of the results for
the 1994 fiscal year. The data should be read in conjunction
with the financial statements, related notes and other financial
information incorporated by reference herein.
12 Weeks Ended Years Ended
3/26 3/27 1/1 1/2 12/28 12/29 12/30
Statement of Income Data 1994 1993 1994 1993 1991(1) 1990(1) 1989
(in millions except
per share data
and ratios)
Net sales $1,804 $1,657 $7,610 $7,196 $6,439 $5,584 $4,717
Gross profit 363 316 1,489 1,436 1,336 1,137 945
Income before income 51 36 6 291 341 284 230
taxes (4)
Provision for income 20 14 2 113 136 112 91
taxes
Net income(4) 31 22 4 178 205 173 140
Earnings per share(2)(4) 0.06 0.05 0.01 0.37 0.42 0.36 0.29
Ratio of earnings to
fixed charges(3) 2.2 1.8 1.0 2.8 3.5 3.4 3.3
Balance Sheet Data
(in millions)
Total assets $2,472 $2,470 $2,504 $2,521 $2,019 $1,580 $1,282
Long-term debt,
excluding current
portions 569 241 569 241 247 98 100
Capital lease oblig.
excluding
current portion 289 254 302 246 195 154 95
Deferred taxes and
deferred
compensation 37 88 37 86 69 36 37
Shareholders' equity 938 967 918 956 831 673 538
(1) Restated to give effect to the Company's adoption of SFAS
No. 109, "Accounting for Income Taxes." See Note 8 of Notes
to Financial Statements incorporated herein by reference.
(2) Earnings per share have been restated where appropriate to
reflect a three-for-two stock split effected in the form of
a 50% stock dividend on June 8, 1992.
(3) For the purposes of calculating this ratio, earnings consist
of income before provision for income taxes and fixed
charges. Fixed charges consist of interest on all
indebtedness and total base rent payments.
(4) Year ended 1/1/94 includes store closing charge of
$170.5 million pre-tax and $104 million after tax.
DESCRIPTION OF DEBT SECURITIES
The Debt Securities are to be issued under an Indenture
dated as of August 15, 1991, and any indentures supplemental
thereto (collectively, the "Indenture"), between the Company and
The Bank of New York, as Trustee (the "Trustee"). The following
statements with respect to the Debt Securities are summaries of
the detailed provisions of the Indenture, a copy of which is
filed as an exhibit to the Registration Statement. References in
italics are to sections of the Indenture. Wherever particular
provisions of the Indenture are referred to, such provisions are
incorporated by reference as a part of the statements made, and
the statements are qualified in their entirety by such reference.
As used under this caption, the term "Debt Securities" includes
the debt securities being offered by this Prospectus and all
other debt securities issued from time to time by the Company
under the Indenture.
General
The Debt Securities will be unsecured obligations of the
Company, ranking equally with all other unsecured and
unsubordinated Indebtedness of the Company. Reference is made to
the Prospectus Supplement for the terms of the series of Debt
Securities being offered thereby, including, where applicable:
(i) the title of such Debt Securities; (ii) the limit, if any,
upon the aggregate principal amount of such Debt Securities;
(iii) the date or dates on which the principal and premium, if
any, of such Debt Securities are payable; (iv) the rate or rates,
or the method of determination thereof, at which such Debt
Securities will bear interest, if any; the date or dates from
which such interest will accrue; the interest payment dates on
which such interest will be payable and the record dates for the
interest payable on such interest payment dates; (v) whether such
Debt Securities are to be issued as Original Issue Discount
Securities (as defined below) and the amount of discount with
which such Debt Securities will be issued; (vi) the place or
places where the principal of, and premium, if any, and any
interest on such Debt Securities will be payable; (vii) the price
or prices at which, the period or periods within which and the
terms and conditions upon which such Debt Securities may be
redeemed in whole or in part, at the option of the Company,
pursuant to any sinking fund or otherwise; (viii) the obligation,
if any, of the Company to redeem or purchase such Debt Securities
pursuant to any sinking fund or analogous provisions or at the
option of a Holder and the price or prices at which and the
period or periods within which and the terms and conditions upon
which such Debt Securities will be redeemed, purchased or
repaid, in whole or in part, pursuant to such obligation; (ix) if
other than denominations of $1,000 and any integral multiple
thereof, the denominations in which such Debt Securities will be
issuable; (x) if other than the principal amount, the portion of
the principal amount of such Debt Securities which will be
payable upon declaration of acceleration of the maturity thereon
pursuant to the Indenture; (xi) if other than U.S. dollars, the
coin, currency or currencies in which payment of the principal
(and premium, if any) and interest, if any, on such Debt
Securities will be payable; (xii) if the principal (and premium,
if any) or interest, if any, on such Debt Securities are to be
payable, at the election of the Company or a Holder, in a coin,
currency, or currencies other than that in which the Debt
Securities are stated to be payable, the period or periods within
which, and the terms and conditions upon which, such election may
be made; (xiii) if the amount of payments of principal (and
premium, if any) or interest, if any, on such Debt Securities may
be determined with reference to an index based on a coin or
currency other than that in which the Debt Securities are stated
to be payable, the manner in which such amount will be
determined; (xiv) any additional Events of Default provided for
with respect to such Debt Securities; (xv) provisions, if any,
for the defeasance of such Debt Securities; and (xvi) any other
terms of such Debt Securities not inconsistent with the
provisions of the Indenture. (Section 2.02)
If the principal of (and premium, if any) or any interest on
Debt Securities of any series are payable in a foreign or
composite currency, the restrictions, elections, federal income
tax consequences, specific terms and other information with
respect to such Debt Securities and such currency will be
described in the Prospectus Supplement relating thereto.
One or more series of Debt Securities may be sold at a
discount below their stated principal amount bearing no interest
or interest at a rate that at the time of issuance is below
market rates ("Original Issue Discount Securities"). One or more
series of Debt Securities may be variable rate debt securities
that may be exchangeable for fixed rate debt securities. Federal
income tax consequences and other special considerations
applicable to any such series will be described in the Prospectus
Supplement relating thereto.
Unless otherwise provided in the applicable Prospectus
Supplement, the principal of (and premium, if any) and any
interest on Debt Securities will be payable at the principal
corporate trust office of the Trustee at 101 Barclay Street, 21st
Floor, New York, New York 10286; provided, however, that payment
of interest on Debt Securities may be made at the option of the
Company by check mailed to the Holders thereof. (Sections 2.02
and 4.01)
Unless otherwise provided in the applicable Prospectus
Supplement, Debt Securities may be transferred or exchanged at
the office or agency maintained by the Company for such purpose,
subject to the limitations provided in the Indenture, without the
payment of any service charge, other than any tax or governmental
charge payable in connection therewith. (Section 2.05)
All moneys paid by the Company to the Trustee for the
payment of principal of (and premium, if any) or any interest on
any Debt Security that remains unclaimed by the Holder of such
Debt Security at the end of two years after such principal,
premium or interest shall have become due and payable will be
repaid by the Trustee to the Company on demand, and such Holder
will thereafter look only to the Company for payment thereof.
(Section 12.05)
The Indenture contains no covenants or other provisions to
afford protection to holders of the Securities in the event of a
highly leveraged transaction or a change in control of the
Company, except to the limited extent described under "Certain
Covenants of the Company Under the Indenture -- Merger, Sale,
Lease, etc." below. In the event such protective covenants or
provisions are added at a later time, they will be described in
the applicable Prospectus Supplement.
Global Debt Securities
The Debt Securities of a series may be issued in the form of
one or more Global Securities that will be deposited with a
Depositary or its nominee identified in the applicable Prospectus
Supplement. In such a case, one or more Global Securities will
be issued in a denomination or aggregate denominations equal to
the portion of the aggregate principal amount of outstanding Debt
Securities of the series to be represented by such Global
Security or Securities. Unless and until it is exchangeable in
whole or in part for Debt Securities in definitive registered
form, a Global Security may not be registered for transfer or
exchange except as a whole by the Depositary for such Global
Security to a nominee of such Depositary and except in the
circumstances described in the applicable Prospectus Supplement.
(Section 2.03)
The specific terms of the depositary arrangement with
respect to any portion of a series of Debt Securities to be
represented by a Global Security will be described in the
applicable Prospectus Supplement.
Certain Covenants of the Company Under the Indenture
The Indenture contains certain covenants described below
which are applicable to the Company with respect to any and all
series of Debt Securities issued thereunder. Specific covenants,
if any, peculiar to a particular series of Debt Securities to be
offered hereby will be described in the Prospectus Supplement
relating thereto.
Restrictions on Liens. The Indenture provides that the
Company will not, and will not permit any subsidiary to issue,
assume or guarantee any debt for money borrowed (herein referred
to as "Indebtedness") if such Indebtedness is secured by any
mortgage, deed of trust, security interest, pledge, lien or other
encumbrance (herein referred to as a "mortgage") upon any
Operating Property (as defined in the Indenture) of the Company
or of any subsidiary or any shares of stock or Indebtedness of
any subsidiary, whether owned at the date of the Indenture or
thereafter acquired, without effectively securing the Debt
Securities equally and ratably with such Indebtedness. The
foregoing restriction does not apply to (i) mortgages on any
property acquired, constructed or improved by the Company or any
subsidiary after the date of the Indenture, which are created or
assumed within 36 months after such acquisition or the completion
of such construction or improvement (or within six months
thereafter pursuant to a firm commitment for financing
arrangements entered into within such 36 month period) to secure
or provide for the payment of the purchase price or cost thereof,
or mortgages existing on any property at the time of its
acquisition; (ii) mortgages existing on any property acquired
from a corporation merged with or into the Company or a
subsidiary; (iii) mortgages on property of any corporation
existing at the time it becomes a subsidiary; (iv) mortgages to
secure Indebtedness of a subsidiary to the Company or to another
subsidiary; (v) mortgages in favor of governmental bodies to
secure partial progress, advance or other payments pursuant to
any contract or statute or to secure Indebtedness incurred to
finance the purchase price or cost of constructing or improving
the property subject to such mortgages; or (vi) mortgages for
extending, renewing or replacing Indebtedness secured by any
mortgage referred to in the foregoing clauses (i) to (v),
inclusive, or in this clause (vi). The foregoing restriction
does not apply to the issuance, assumption or guarantee by the
Company or any subsidiary of Indebtedness secured by a mortgage
which would otherwise be subject to the foregoing restriction up
to an aggregate amount which, together with all other secured
Indebtedness of the Company and its subsidiaries (not including
secured Indebtedness permitted under the foregoing exceptions)
and the Value (as defined in the Indenture) of Sale and Lease-
back Transactions (as defined in the Indenture) existing at such
time (other than any Sale and Lease-back Transaction the proceeds
of which have been applied to the retirement of certain long-term
Indebtedness or to the purchase of other Operating Property
within two years after such Sale and Lease-back Transaction, and
other than any Sale and Lease-back Transaction in which the
property involved would have been permitted to be mortgaged under
clause (i) above), does not exceed 8% of Consolidated
Capitalization (as defined in the Indenture). (Section 4.11)
Restrictions on Sale and Lease-back Transactions. Sale and
Lease-back transactions by the Company or any subsidiary of any
Operating Property are prohibited (except for temporary leases
for a term, including renewals, of not more than 36 months and
except for leases between the Company and a subsidiary or between
subsidiaries) unless:
(i) the net proceeds of such Sale and Lease-back
Transaction are at least equal to a percentage of the sum of all
costs incurred by the Company in connection with the acquisition
of, and construction of any improvement on, the Operating
Property to be leased, such percentage to be determined as
follows:
(A) if the Sale and Lease-back Transaction occurs
within 36 months following completion of the construction of the
principal improvement on the Operating Property to be leased,
then such percentage shall be 100%;
(B) if the Sale and Lease-back Transaction occurs
between 37 months and 60 months following completion of the
construction of the principal improvement on the Operating
Property to be leased, then such percentage shall be 95%; or
(C) if the Sale and Lease-back Transaction occurs
after 60 months following completion of the construction of the
principal improvement on the Operating Property to be leased,
then such percentage shall be 90%; and
(ii) either (A) the Company or such subsidiary would be
entitled to incur Indebtedness secured by a mortgage on the
property to be leased without securing the Debt Securities,
pursuant to clause (i) under "Restrictions on Liens" or (B) the
Value thereof would be an amount permitted under the last
sentence under "Restrictions on Liens" or (C) the Company applies
an amount equal to the sum of all costs incurred by the Company
in connection with the acquisition of, and the construction of
any improvements on, such property (x) to the payment or other
retirement of certain Indebtedness of the Company or a subsidiary
or (y) to the purchase of Operating Property (other than that
involved in such Sale and Lease-back Transaction). (Section
4.12)
Merger, Sale, Lease, etc. The Indenture provides that the
Company will not merge into any other corporation or sell,
convey, transfer or lease its properties and assets substantially
as an entirety to any person other than a subsidiary, unless the
successor corporation or person that acquires all or
substantially all the assets of the Company shall expressly
assume all obligations of the Company under the Indenture and the
Debt Securities issued thereunder, and, immediately after such
transaction, the Company, such person or such successor
corporation shall not be in default in the performance of the
covenants and conditions of the Indenture to be performed or
observed by the Company. (Section 11.01)
Other Covenants. The Indenture contains other covenants
applicable to all series of Debt Securities issued thereunder,
including covenants respecting the payment of taxes, maintenance
of properties and other matters. (Article Four)
Definitions (Section 101)
The term "Consolidated Capitalization" is defined to mean
the total of all the assets appearing on the Consolidated Balance
Sheets of the Company and its subsidiaries, less the following:
(1) current liabilities and (2) deferred income taxes.
The term "Indebtedness" is defined to mean all indebtedness
of the Company for money borrowed.
The term "Nonrecourse Indebtedness" is defined to mean that
portion of secured Indebtedness which, on the date such secured
Indebtedness becomes due by acceleration or at its stated
maturity, is less than or equal to the value of the collateral
securing such Indebtedness.
The term "Operating Property" is defined to mean any
manufacturing or processing plant, office facility, retail store,
warehouse, distribution center or equipment located within the
United States of America or its territories or possessions and
owned and operated now or hereafter by the Company or any
subsidiary and having a net book value on the date as of which
the determination is being made of more than 1.0% of Consolidated
Capitalization. As of the date of this Prospectus, none of the
Company's supermarkets constituted an Operating Property.
The term "Sale and Lease-back Transaction" shall mean any
arrangement with any person providing for the leasing to the
Company or any subsidiary of any Operating Property (except for
temporary leases for a term, including any renewal thereof, of
not more than 48 months and except for leases between the Company
and a subsidiary or between subsidiaries), which Operating
Property has been or is to be sold or transferred by the Company
or such subsidiary to such person.
The term "Value" is defined to mean, with respect to a Sale
and Lease-back Transaction, as of any particular time, the amount
equal to the greater of (i) the net proceeds from the sale or
transfer of the property leased pursuant to such Sale and Lease-
back Transaction or (ii) the sum of all costs of the Company
incurred in connection with the acquisition of such property and
the construction of any improvements thereon, as determined in
good faith by the Company at the time of entering into such Sale
and Lease-back Transaction, in either case multiplied by a
fraction, the numerator of which shall be equal to the number of
full years of the lease remaining at the time of determination
and the denominator of which shall be equal to the number of full
years of such term, without regard to any renewal or extension
options contained in the lease.
Modification of the Indenture
The Indenture contains provisions permitting the Company and
the Trustee, with the consent of the Holders of more than 50% in
principal amount of the Outstanding Debt Securities of all series
issued under the Indenture which are affected by the modification
or amendment (voting as one class), to execute supplemental
indentures modifying the rights of the Holders of Debt
Securities, provided that, without the consent of all Holders of
then Outstanding Debt Securities affected, no such modification
shall extend the fixed maturity of any Debt Securities, or reduce
the principal amount thereof, or reduce the rate or extend the
time of payment of interest thereon, or reduce any premium
payable upon redemption thereof, or reduce the amount of the
principal of the Original Issue Discount Security that would be
due and payable upon acceleration of the maturity thereof, or
change the aforesaid percentage of Debt Securities, the consent
of Holders of which will be required for any such modification.
(Section 10.02) Generally, the principal amount of the Debt
Securities that is deemed Outstanding is the principal amount
thereof, except, (a) as to Original Issue Discount Securities,
it is the portion of the principal amount thereof that then would
be due and payable upon an acceleration of the maturity thereof
pursuant to an Event of Default; and (b) as to Debt Securities
denominated in a currency other than U.S. dollars, it is the
amount of U.S. dollars that could be obtained for such principal
amount on the basis of the spot rate of exchange for purchasing
U.S. dollars with such currency at or about the date of
determination. (Section 1.01)
The Indenture also contains provisions permitting the
Company and the Trustee, without the consent of the Holders, to
execute supplemental indentures modifying the Indenture for the
purpose of adding covenants, restrictions, conditions or
provisions for the protection of the Holders of all or any series
of Debt Securities, curing any ambiguity in the Indenture or any
supplemental indenture, correcting or supplementing any provision
of the Indenture or any supplemental indenture which may be
defective or inconsistent with any other provision contained in
the Indenture or any supplemental indenture, and taking certain
other actions that shall not adversely affect the rights of any
Holder. (Section 10.01)
Events of Default
The Indenture defines an Event of Default with respect to
any series of Debt Securities as being any one of the following
events: (i) default for 30 days in any payment of interest on
such series; (ii) default in any payment of principal of (and
premium, if any, on) such series when due; (iii) default in the
payment of any sinking fund installment when due; (iv) default
for 90 days, after notice, in the performance of any other
covenants in the Indenture (other than any covenant provided for
by the Indenture solely for the benefit of a series of Debt
Securities other than that series or a covenant for which the
Indenture specifically provides otherwise);(v) failure in the
performance or observance of Section 4.11 (Restrictions on Liens)
or Section 4.12 (Restrictions on Sale and Lease-back
Transactions) and continuance of such failure for 90 days after
receipt of written notice given by the Trustee or the Holders of
at least 25% in aggregate principal amount of Debt Securities at
the time Outstanding; (vi) a default under any other indenture or
instrument under which the Company has outstanding at the date of
such default an aggregate principal amount of Indebtedness,
excluding, for this purpose, Nonrecourse Indebtedness, in excess
of 2% of Consolidated Capitalization (including an Event of
Default with respect to any other series of Debt Securities),
provided that such Indebtedness shall have been accelerated so
that such Indebtedness shall be or become due and payable prior
to the date on which the same would otherwise have become due and
payable; (vii) default in the payment at the stated maturity
thereof of an aggregate principal amount of Indebtedness,
excluding, for this purpose, Nonrecourse Indebtedness (including
such a default with respect to a series of Debt Securities other
than that series), in excess of 2% of Consolidated
Capitalization; (viii) certain events of bankruptcy, insolvency
or reorganization; or (ix) such other events as may be
established with respect to that series in accordance with
Section 2.02 of the Indenture. An Event of Default with respect
to a particular series of Debt Securities issued under the
Indenture does not necessarily constitute an Event of Default
with respect to any other series of Debt Securities issued
thereunder. In case an Event of Default under clauses (i), (ii),
(iii) or (ix) shall occur and be continuing with respect to any
series of Debt Securities, the Trustee or the Holders of not less
than 25% in aggregate principal amount of Debt Securities of all
series affected then Outstanding may declare the entire principal
(or, if the Debt Securities of such series are Original Issue
Discount Securities, the portion of the principal amount
specified in the terms of such series) of all the Debt Securities
affected thereby and interest accrued thereon to be due and
payable. In case an Event of Default under clauses (iv), (v),
(vi), (vii) or (viii) shall occur and be continuing, the Trustee
or Holders of not less than 25% in aggregate principal amount of
all the Outstanding Debt Securities (treated as one class) may
declare the entire principal (or, if any Debt Securities are
Original Issue Discount Securities, the portion of the principal
amount specified in the terms of such series) of all the Debt
Securities then outstanding and interest accrued thereon to be
due and payable. Any Event of Default with respect to a
particular series of Debt Securities (or of all the Debt
Securities, as the case may be) may be waived by the Holders of a
majority in aggregate principal amount of the Outstanding Debt
Securities of such series (or of all the Outstanding Debt
Securities, as the case may be), except in each case a failure to
pay principal or premium, if any, or interest on such Debt
Securities. (Section 6.01; Section 6.06)
The Indenture requires the Company to file with the Trustee
an Officers' Certificate annually as to knowledge of any default
under the terms of the Indenture. (Section 4.06) The Indenture
provides that the Trustee may withhold notice to the Holders of
the Debt Securities of any default (except in payment of
principal or premium, if any, or interest) if the Trustee
considers it in the interest of the Holders of the Debt
Securities to do so. (Section 6.07)
Subject to the provisions of the Indenture relating to the
duties of the Trustee, the Indenture provides that the Trustee
shall be under no obligation to exercise any of its rights or
powers under the Indenture at the request, order or direction of
the Holders of the Debt Securities unless such Holders shall have
offered to the Trustee reasonable indemnity against costs,
expenses and liabilities incurred by the Trustee. (Sections
6.04, 7.01 and 7.02) Subject to such provisions for
indemnification and certain other rights of the Trustee, the
Indenture provides that the Holders of a majority (voting as one
class) in principal amount of the Outstanding Debt Securities of
any or all series affected will have the right to direct the
time, method and place of conducting any proceeding for any
remedy available to the Trustee or exercising any trust or power
conferred on the Trustee. The Trustee may decline to follow such
direction if it in good faith determines that doing so would
involve the Trustee in personal liability or if the Trustee deems
such direction unduly prejudicial to any Holders not joining in
such direction. (Section 6.06) The Indenture provides that
notwithstanding any other provisions thereof, the right of any
Holder to receive payment of the principal of (and premium, if
any) and interest on the Debt Securities or to institute suit for
the enforcement thereof shall not be impaired or affected without
such Holder's consent. (Section 6.04)
Defeasance
Unless otherwise provided in the Prospectus Supplement with
respect to any series of Debt Securities, the Company, at its
option, (i) will be discharged from any and all obligations in
respect of such Debt Securities (except in each case for certain
obligations to register the transfer or exchange of such Debt
Securities, replace stolen, lost or mutilated Debt Securities,
maintain paying agencies and hold moneys for payment in trust) or
(ii) need not comply with certain restrictive covenants of the
Indenture (including those described under "Certain Covenants of
the Company Under the Indenture"), in each case if the Company
deposits with the Trustee, in trust, (a) money or (b) U.S.
Government Obligations (defined below) or a combination of (a)
and (b) which, through the payment of interest thereon and
principal thereof in accordance with their terms, will provide
money in an amount sufficient to pay all the principal (including
any mandatory sinking fund payments) of, and interest, if any,
and premium, if any, on, such Debt Securities on the dates such
payments are due in accordance with the terms of such series.
(Section 12.02) In order to avail itself of either of the
foregoing options, the Company must, among other things, provide
to the Trustee an opinion of independent counsel or a ruling
from, or published by, the Internal Revenue Service, to the
effect that Holders of the Debt Securities of such series will
not recognize income, gain or loss for Federal income tax
purposes as a result of the Company's exercise of its option and
will be subject to Federal income tax on the same amount and in
the same manner and at the same times as would have been the case
if such option had not been exercised. (Section 12.02) "U.S.
Government Obligations" means generally (i) direct obligations of
the United States of America for the payment of which its full
faith and credit is pledged or (ii) obligations of a person
controlled or supervised by and acting as an agency or
instrumentality of the United States of America the timely
payment of which is unconditionally guaranteed as a full faith
and credit obligation by the United States of America, which, in
either case, are not callable or redeemable at the option of the
issuer thereof. (Section 1.01) In addition, the Company can
also obtain a discharge under the Indenture with respect to all
the Debt Securities of a series by depositing with the Trustee,
in trust, funds sufficient to pay at maturity or upon redemption
all of the Debt Securities of such series provided that all of
the Debt Securities of such series are by their terms to become
due and payable within one year or are to be called for
redemption within one year. No such opinion of counsel or ruling
from the Internal Revenue Service is required with respect to a
discharge pursuant to the immediately preceding sentence. In the
event of any discharge of Debt Securities pursuant to the terms
of the Indenture described above, the Holders of such Debt
Securities will thereafter be able to look solely to such trust
fund, and not to the Company, for payments of principal, premium,
if any, and interest, if any. (Sections 12.01 and 12.02)
Concerning the Trustee
The Company maintains banking relationships (including the
extension of credit) in the ordinary course of business with the
Trustee.
DESCRIPTION OF DEBT WARRANTS
The Company may issue, together with Debt Securities or
separately, Debt Warrants for the purchase of Debt Securities.
If the Debt Warrants are issued together with any Debt
Securities, they may be attached to or separate from such Debt
Securities. The Debt Warrants are to be issued under a Debt
Warrant Agreement (the "Debt Warrant Agreement") to be entered
into between the Company and a bank or trust company, as Warrant
Agent (the "Debt Warrant Agent"), and may be issued in one or
more series, all as shall be set forth in the Prospectus
Supplement relating thereto. The forms of the Debt Warrant
Agreement and the certificates for the Debt Warrants are filed as
exhibits to the Registration Statement of which this Prospectus
is a part. The following summaries of certain provisions of the
Debt Warrant Agreement and the Debt Warrants do not purport to be
complete and such summaries are subject to the detailed
provisions of the Debt Warrant Agreement to which reference is
hereby made for a full description of such provisions, including
the definition of certain terms used herein, and for other
information regarding the Debt Warrants. References in italics
are to sections of the Debt Warrant Agreement. Wherever
particular provisions of the Debt Warrant Agreement are referred
to, such provisions are incorporated by reference as a part of
the statements made, and the statements are qualified in their
entirety by such reference.
General
Reference is made to the Prospectus Supplement for the
following terms of and information relating to the Debt Warrants:
(i) the price at which the Debt Warrants will be issued; (ii) the
currency or composite currency for which the Debt Warrants may be
purchased; (iii) the designation, aggregate principal amount,
currency or composite currency and terms of the Debt Securities
that may be purchased upon exercise of the Debt Warrants; (iv) if
applicable, the designation and terms of the Debt Securities with
which the Debt Warrants are issued and the number of Debt
Warrants issued with each of such Debt Securities; (v) if
applicable, the date on and after which the Debt Warrants and the
related Debt Securities will be separately transferable; (vi) the
principal amount of Debt Securities purchasable upon exercise of
each Debt Warrant and the price at which and the currency or
composite currency in which such principal amount of Debt
Securities may be purchased upon such exercise; (vii) the date on
which the right to exercise the Debt Warrants shall commence and
the date (the "Debt Warrant Expiration Date") on which such right
shall expire or, if the Debt Warrants are not continuously
exercisable throughout such period, the specific date or dates on
which they will be exercisable (each, a "Debt Warrant Exercise
Date," which term shall also mean, with respect to Debt Warrants
continuously exercisable for a period of time, every date during
such period); (viii) any applicable United States Federal income
tax consequences; (ix) the identity of the Debt Warrant Agent in
respect of the Debt Warrants; (x) the proposed listing, if any,
of the Debt Warrants or the Debt Securities purchasable upon
exercise thereof on any securities exchange; and (xi) any other
terms of the Debt Warrants.
Debt Warrants of each series will be evidenced by
certificates (the "Debt Warrant Certificates") in registered
form. (Section 1.02)
At the option of the holder upon request confirmed in
writing, and subject to the terms of the Debt Warrant Agreement,
Debt Warrants may be presented for exchange and for registration
of transfer (with the form of transfer endorsed thereon duly
executed) at the corporate trust office of the Debt Warrant Agent
for such series of Debt Warrants (or any other office indicated
in the Prospectus Supplement relating to such series of Debt
Warrants) without service charge and upon payment of any taxes
and other governmental charges as described in the Debt Warrant
Agreement. Such transfer or exchange will be effected only if
the Debt Warrant Agent for such series of Debt Warrants is
satisfied with the documents of title and identity of the person
making the request. (Section 4.01)
The Debt Warrant Agreement contains no covenants or other
provisions to afford protection to holders of the Debt Warrants
in the event of a highly leveraged transaction or a change in
control of the Company, except to the limited extent described
under "Merger or Disposition of Assets" below. In the event such
protective covenants or provisions are added at a later time,
they will be described in the applicable Prospectus Supplement.
Exercise of Debt Warrants
Each Debt Warrant will entitle the holder to purchase for
cash such principal amount of Debt Securities at such exercise
price as shall in each case be set forth in, or be determinable
as set forth in, the Prospectus Supplement. Debt Warrants may be
exercised at any time up to the close of business on the Debt
Warrant Expiration Date set forth in the Prospectus Supplement.
After the close of business on the Debt Warrant Expiration Date
(or such later date to which the Debt Warrant Expiration Date may
be extended by the Company), unexercised Debt Warrants will
become void. (Section 2.02)
Subject to any restrictions and additional requirements that
may be set forth in the Prospectus Supplement, Debt Warrants may
be exercised by delivery to the Debt Warrant Agent of the Debt
Warrant Certificate evidencing such Debt Warrants properly
completed and duly executed and of payment as provided in the
Prospectus Supplement of the amount required to purchase the Debt
Securities purchasable upon such exercise. (Section 2.03) The
exercise price of Debt Warrants will be that price applicable on
the date of receipt of payment in full of the requisite amount of
funds, determined as set forth in the Prospectus Supplement.
Upon receipt of such payment (plus payment of any accrued
interest on the Debt Securities being purchased, from and
including the immediately preceding interest payment date for
such Debt Securities to and including the Debt Warrant Exercise
Date (unless the Debt Warrant Exercise Date is after the record
date, if any, but on or before the immediately succeeding
interest payment date, if any, for the Debt Securities being
purchased, in which case no accrued interest is payable in
respect of Debt Securities to be issued as registered Securities)
and upon surrender of such Debt Warrant Certificate at the
corporate trust office of the Debt Warrant Agent or any other
office indicated in the Prospectus Supplement, the Company will,
as soon as practicable, forward the Debt Securities purchasable
under such exercise. If fewer than all of the Debt Warrants
represented by a Debt Warrant Certificate are exercised, a new
Debt Warrant Certificate will be issued representing the
remaining number of Warrants. (Section 2.03)
Modifications
The Debt Warrant Agreement and the terms of the Debt
Warrants and the Debt Warrant Certificates may be amended by the
Company and the Debt Warrant Agent, without the consent of the
holders, for the purpose of curing any ambiguity, or of curing,
correcting or supplementing any defective or inconsistent
provision therein or in any other manner which the Company may
deem necessary or desirable and which will not adversely affect
the interests of the holders in any material respect. (Section
6.01)
Merger or Disposition of Assets
If at any time there shall be a merger of the Company or a
disposition of substantially all of its assets as permitted under
the Indenture, the successor corporation thereunder shall succeed
to and assume all obligations of the Company under the Debt
Warrant Agreement and the Debt Warrant Certificates. (Section
3.04) See "Description of Debt Securities -- Certain Covenants
of the Company."
Enforceability of Rights of Debt Warrantholders; Governing Law
The Debt Warrant Agent will act solely as an agent of the
Company in connection with the Debt Warrant Certificates and will
not assume any obligation or relationship of agency or trust for
or with any holder of Debt Warrant Certificates or beneficial
owners of Debt Warrants. (Section 5.02) Any holder of Debt
Warrant Certificates may, without the consent of the Debt Warrant
Agent, any other holder, the Trustee or the holder of any Debt
Securities issued upon exercise of Debt Warrants, enforce by
appropriate legal action, on its own behalf, its right to
exercise the Debt Warrants evidenced by such Debt Warrant
Certificates in the manner provided therein and in the Debt
Warrant Agreement. (Section 3.03) No holder of any Debt Warrant
Certificate or beneficial owner of any Debt Warrants evidenced
thereby shall be entitled to any of the rights of a holder of the
Debt Securities purchasable upon exercise of such Debt Warrants,
including, without limitation, the right to receive the payment
of principal or premium, if any, or interest, if any, on such
Debt Securities or to enforce any of the covenants in the
Indenture. (Section 3.01) The Debt Warrants and each Debt
Warrant Agreement will be governed by, and construed in
accordance with, the laws of the State of New York. (Section
6.04)
PLAN OF DISTRIBUTION
The Company may sell the Securities in any of three ways:
(i) through underwriters or dealers; (ii) directly to one or more
purchasers; or (iii) through agents. The applicable Prospectus
Supplement will set forth the terms of the offering of any
Securities, including the names of any underwriters, the purchase
price of such Securities and the proceeds to the Company from
such sale, any underwriting discounts and other items
constituting underwriters' compensation, any initial public
offering price, any discounts or concessions allowed or reallowed
or paid to dealers and any securities exchanges on which such
Securities may be listed.
If underwriters or dealers are used in the sale, the
Securities will be acquired by such underwriters or dealers for
their own account and may be resold from time to time in one or
more transactions, including negotiated transactions, at a fixed
public offering price or at varying prices determined at the time
of sale. Such Securities may be offered to the public either
through underwriting syndicates represented by managing
underwriters or by underwriters without a syndicate. Unless
otherwise set forth in the applicable Prospectus Supplement, the
obligations of the underwriters to purchase such Securities will
be subject to certain conditions precedent, and the underwriters
will be obligated to purchase all of such Securities if any of
such Securities are purchased. Any initial public offering price
and any discounts or concessions allowed or reallowed or paid to
dealers may be changed from time to time.
Securities may also be sold directly by the Company or
through agents designated by the Company from time to time. Any
agent involved in the offer or sale of Securities will be named,
and any commissions payable by the Company to such agent will be
set forth, in the applicable Prospectus Supplement. Unless
otherwise indicated in the applicable Prospectus Supplement, any
such agent will act on a best efforts basis for the period of its
appointment.
Any underwriters, dealers or agents participating in the
distribution of Securities may be deemed to be underwriters and
any discounts or commissions received by them on the sale or
resale of Securities may be deemed to be underwriting discounts
and commissions under the Securities Act. Agents and
underwriters may be entitled under agreements entered into with
the Company to indemnification by the Company against certain
civil liabilities, including liabilities under the Securities
Act, or to contribution with respect to payments that the agents
or underwriters may be required to make in respect thereof.
Agents and underwriters may be customers of, engage in
transactions with, or perform services for, the Company or its
affiliates in the ordinary course of business.
If so indicated in the Prospectus Supplement, the Company
will authorize agents and underwriters to solicit offers by
certain institutions to purchase the Securities being offered
hereby from the Company at the public offering price set forth in
the Prospectus Supplement pursuant to delayed delivery contracts
("Contracts") providing for payment and delivery on the date or
dates stated in the Prospectus Supplement. Such Contracts will
be subject to only those conditions set forth in the Prospectus
Supplement, and the Prospectus Supplement will set forth the
commission payable for solicitation of such offers.
LEGAL MATTERS
The legality of the Securities offered hereby will be passed
upon for the Company by Akin, Gump, Strauss, Hauer & Feld,
L.L.P., 1333 New Hampshire Avenue, N.W., Suite 400, Washington,
DC 20036.
EXPERTS
The balance sheets as of January 1, 1994 and January 2, 1993
and the statements of income, shareholders' equity, and cash
flows and related financial statement schedules for each of the
three fiscal years in the period ended January 1, 1994,
incorporated by reference in this Prospectus, have been
incorporated herein in reliance on the report of Coopers &
Lybrand, independent accountants, given on the authority of that
firm as experts in accounting and auditing.
PART II. INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The estimated expenses, other than underwriting or broker-
dealer fees, discounts and commissions, in connection with the
offering are as follows:
Securities Act Registration Fee $ 62,594
Printing and Engraving 50,000
Legal Fees and Expenses 50,000
Accounting Fees and Expenses 10,000
Blue Sky Fees and Expenses 15,000
Fees of Indenture Trustee 20,000
Rating Agency Fees 110,000
Miscellaneous 32,406
TOTAL........................................ 350,000
Item 15. Indemnification of Directors and Officers
Sections 55-8-50 through 55-8-58 of the revised North
Carolina Business Corporation Act contain specific provisions
relating to indemnification of directors and officers of North
Carolina corporations. In general, the statutes provide that (i)
a corporation must indemnify a director or officer who is wholly
successful in his defense of a proceeding to which he is a party
because of his status as such, unless limited by the articles of
incorporation, and (ii) a corporation may indemnify a director or
officer if he is not wholly successful in such defense, if it is
determined as provided by statute that the director or officer
meets a certain standard of conduct, provided when a director or
officer is liable to the corporation or is adjudged liable on the
basis that personal benefit was improperly received by him, the
corporation may not indemnify him. A director or officer of a
corporation who is a party to a proceeding also may apply to the
courts for indemnification, unless the articles of incorporation
provide otherwise, and the court may order indemnification under
certain circumstances set forth in the statute. A corporation
may, in its articles of incorporation or bylaws or by contract or
resolution, provide indemnification in addition to that provided
by statute, subject to certain conditions.
The Registrant's bylaws provide for the indemnification of
any director or officer of the Registrant against liabilities and
litigation expenses arising out of his status as such, excluding
(i) any liabilities or litigation expenses relating to activities
which were at the time taken known or believed by such person to
be clearly in conflict with the best interests of the Registrant
and (ii) that portion of any liabilities or litigation expenses
with respect to which such person is entitled to receive payment
under any insurance policy other than a directors' and officers'
insurance policy maintained by the Registrant.
The Registrant's articles of incorporation provide for the
elimination of the personal liability of each director of the
Registrant to the fullest extent permitted by law.
The Registrant maintains directors' and officers' liability
insurance, under which any controlling persons, director or
officer of the Registrant is insured or indemnified against
certain liabilities which he may incur in his capacity as such.
Under agreements which may be entered into by the
Registrant, certain controlling persons, directors and officers
of the Registrant may be entitled to indemnification by
underwriters and agents who participate in the distribution of
Securities covered by the Registration Statement against certain
liabilities, including liabilities under the Securities Act of
1933, as amended.
Item 16. List of Exhibits
Exhibit No. Description
4b Indenture dated as of August 15, 1991, between the
Registrant and The Bank of New York, as Trustee
4.1a Form of Debt Warrant Agreement
4.2a Form of Debt Warrant Certificate
5 Opinion of counsel to the Registrant
regarding legality of the Securities
12 Calculation of ratio of earnings to
fixed charges
23.1 Consent of Akin, Gump, Strauss, Hauer &
Feld, L.L.P. (included in Exhibit 5)
23.2b Consent of Independent Accountants
24b Power of Attorney
25b Statement of Eligibility and
Qualification of the Trustee on Form T-1
a Incorporated by reference to the corresponding exhibit
included in Item 16 of the Registrant's Registration
Statement on Form S-3 (No. 33-40457).
b Previously filed.
Item 17. Undertakings
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;
(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;
(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.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective
amendment by those 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.
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 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 herein, and the
offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers
and persons controlling of the Registrant pursuant to the
foregoing provisions, or otherwise, the Registrant has been
informed that in the opinion of the Securities and Exchange
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.
The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of
1933, the information omitted from the form of prospectus filed
as a part of this Registration Statement in reliance upon Rule
430A and contained in a form of prospectus filed pursuant to Rule
424(b)(1) or (4) or 497(h) under the Securities Act shall be
deemed to be a part of this Registration Statement at the time it
was declared effective, and each post-effective amendment, if
any, that contains a form of prospectus 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.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
the Registrant certifies that it has reasonable grounds to
believe it meets all of the requirements for filing on Form S-3
and has duly caused this Amendment No. 3 to its Registration
Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Salisbury, State of
North Carolina, on June 30 , 1994.
FOOD LION, INC.
By:
Tom E. Smith
Chairman of the Board,
President and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933,
this Amendment No. 3 to Food Lion, Inc.'s Registration Statement
has been signed by the following persons in the capacities
indicated on June 30, 1994.
Tom E. Smith Jacqueline Kelly Collamore
Chairman of the Board, President, Director
Chief Executive Officer and Director
Dan A. Boone Charles de Cooman
d'Herlinckhove
Vice President-Finance, Director
Chief Financial Officer and
Director (Principal Financial Officer)
Carol Herndon William G. Ferguson
Controller (Principal Accounting Director
Officer)
Jacques LeClercq Pierre Beckers
Director Director
Gui de Vaucleroy John P. Watkins
Director Director
Dr. Bernard W. Franklin
Director
EXHIBITS
EXHIBIT INDEX
to
Registration Statement on Form S-3 of
Food Lion, Inc.
Sequential
Exhibit Description Page No.
No.
4b Indenture dated as of August 15,
1991, between the Registrant and
The Bank of New York, as Trustee
4.1a Form of Debt Warrant Agreement
4.2a Form of Debt Warrant Certificate
5 Opinion of counsel to the
Registrant regarding legality of
the Securities
12 Calculation of ratio of earnings
to fixed charges
23.1 Consent of Akin, Gump, Strauss,
Hauer & Feld, L.L.P. (included
in Exhibit 5)
23.2b Consent of Independent
Accountants
24b Power of Attorney
25b Statement of Eligibility and
Qualification of the Trustee on
Form T-1
a Incorporated by reference to the corresponding exhibit
included in Item 16 of the Registrant's Registration
Statement on Form S-3 (No. 33-40457).
b Previously filed.
EX-5
2
Exhibit 5
June 29, 1994
Food Lion, Inc.
P.O. Box 1330
Salisbury, North Carolina 28145-1330
Ladies and Gentlemen:
We have acted as counsel to Food Lion, Inc., a North
Carolina corporation (the "Company"), in connection with the
preparation and filing with the Securities and Exchange
Commission (the "Commission") of a registration statement on Form
S-3 (Registration No. 33-49620, the "Registration Statement")
under the Securities Act of 1933, as amended (the "Act"), with
respect to debt securities having an aggregate initial public
offering price of $350,000,000 (the "Debt Securities") and
warrants to purchase Debt Securities (the "Debt Warrants" and,
together with the Debt Securities, the "Securities"). The Debt
Securities are to be issued from time to time under an indenture
dated as of August 15, 1991 between the Company and The Bank of
New York, as Trustee (the "Indenture"). The Debt Warrants, if
any, will be issued under a debt warrant agreement (the "Debt
Warrant Agreement") to be entered into between the Company and a
debt warrant agent. The Indenture, which is filed as an exhibit
to the Registration Statement, was previously qualified under the
Trust Indenture Act of 1939 in connection with the Company's
filing of its Registration Statement on Form S-3 (No. 33-40457).
As such counsel we have examined the Registration Statement,
the Indenture and have made such other factual and legal
investigations as we considered necessary or appropriate for
purposes of this opinion. In connection with our engagement, we
have examined the Registration Statement and all amendments and
supplements thereto made as of or before the date hereof, the
Indenture, the Debt Warrant Agreement and such other documents as
we have considered necessary.
Based on the foregoing, we are of the opinion that when (a)
the Registration Statement, and any amendments or supplements
thereto, have become effective under the Act, (b) the Indenture
has been qualified under the Trust Indenture Act of 1939, as
amended, and has been duly executed by the parties thereto, (c)
the Company has authorized the issuance and sale of the Debt
Securities pursuant to Section 2.02 of the Indenture, (d) the
Company has authorized the issuance and sale of the Debt Warrants
pursuant to the Debt Warrant Agreement and (e) the Securities
have been duly executed, authenticated, issued and delivered for
the consideration and in accordance with the transaction or
transactions contemplated by the Prospectus Supplement, the
Securities will be duly authorized and will constitute legal,
valid and binding obligations of the Company and will be entitled
to the benefits of the Indenture and the Debt Warrant Agreement
enforceable against the Company in accordance with their terms
except: (a) as such enforceability may be limited by applicable
bankruptcy, reorganization, insolvency, fraudulent conveyance or
transfer, moratorium or similar laws affecting creditors' rights
and remedies generally or by general principles of equity,
whether such enforceability is considered in a proceeding at law
or in equity, or by the discretion of the court before which any
proceeding therefor may be brought; and (b) that we express no
opinion as to the enforceability of any waiver as to extension or
stay laws.
We consent to the inclusion of this opinion in the
Registration Statement and reference to our firm under the
caption "Legal Matters" in the Prospectus included in the
Registration Statement.
Very truly yours,
AKIN, GUMP, STRAUSS, HAUER
& FELD, L.L.P.
EX-12
3
Exhibit 12
EARNINGS TO FIXED CHARGES
(Dollars in Thousands)
12 Weeks Ended Year Ended
3/26/94 3/27/93 1/1/94 1/2/93 12/28/91 12/29/90 12/30/89
Fixed Charges:
Interest on
Indebtedness $10,465 $9,229 $42,071 $30,079 $19,737 $16,647 $19,900
Base Str Rents(B)33,984 35,595 147,025 134,439 116,676 100,144 79,665
Other Rents (C) 69 75 278 534 766 675 1,913
Total 44,518 44,899 189,374 165,052 137,179 117,466 101,478
Pretax Income 51,230 35,594 6,352 290,605 340,671 284,471 230,475
Earnings $95,748 $80,493 $195,726 $455,657 $477,850 $401,937 $331,953
Ratio of Earnings to
Fixed Charges 2.2 1.8 1.0 2.8 3.5 3.4 3.3
Notes:
(A) Does not include interest on capitalized leases.
(B) Total base rent payments under all store leases, whether operating or
capital. Does not include percentage rents, property taxes, insurance,
common area maintenance, or other possible miscellaneous charges under some
of the leases.
(C) Includes rents under all other leases not included in B above, including
equipment and minor real estate leases.