-----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, VZLMML2qvk00xvKn7ANcGsXk+lSUE/usuqIVO9ilYvpPkXz1w39z29HMti7owexR qa8yx1wJJsMH3i20ReBvVw== 0000950150-98-001670.txt : 19981103 0000950150-98-001670.hdr.sgml : 19981103 ACCESSION NUMBER: 0000950150-98-001670 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 19981102 GROUP MEMBERS: F4L EQUITY PARTNERS, L.P. GROUP MEMBERS: FFL PARTNERS GROUP MEMBERS: FRED MEYER/SMITH'S FOUNDATION GROUP MEMBERS: RONALD W. BURKLE GROUP MEMBERS: YUCAIPA ARIZONA PARTNERS, L.P. GROUP MEMBERS: YUCAIPA CAPITAL FUND GROUP MEMBERS: YUCAIPA COMPANIES GROUP MEMBERS: YUCAIPA SMITTY PARTNERS II, L.P. GROUP MEMBERS: YUCAIPA SMITTY'S PARTNERS, L.P. GROUP MEMBERS: YUCAIPA SSV PARTNERS, L.P. GROUP MEMBERS: YUCAIPA/F4L PARTNERS SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: MEYER FRED INC CENTRAL INDEX KEY: 0000701169 STANDARD INDUSTRIAL CLASSIFICATION: RETAIL-DEPARTMENT STORES [5311] IRS NUMBER: 930798201 STATE OF INCORPORATION: DE FISCAL YEAR END: 0201 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: SEC FILE NUMBER: 005-33269 FILM NUMBER: 98734876 BUSINESS ADDRESS: STREET 1: 3800 SE 22ND AVE CITY: PORTLAND STATE: OR ZIP: 97202 BUSINESS PHONE: 5032328844 MAIL ADDRESS: STREET 1: PO BOX 42121 CITY: PORTLAND STATE: OR ZIP: 97242 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: YUCAIPA COMPANIES CENTRAL INDEX KEY: 0001015905 STANDARD INDUSTRIAL CLASSIFICATION: [] FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 10000 STREET 2: 10000 SANTA MONICA BOULEVARD 5TH FLOOR CITY: LOS ANGELES STATE: CA ZIP: 90067 BUSINESS PHONE: 3107897800 SC 13D/A 1 AMEMDMENT #3 TO SCHEDULE 13D 1 SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ----------------------------------------- SCHEDULE 13D (RULE 13D-101) UNDER THE SECURITIES EXCHANGE ACT OF 1934 (AMENDMENT NO. 3) FRED MEYER, INC. (Name of Issuer) Common Stock, $.01 Par Value (Title of Class of Securities) 592907-10-9 (CUSIP Number) Robert P. Bermingham The Yucaipa Companies 10000 Santa Monica Boulevard, Fifth Floor Los Angeles, California 90067 (310) 789-7200 (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) October 18, 1998 (Date of Event which Requires Filing of This Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition which is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(b)(3) or (4), check the following box: [ ] The information required in 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 (the "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). (Continued on following pages) (Page 1 of 23 Pages) 2 SCHEDULE 13D - -------------------------------- -------------------------------- CUSIP NO. 592907-10-9 PAGE 2 OF 23 - -------------------------------- -------------------------------- - -------------------------------------------------------------------------------- 1 NAME OF REPORTING PERSON THE YUCAIPA COMPANIES - -------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ] (b) [X] - -------------------------------------------------------------------------------- 3 SEC USE ONLY - -------------------------------------------------------------------------------- 4 SOURCE OF FUNDS NA - -------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] - -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION CALIFORNIA - -------------------------------------------------------------------------------- NUMBER OF 7 SOLE VOTING POWER SHARES BENEFICIALLY 4,856,211 OWNED BY EACH ---------------------------------------------------------- REPORTING 8 SHARED VOTING POWER PERSON WITH 4,682,927 ---------------------------------------------------------- 9 SOLE DISPOSITIVE POWER 4,856,211 ---------------------------------------------------------- 10 SHARED DISPOSITIVE POWER 4,682,927 - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 9,539,138 - -------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [ ] - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 6.2% - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON PN - -------------------------------------------------------------------------------- 3 SCHEDULE 13D - -------------------------------- -------------------------------- CUSIP NO. 592907-10-9 PAGE 3 OF 23 - -------------------------------- -------------------------------- - -------------------------------------------------------------------------------- 1 NAME OF REPORTING PERSON YUCAIPA ARIZONA PARTNERS, L.P. - -------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ] (b) [X] - -------------------------------------------------------------------------------- 3 SEC USE ONLY - -------------------------------------------------------------------------------- 4 SOURCE OF FUNDS NA - -------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] - -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION CALIFORNIA - -------------------------------------------------------------------------------- NUMBER OF 7 SOLE VOTING POWER SHARES BENEFICIALLY 574,522 OWNED BY EACH ---------------------------------------------------------- REPORTING 8 SHARED VOTING POWER PERSON WITH 0 ---------------------------------------------------------- 9 SOLE DISPOSITIVE POWER 574,522 ---------------------------------------------------------- 10 SHARED DISPOSITIVE POWER 0 - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 574,522 - -------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [ ] - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 0.4% - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON PN - -------------------------------------------------------------------------------- 4 SCHEDULE 13D - -------------------------------- -------------------------------- CUSIP NO. 592907-10-9 PAGE 4 OF 23 - -------------------------------- -------------------------------- - -------------------------------------------------------------------------------- 1 NAME OF REPORTING PERSON YUCAIPA SMITTY'S PARTNERS, L.P. - -------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ] (b) [X] - -------------------------------------------------------------------------------- 3 SEC USE ONLY - -------------------------------------------------------------------------------- 4 SOURCE OF FUNDS NA - -------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] - -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION CALIFORNIA - -------------------------------------------------------------------------------- NUMBER OF 7 SOLE VOTING POWER SHARES BENEFICIALLY 631,400 OWNED BY EACH ---------------------------------------------------------- REPORTING 8 SHARED VOTING POWER PERSON WITH 0 ---------------------------------------------------------- 9 SOLE DISPOSITIVE POWER 631,400 ---------------------------------------------------------- 10 SHARED DISPOSITIVE POWER 0 - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 631,400 - -------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [ ] - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 0.4% - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON PN - -------------------------------------------------------------------------------- 5 SCHEDULE 13D - -------------------------------- -------------------------------- CUSIP NO. 592907-10-9 PAGE 5 OF 23 - -------------------------------- -------------------------------- - -------------------------------------------------------------------------------- 1 NAME OF REPORTING PERSON YUCAIPA SMITTY'S PARTNERS II, L.P. - -------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ] (b) [X] - -------------------------------------------------------------------------------- 3 SEC USE ONLY - -------------------------------------------------------------------------------- 4 SOURCE OF FUNDS NA - -------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] - -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION CALIFORNIA - -------------------------------------------------------------------------------- NUMBER OF 7 SOLE VOTING POWER SHARES BENEFICIALLY 287,264 OWNED BY EACH ---------------------------------------------------------- REPORTING 8 SHARED VOTING POWER PERSON WITH 0 ---------------------------------------------------------- 9 SOLE DISPOSITIVE POWER 287,264 ---------------------------------------------------------- 10 SHARED DISPOSITIVE POWER 0 - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 287,264 - -------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [ ] - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 0.2% - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON PN - -------------------------------------------------------------------------------- 6 SCHEDULE 13D - -------------------------------- -------------------------------- CUSIP NO. 592907-10-9 PAGE 6 OF 23 - -------------------------------- -------------------------------- - -------------------------------------------------------------------------------- 1 NAME OF REPORTING PERSON YUCAIPA SSV PARTNERS, L.P. - -------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ] (b) [X] - -------------------------------------------------------------------------------- 3 SEC USE ONLY - -------------------------------------------------------------------------------- 4 SOURCE OF FUNDS NA - -------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] - -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION CALIFORNIA - -------------------------------------------------------------------------------- NUMBER OF 7 SOLE VOTING POWER SHARES BENEFICIALLY 2,744,594 OWNED BY EACH ---------------------------------------------------------- REPORTING 8 SHARED VOTING POWER PERSON WITH 0 ---------------------------------------------------------- 9 SOLE DISPOSITIVE POWER 2,744,594 ---------------------------------------------------------- 10 SHARED DISPOSITIVE POWER 0 - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 2,744,594 - -------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [ ] - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 1.8% - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON PN - -------------------------------------------------------------------------------- 7 SCHEDULE 13D - -------------------------------- -------------------------------- CUSIP NO. 592907-10-9 PAGE 7 OF 23 - -------------------------------- -------------------------------- - -------------------------------------------------------------------------------- 1 NAME OF REPORTING PERSON F4L EQUITY PARTNERS, L.P. - -------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ] (b) [X] - -------------------------------------------------------------------------------- 3 SEC USE ONLY - -------------------------------------------------------------------------------- 4 SOURCE OF FUNDS NA - -------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] - -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION CALIFORNIA - -------------------------------------------------------------------------------- NUMBER OF 7 SOLE VOTING POWER SHARES BENEFICIALLY 3,798,525 OWNED BY EACH ---------------------------------------------------------- REPORTING 8 SHARED VOTING POWER PERSON WITH 0 ---------------------------------------------------------- 9 SOLE DISPOSITIVE POWER 3,798,525 ---------------------------------------------------------- 10 SHARED DISPOSITIVE POWER 0 - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 3,798,525 - -------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [ ] - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 2.5% - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON PN - -------------------------------------------------------------------------------- 8 SCHEDULE 13D - -------------------------------- -------------------------------- CUSIP NO. 592907-10-9 PAGE 8 OF 23 - -------------------------------- -------------------------------- - -------------------------------------------------------------------------------- 1 NAME OF REPORTING PERSON FFL PARTNERS - -------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ] (b) [X] - -------------------------------------------------------------------------------- 3 SEC USE ONLY - -------------------------------------------------------------------------------- 4 SOURCE OF FUNDS NA - -------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] - -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION CALIFORNIA - -------------------------------------------------------------------------------- NUMBER OF 7 SOLE VOTING POWER SHARES BENEFICIALLY 365,429 OWNED BY EACH ---------------------------------------------------------- REPORTING 8 SHARED VOTING POWER PERSON WITH 0 ---------------------------------------------------------- 9 SOLE DISPOSITIVE POWER 365,429 ---------------------------------------------------------- 10 SHARED DISPOSITIVE POWER 0 - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 365,429 - -------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [ ] - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 0.2% - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON PN - -------------------------------------------------------------------------------- 9 SCHEDULE 13D - -------------------------------- -------------------------------- CUSIP NO. 592907-10-9 PAGE 9 OF 23 - -------------------------------- -------------------------------- - -------------------------------------------------------------------------------- 1 NAME OF REPORTING PERSON FRED MEYER/SMITH'S FOUNDATION - -------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ] (b) [X] - -------------------------------------------------------------------------------- 3 SEC USE ONLY - -------------------------------------------------------------------------------- 4 SOURCE OF FUNDS NA - -------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] - -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION OREGON - -------------------------------------------------------------------------------- NUMBER OF 7 SOLE VOTING POWER SHARES BENEFICIALLY 28,165 OWNED BY EACH ---------------------------------------------------------- REPORTING 8 SHARED VOTING POWER PERSON WITH 0 ---------------------------------------------------------- 9 SOLE DISPOSITIVE POWER 28,165 ---------------------------------------------------------- 10 SHARED DISPOSITIVE POWER 0 - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 28,165 - -------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [ ] - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) LESS THAN 0.1% - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON OO - -------------------------------------------------------------------------------- 10 SCHEDULE 13D - -------------------------------- -------------------------------- CUSIP NO. 592907-10-9 PAGE 10 OF 23 - -------------------------------- -------------------------------- - -------------------------------------------------------------------------------- 1 NAME OF REPORTING PERSON YUCAIPA CAPITAL FUND - -------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ] (b) [X] - -------------------------------------------------------------------------------- 3 SEC USE ONLY - -------------------------------------------------------------------------------- 4 SOURCE OF FUNDS NA - -------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] - -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION CALIFORNIA - -------------------------------------------------------------------------------- NUMBER OF 7 SOLE VOTING POWER SHARES BENEFICIALLY 335,711 OWNED BY EACH ---------------------------------------------------------- REPORTING 8 SHARED VOTING POWER PERSON WITH 79,718 ---------------------------------------------------------- 9 SOLE DISPOSITIVE POWER 335,711 ---------------------------------------------------------- 10 SHARED DISPOSITIVE POWER 79,718 - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 415,429 - -------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [ ] - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 0.3% - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON PN - -------------------------------------------------------------------------------- 11 SCHEDULE 13D - -------------------------------- -------------------------------- CUSIP NO. 592907-10-9 PAGE 11 OF 23 - -------------------------------- -------------------------------- - -------------------------------------------------------------------------------- 1 NAME OF REPORTING PERSON YUCAIPA/F4L PARTNERS - -------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ] (b) [X] - -------------------------------------------------------------------------------- 3 SEC USE ONLY - -------------------------------------------------------------------------------- 4 SOURCE OF FUNDS NA - -------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] - -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION CALIFORNIA - -------------------------------------------------------------------------------- NUMBER OF 7 SOLE VOTING POWER SHARES BENEFICIALLY 79,718 OWNED BY EACH ---------------------------------------------------------- REPORTING 8 SHARED VOTING POWER PERSON WITH 0 ---------------------------------------------------------- 9 SOLE DISPOSITIVE POWER 79,718 ---------------------------------------------------------- 10 SHARED DISPOSITIVE POWER 0 - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 79,718 - -------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [ ] - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 0.1% - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON PN - -------------------------------------------------------------------------------- 12 SCHEDULE 13D - -------------------------------- -------------------------------- CUSIP NO. 592907-10-9 PAGE 12 OF 23 - -------------------------------- -------------------------------- - -------------------------------------------------------------------------------- 1 NAME OF REPORTING PERSON RONALD W. BURKLE - -------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ] (b) [X] - -------------------------------------------------------------------------------- 3 SEC USE ONLY - -------------------------------------------------------------------------------- 4 SOURCE OF FUNDS NA - -------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] - -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION US - -------------------------------------------------------------------------------- NUMBER OF 7 SOLE VOTING POWER SHARES BENEFICIALLY 827,320 OWNED BY EACH ---------------------------------------------------------- REPORTING 8 SHARED VOTING POWER PERSON WITH 13,701,539 ---------------------------------------------------------- 9 SOLE DISPOSITIVE POWER 827,320 ---------------------------------------------------------- 10 SHARED DISPOSITIVE POWER 13,701,539 - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 14,528,859 - -------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [ ] - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 9.4% - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON IN - -------------------------------------------------------------------------------- 13 Item 1. Security and Issuer. This Amendment No. 3 to Schedule 13D (this "Amendment") is being filed by The Yucaipa Companies, a California general partnership ("Yucaipa"), Yucaipa Arizona Partners, L.P., a California limited partnership ("Arizona Partners"), Yucaipa Smitty's Partners, L.P., a California limited partnership ("Smitty's Partners"), Yucaipa Smitty's Partners II, L.P., a California limited partnership ("Smitty's Partners II"), Yucaipa SSV Partners, L.P., a California limited partnership ("SSV Partners"), F4L Equity Partners, L.P., a California limited partnership ("F4L Equity Partners"), FFL Partners, a California general partnership ("FFL Partners"), Fred Meyer/Smith's Foundation, an Oregon non-profit corporation ("Foundation"), Yucaipa Capital Fund, a California limited partnership ("Yucaipa Capital Fund"), Yucaipa/F4L Partners, a California general partnership ("Yucaipa/F4L Partners"), and Ronald W. Burkle (collectively, the "Reporting Persons"). This Amendment No. 3 amends the Statement on Schedule 13D dated September 9, 1997 filed with the Securities and Exchange Commission (the "Commission") on September 19, 1997, Amendment No. 1 thereto dated November 6, 1997 filed with the Commission on November 17, 1997 and Amendment No. 2 thereto dated March 10, 1998 filed with the Commission on March 20, 1998 (the "Statement") by the Reporting Persons relating to the common stock, par value $.01 per share (the "Common Stock"), of Fred Meyer, Inc., a Delaware corporation ("Fred Meyer" or the "Company"), which has its principal executive offices located at 3800 S.E. 22nd Avenue, Portland, Oregon 97202. This Amendment No. 3 reflects that the Reporting Persons have entered into a Voting Agreement, dated as of October 18, 1998 (the "Voting Agreement"), with The Kroger Co., an Ohio corporation ("Kroger"). Capitalized terms used herein that are not otherwise defined shall have the meanings given to them in the Statement. Item 2. Identity and Background. The response to Item 2 is amended as follows: Item 2(a) is restated in its entirety as follows: (a) This statement is being filed jointly by the Reporting Persons. Yucaipa is the sole general partner of each of Arizona Partners, Smitty's Partners, Smitty's Partners II and SSV Partners. Ronald W. Burkle, Robert I. Bernstein, Linda McLoughlin Figel, Patrick L. Graham, Lawrence K. Kalantari, Darren W. Karst and Ira L. Tochner are the general partners of Yucaipa. Ronald W. Burkle, Yucaipa Capital Advisors, Inc., a California corporation ("Yucaipa Capital Advisors"), and George G. Golleher are the sole general partners of F4L Equity Partners. Ronald W. Burkle is the sole executive officer, director and controlling stockholder of Yucaipa Capital Advisors. Ronald W. Burkle, Joe Burkle, Richard d'Abo, David Gammon, Greg Gammon, Larry Larkin, Rex H. Lewis, Harold McIntire, Douglas L. McKenzie, Michael Saltman, Charles Smith, Darrel Willoughby, Yucaipa Capital Partners, L.P., Yucaipa and Yucaipa Auto Partners, L.P. are the sole general partners of FFL Partners. Ronald W. Burkle is the sole general partner of each of Yucaipa Capital Partners, L.P. and Yucaipa Auto Partners, L.P. Ronald W. Burkle, Robert G. Miller, Roger A. Cooke and Kenneth Thrasher are the President, Vice President, Secretary and Treasurer, respectively, and each is a director, of Foundation. Yucaipa Capital Advisors is the sole general partner of Yucaipa Capital Fund. Yucaipa Capital Fund and Yucaipa are the sole partners of Yucaipa/F4L Partners. Item 2(b) is restated in its entirety as follows: (b) The address of the principal business and principal office of Yucaipa, Arizona Partners, Smitty's Partners, Smitty's Partners II, SSV Partners, F4L Equity Partners, FFL Partners, Foundation, Yucaipa Capital Fund, Yucaipa/F4L Partners, Yucaipa Capital Advisors, Yucaipa Capital Partners, L.P. and Yucaipa Auto Partners, L.P. is c/o The Yucaipa Companies, 10000 Santa Monica Boulevard, Fifth Floor, Los Angeles, California 90067. The business address of Ronald W. Burkle, Robert I. Bernstein, Linda McLoughlin Figel, Patrick L. Graham, Lawrence K. Kalantari, Darren W. Karst and Ira L. Tochner is c/o The Yucaipa Companies 10000 Santa Monica Boulevard, Fifth Floor, Los Angeles, California 90067. The business address of each of George G. Golleher, Harold McIntire and Darrel Willoughby is c/o Ralphs Grocery Company, 1100 West Artesia Boulevard, Compton, California 90220. The business address of each of Joe Burkle and David Gammon is c/o Falley's, Inc., 3120 S. Kansas Avenue, Topeka, Kansas 66611. The business address of Richard d'Abo is c/o Creative Cafe Wilshire, 640 San Vicente Boulevard, Suite 70, Los Angeles, California 90048. The business address of Greg Gammon is 15751 (Page 13 of 23) 14 Golden Spur, Riverside, California 92504. The business address of Larry Larkin is c/o Larkin Properties, 1700 E. Desert Inn Road, Suite 405, Las Vegas, Nevada 89109. The business address of Rex H. Lewis is c/o Avante Homes, 2325 A Renaissance Drive, Las Vegas, Nevada 89119. The business address of Douglas L. McKenzie is c/o Big Sur Bottled Water, 21875 Rosehart Way, Salinas, California 93921. The business address of Michael Saltman is c/o The Vista Group, 2295 A Renaissance Drive, Las Vegas, Nevada 89119. The address of Charles Smith is 3527 Copper Kettle Way, Orange, California 92867. The business address of each of Robert G. Miller, Roger A. Cooke and Kenneth Thrasher is c/o Fred Meyer, Inc., 3800 SE 22nd Avenue, Portland, Oregon 97202. Item 2(c) is restated in its entirety as follows: The principal business of Yucaipa is acquiring, investing in and/or managing supermarket and other companies. The principal business of Arizona Partners, Smitty's Partners, Smitty's Partners II, SSV Partners, F4L Equity Partners, FFL Partners, Yucaipa Capital Fund and Yucaipa FFL Partners is investing in the Common Stock. The present principal occupation or employment of each of Ronald W. Burkle, Robert I. Bernstein, Linda McLoughlin Figel, Patrick L. Graham, Lawrence K. Kalantari, Darren W. Karst and Ira L. Tochner is as a principal of The Yucaipa Companies LLC, a private investment group specializing in supermarket companies and an affiliate of Yucaipa ("Yucaipa LLC"), the address of which is 10000 Santa Monica Boulevard, Fifth Floor, Los Angeles, California 90067. The principal business of each of Yucaipa Capital Advisors and Yucaipa Capital Partners, L.P. is to own an interest in and manage certain entities which invest in the Common Stock. The principal business of Yucaipa Auto Partners, L.P. is to own an interest in and manage certain assets, including entities which invest in the Common Stock. The principal purpose of Foundation is as a not-for-profit charitable organization. The present principal occupation or employment of George G. Golleher and Harold McIntire is as the President and Chief Operating Officer of Fred Meyer and the President of the Food 4 Less Division of Ralphs Grocery Company, a Delaware corporation, respectively. The present principal occupation or employment of Joe Burkle and David Gammon is as the Chief Executive Officer and Assistant to the President, respectively, of Falley's, Inc. The present principal occupation or employment of Richard d'Abo is in the operations of a post-production film company. The present principal occupation or employment of Greg Gammon is as a salesman. Larry Larkin and Charles Smith are retired. The present principal occupation or employment of Rex H. Lewis and Michael Saltman is as a developer. The present principal occupation or employment of Douglas L. McKenzie is as the President of Big Sur Bottled Water. The present principal occupation or employment of Darrel Willoughby is as a construction manager. The present principal occupation of Robert G. Miller, Roger A. Cooke and Kenneth Thrasher is as the Chief Executive Officer, Senior Vice President and General Counsel and Executive Vice President and Chief Administrative Officer, respectively, of Fred Meyer. Item 2(d) is restated in its entirety as follows: None of the Reporting Persons, nor, to the best of their knowledge, any of the individuals referred to in paragraph (a) above, has during the last five years been convicted in a criminal proceeding (excluding traffic violations and similar misdemeanors). Item 2(e) is restated in its entirety as follows: None of the Reporting Persons, nor, to the best of their knowledge, any of the individuals referred to in paragraph (a) above, has during the last five years been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws. Item 2(f) is restated in its entirety as follows: To the Reporting Persons' knowledge, each of the individuals referred to in paragraph (a) above, other than Richard d'Abo is a United States citizen. To the Reporting Persons' knowledge, Richard d'Abo is a citizen of the United Kingdom. (Page 14 of 23) 15 Item 3. Source and Amount of Funds or Other Consideration. Item 3 is restated in its entirety as follows: The consideration for the shares of Common Stock acquired by the Reporting Persons was (i) Class B Common Stock, par value $.01 per share, of Smith's Food & Drug Centers, Inc., a Delaware corporation ("Smith's"), held by the Reporting Persons prior to September 9, 1997 and (ii) common stock, par value $.01 per share, of Food 4 Less Holdings, Inc., a Delaware corporation ("Food 4 Less") and, in the case of Yucaipa, a warrant to purchase shares thereof, in each case held by the Reporting Persons prior to March 10, 1998. On September 9, 1997 (the "Fred Meyer-Smith's Merger Closing Date"), pursuant to the Agreement and Plan of Reorganization and Merger dated as of May 11, 1997 (the "Fred Meyer-Smith's Merger Agreement") among Fred Meyer, FM Stores, Inc., a Delaware corporation formerly known as Fred Meyer, Inc. ("FM Stores"), Smith's, Fred Meyer Merger Sub, Inc., a Delaware corporation and wholly-owned subsidiary of Fred Meyer ("Fred Meyer Merger Sub") and Smith Merger Sub, Inc., a Delaware corporation and wholly-subsidiary of Fred Meyer ("Smith's Merger Sub"), (i) Smith's Merger Sub merged with and into Smith's and Fred Meyer Merger Sub merged with and into FM Stores (together, the "Fred Meyer-Smith's Merger") with each of Smith's and FM Stores surviving the respective merger and becoming a wholly-owned subsidiary of Fred Meyer, (ii) each outstanding share of Class A Common Stock, par value $.01 per share, and Class B Common Stock, par value $.01 per share, of Smith's (including shares held by each of the Reporting Persons) was converted into 1.05 shares of Common Stock and (iii) each outstanding share of common stock, par value $.01 per share, of FM Stores was converted into one share of Common Stock. On March 10, 1998 (the "Fred Meyer-Food 4 Less Merger Closing Date"), pursuant to the Agreement and Plan of Merger, dated as of November 6, 1997 (the "Fred Meyer-Food 4 Less Merger Agreement"), by and among Fred Meyer, Food 4 Less and FFL Acquisition Sub, a Delaware corporation and wholly-owned subsidiary of Fred Meyer ("FFL Sub"), FFL Sub merged with and into Food 4 Less (the "Fred Meyer-Food 4 Less Merger") with Food 4 Less surviving the Fred Meyer-Food 4 Less Merger and becoming a wholly-owned subsidiary of Fred Meyer. In connection therewith, all outstanding shares of capital stock of Food 4 Less, together with the warrant to purchase shares of common stock of Food 4 Less held by Yucaipa, were converted into shares of Common Stock. Item 4. Purpose of Transaction. Item 4 is restated in its entirety as follows: As further described below in Item 6, the Reporting Persons have entered into the Voting Agreement with Kroger. The Voting Agreement was entered into by the parties in connection with the Fred Meyer-Kroger Merger Agreement (as defined herein) as more fully described in Item 6 below. On October 18, 1998, Kroger, Jobsite Holdings, Inc., a Delaware corporation and wholly-owned subsidiary of Kroger ("Jobsite Holdings"), and Fred Meyer, entered into an Agreement and Plan of Merger (the "Fred Meyer-Kroger Merger Agreement"), a copy of which is attached hereto as an exhibit and incorporated herein by reference. Pursuant to the terms of the Fred Meyer-Kroger Merger Agreement, Jobsite Holdings will merge with and into Fred Meyer (the "Fred Meyer-Kroger Merger") with Fred Meyer surviving the Fred Meyer-Kroger Merger and becoming a wholly-owned subsidiary of Kroger, subject to certain conditions being satisfied or waived. Certain stockholders of Fred Meyer, including the Reporting Persons, holding approximately 9.5% of the aggregate voting power of Fred Meyer have entered into agreements to vote their shares of Fred Meyer stock in favor of the Fred Meyer-Kroger Merger Agreement. Pursuant to the Fred Meyer-Kroger Merger Agreement, stockholders of Fred Meyer will receive one share of common stock, par value $1.00 per share, of Kroger for each share of Common Stock. (Page 15 of 23) 16 Item 5. Interest in Securities of the Issuer. The response to Item 5 is amended as follows: Item 5(a) is restated in its entirety as follows: (a) Arizona Partners owns 574,522 shares of Common Stock (approximately 0.4% of the total number of outstanding shares of Common Stock as of October 18, 1998); Smitty's Partners owns 631,400 shares of Common Stock (approximately 0.4% of the total number of outstanding shares of Common Stock as of October 18, 1998); Smitty's Partners II owns 287,264 shares of Common Stock (approximately 0.2% of the total number of outstanding shares of Common Stock as of October 18, 1998); SSV Partners owns 2,744,594 shares of Common Stock (approximately 1.8% of the total number of outstanding shares of Common Stock as of October 18, 1998); Yucaipa owns 986,845 shares of Common Stock (approximately 0.6% of the total number of outstanding shares of Common Stock as of October 18, 1998) and is the record holder of a currently exercisable warrant entitling it to purchase up to 3,869,366 shares of Common Stock, which shares it may be deemed to beneficially own pursuant to Section 13d-3(d)(1) of the Act; F4L Equity Partners owns 3,798,525 shares of Common Stock (approximately 2.5% of the total number of outstanding shares of Common Stock as of October 18, 1998); FFL Partners owns 365,429 shares of Common Stock (approximately 0.2% of the total number of outstanding shares of Common Stock as of October 18, 1998); Foundation owns 28,165 shares of Common Stock (less than 0.1% of the total number of outstanding shares of Common Stock as of October 18, 1998); Yucaipa Capital Fund owns 335,711 shares of Common Stock (approximately 0.3% of the total number of outstanding shares of Common Stock as of October 18, 1998); Yucaipa/F4L Partners owns 79,718 shares of Common Stock (approximately 0.1% of the total number of outstanding shares of Common Stock as of October 18, 1998); and Ronald W. Burkle owns 827,320 shares of Common Stock (approximately 0.5% of the total number of outstanding shares of Common Stock as of October 18, 1998). Item 5(b) is restated in its entirety as follows: Each of Arizona Partners, Smitty's Partners, Smitty's Partners II and SSV Partners, acting through their sole general partner, Yucaipa, have the sole power to vote or direct the vote, and to dispose or to direct the disposition of the shares of Common Stock beneficially owned by them. As a result, Yucaipa may be deemed to beneficially own the shares of Common Stock directly owned by Arizona Partners, Smitty's Partners, Smitty's Partners II and SSV Partners. Each of Ronald W. Burkle, Robert I. Bernstein, Linda McLoughlin Figel, Patrick L. Graham, Lawrence K. Kalantari, Darren W. Karst and Ira L. Tochner as a general partner of Yucaipa, may be deemed to beneficially own the shares of Common Stock beneficially owned by the Reporting Persons, but disclaims any such ownership (except to the extent of such individual's pecuniary interest therein), and the filing of this statement shall not be construed as an admission that any of Messrs. Burkle, Bernstein, Graham, Kalantari, Karst or Tochner or Ms. Figel is, for the purposes of Section 13(d) or 13(g) of the Act, the beneficial owner of such securities. Each of F4L Equity Partners, FFL Partners, Yucaipa Capital Fund and Yucaipa/F4L Partners, acting through its respective general partner(s), has the sole power to vote or direct the vote, and to dispose or to direct the disposition of the shares of Common Stock beneficially owned by them. In addition, (i) Yucaipa may be deemed to beneficially own the shares of Common Stock directly owned by FFL Partners and Yucaipa/F4L Partners, but disclaims any such ownership (except to the extent of its pecuniary interest therein), (ii) Yucaipa Capital Fund may be deemed to beneficially own the shares of Common Stock directly owned by Yucaipa/F4L Partners, but disclaims any such ownership (except to the extent of its pecuniary interest therein) and (iii) Ronald W. Burkle may be deemed to beneficially own the shares of Common Stock directly owned by Yucaipa, Arizona Partners, Smitty's Partners, Smitty's Partners II, SSV Partners, F4L Equity Partners, FFL Partners, Foundation, Yucaipa Capital Fund and Yucaipa/F4L Partners, but disclaims any such ownership (except to the extent of his pecuniary interest therein). Ronald W. Burkle has the sole power to vote or direct the vote, and to dispose or to direct the disposition of shares of Common Stock beneficially held by him. Foundation, acting through its board of directors, has the sole power to vote or direct the vote, and to dispose or direct the disposition of the shares of Common Stock beneficially owned by it. (Page 16 of 23) 17 Item 5 (c) is restated in its entirety as follows: (c) Except as described in Item 4 above, there have not been any transactions in the Common Stock effected by or for the account of the Reporting Persons during the past 60 days. Item 5(e) is restated in its entirety as follows: Not applicable. Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer. Item 6 is restated in its entirety as follows: In connection with the Fred Meyer-Smith's Merger, (i) Ronald W. Burkle was elected Chairman of the Board of Directors of Fred Meyer, (ii) Fred Meyer and certain of the Reporting Persons entered into the Smith's Registration Rights Agreement (as defined below), (iii) Fred Meyer and Yucaipa entered into a Supplemental Warrant Agreement as described below and (iv) Fred Meyer and Yucaipa LLC, entered into a Management Services Agreement described below. In connection with the Fred Meyer-Food 4 Less Merger, (i) the Smith's Registration Rights Agreement was amended as described below and (ii) Fred Meyer, certain of the Reporting Persons and certain other persons entered into the Food 4 Less Registration Rights Agreement described below. In connection with the execution of the Fred Meyer-Kroger Merger Agreement, Kroger and the Reporting Persons entered into the Voting Agreement described below. THE MANAGEMENT SERVICES AGREEMENT On the Fred Meyer-Smith's Merger Closing Date, Fred Meyer entered into the Management Services Agreement with Yucaipa LLC. Under the terms of the Management Services Agreement, Yucaipa LLC, through its members, employees or other designated representatives or agents, provides Fred Meyer and its subsidiaries, subject to the supervision of Fred Meyer's Board of Directors, management consultation and advice and Mr. Burkle serves as the Chairman of Fred Meyer's Board of Directors. In addition, the Management Services Agreement restricts the ability of Yucaipa LLC and its affiliates to (a) enter into certain business combination or other transactions relating to Fred Meyer, (b) acquire voting securities of Fred Meyer in excess of 15% of Fred Meyer's outstanding voting securities, (c) participate in any proxy solicitation with respect to such voting securities or (d) otherwise act to control or influence the management, Board of Directors or policies of Fred Meyer. The foregoing summary of the Management Services Agreement is qualified in its entirety by reference to the agreement which is attached hereto as an exhibit and incorporated herein by reference. THE SUPPLEMENTAL WARRANT AGREEMENT On May 23, 1996, Smith's issued to Yucaipa warrants to purchase 1,842,555 shares of Class C Common Stock, par value $.01 per share (the "Smith's Class C Common Stock"), of Smith's (the "Warrants") at an initial exercise price of $50.00 per share. On the Fred Meyer-Smith's Merger Closing Date, Fred Meyer executed the (Page 17 of 23) 18 Supplemental Warrant Agreement providing that any holder of a Warrant will have the right until the expiration date thereof to exercise such Warrant at the existing exercise price for the number of shares of Common Stock to which a holder of the number of shares of Smith's Class C Common Stock that would have otherwise been deliverable upon the exercise of such Warrant would have been entitled pursuant to the Fred Meyer-Smith's Merger Agreement if such Warrant had been exercised in full immediately prior to the effective time of the Fred Meyer-Smith's Merger. One-half of the Warrants are exercisable at the election of Yucaipa on or prior to May 23, 2005, and one-half of the Warrants are exercisable at the election or Yucaipa on or prior to May 23, 2006. The Warrants are exercisable for an aggregate of 3,869,366 shares of Common Stock at an exercise price of approximately $23.81 per share, for an aggregate purchase price of $92,127,750. The forgoing summary of the Supplemental Warrant Agreement is qualified in its entirety by reference to the agreement which is attached hereto an exhibit and incorporated herein by reference. THE SMITH'S REGISTRATION RIGHTS AGREEMENT On the Fred Meyer-Smith's Merger Closing Date, Fred Meyer entered into a registration rights agreement (the "Smith's Registration Rights Agreement") with Yucaipa, Arizona Partners, Smitty's Partners, Smitty's Partners II, SSV Partners and certain other persons, each of which received shares of Common Stock in the Fred Meyer-Smith's Merger. Under the terms of the Registration Rights Agreement, the holders of a majority of the Registrable Securities (as defined in the Smith's Registration Rights Agreement) held by Yucaipa and its affiliates and their respective transferees (collectively, the "Yucaipa Holder Group") are entitled, subject to certain restrictions, to two written requests upon Fred Meyer for the registration under the Securities Act of 1933, as amended (the "Securities Act") of all or part of their shares of Registrable Securities. In addition, the Smith's Registration Rights Agreement also grants certain "piggyback" and "shelf" registration rights to the Yucaipa Holder Group. Fred Meyer will be obligated to pay its expenses associated with registration of the Registrable Securities, regardless of whether any registration statement required by the Registration Rights Agreement becomes effective. In addition, Fred Meyer will provide customary securities law indemnification to any party who participates in any registration effected under the Smith's Registration Rights Agreement. On the Fred Meyer-Food 4 Less Merger Closing Date, the Smith's Registration Rights Agreement was amended to provide, among other things, that shares of Common Stock acquired by Yucaipa, Ronald W. Burkle, (Page 18 of 23) 19 F4L Equity Partners, FFL Partners, Yucaipa Capital Fund and Yucaipa/F4L Partners in the Fred Meyer-Food 4 Less Merger are "registrable securities" under the Smith's Registration Rights Agreement. The foregoing summaries of the Smith's Registration Rights Agreement and the Amendment thereto are qualified in their entirety by reference to the agreements which are attached hereto as exhibits and incorporated herein by reference. THE FOOD 4 LESS REGISTRATION RIGHTS AGREEMENT On the Fred Meyer-Food 4 Less Merger Closing Date, the Company entered into a Registration Rights Agreement with F4L Equity Partners, Ronald W. Burkle, FFL Partners, Yucaipa Capital Fund, Yucaipa, Yucaipa/F4L Partners, Apollo Investment Fund, L.P., Apollo Investment Fund III, L.P., Apollo UK Partners III, L.P., Apollo Overseas Partners III, L.P. and F4L/AB Investors (the "Food 4 Less Registration Rights Agreement"). Under the terms of the Food 4 Less Registration Rights Agreement, Fred Meyer has filed with the Commission a shelf registration statement on Form S-3 that registers for possible resale all of the Common Stock acquired by those parties pursuant to the Fred Meyer-Food 4 Less Merger. The Company is obligated to keep such shelf registration statement effective, subject to certain conditions, until the one year anniversary date (the "Shelf Termination Date") of the date such shelf registration statement has been declared effective. Fred Meyer has agreed to pay its expenses associated with the registration of Registrable Securities (as defined in the Food 4 Less Registration Rights Agreement). In addition, Fred Meyer will provide customary indemnification to any party who participates in any registration effected under the Food 4 Less Registration Rights Agreement. The foregoing summary of the Food 4 Less Registration Rights Agreement is qualified in its entirety by reference to the agreement which is attached hereto as an exhibit and incorporated herein by reference. VOTING AGREEMENT On October 18, 1998, Fred Meyer, Kroger and Jobsite Holdings entered into the Fred Meyer-Kroger Merger Agreement. Concurrently with the execution of the Fred Meyer-Kroger Merger Agreement, the Reporting Persons entered into the Voting Agreement with Kroger pursuant to which each Reporting Person agreed, among other things, that, at any meeting of stockholders of Fred Meyer and in any action by consent of the stockholders of Fred Meyer, to vote or, if applicable, give consent with respect to all Subject Shares (as defined in the Voting Agreement) held by such Reporting Person on the record date applicable to the meeting or consent in favor of the Fred Meyer-Kroger Merger Agreement and the Fred Meyer-Kroger Merger. In addition, (i) the Reporting Persons agreed to grant, at the request of Kroger, an irrevocable proxy appointing Kroger to vote or, if applicable, give consent with respect to all Subject Shares with regard to the transactions contemplated by the Fred Meyer-Kroger Merger Agreement and (ii) Kroger agreed to assume the obligations of Fred Meyer under the Smith's Registration Rights Agreement. As of October 28, 1998, the shares subject to voting agreements, including the Voting Agreement, represented approximately 9.5% of the aggregate voting power of Fred Meyer. The foregoing summary of the Voting Agreement is qualified in its entirety by reference to the agreement which is attached hereto as an exhibit and incorporated herein by reference. (Page 19 of 23) 20 Item 7. Material to be Filed as Exhibits. Exhibit 99.1 Agreement and Plan of Merger, dated as of October 18, 1998, by and between The Kroger Co., Jobsite Holdings, Inc. and Fred Meyer, Inc. (Incorporated by reference to Exhibit 99.1 to Fred Meyer's Report on Form 8-K, Number 1-13339). Exhibit 99.2 Management Services Agreement, dated as of September 9, 1997, by and between Fred Meyer, Inc. and The Yucaipa Companies LLC. (Incorporated by reference to Exhibit 1 to the Reporting Persons' Statement on Schedule 13D dated September 9, 1997). Exhibit 99.3 Supplemental Warrant Agreement, dated as of September 9, 1997, by and between Fred Meyer, Inc. and The Yucaipa Companies. (Incorporated by reference to Exhibit 2 to the Reporting Persons' Statement on Schedule 13D dated September 9, 1997). Exhibit 99.4 Registration Rights Agreement, dated as of September 9, 1997, by and between Fred Meyer, Inc. and the parties listed on the signature pages thereto. (Incorporated by reference to Exhibit 3 to the Reporting Persons' Statement on Schedule 13D dated September 9, 1997). Exhibit 99.5 Amendment to Registration Rights Agreement, dated as of March 10, 1998, by and among Fred Meyer, Inc. and the persons listed on the signature pages thereto. (Incorporated by reference to Exhibit 99.2 to Amendment No. 2 to the Reporting Persons' Statement on Schedule 13D date March 10, 1998). Exhibit 99.6 Registration Rights Agreement, dated as of March 10, 1998, by and among Fred Meyer, Inc. and the persons listed on the signature pages thereto. (Incorporated by reference to Exhibit 99.1 to Amendment No. 2 to the Reporting Persons' Statement on Schedule 13D dated March 10, 1998). Exhibit 99.7 Voting Agreement, dated as of October 18, 1998, by and among The Kroger Co. and the parties listed on the signature pages thereto. (Page 20 of 23) 21 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 28, 1998 Yucaipa Arizona Partners, L.P. Yucaipa Smitty's Partners, L.P. Yucaipa Smitty's Partners II, L.P. Yucaipa SSV Partners, L.P. FFL Partners Yucaipa/F4L Partners By: The Yucaipa Companies Its General Partner By: /s/ Ronald W. Burkle ------------------------------------------ Name: Ronald W. Burkle Title: General Partner Dated: October 28, 1998 The Yucaipa Companies By: /s/ Ronald W. Burkle ------------------------------------------ Name: Ronald W. Burkle Title: General Partner Dated: October 28, 1998 F4L Equity Partners, L.P. Yucaipa Capital Fund By: Yucaipa Capital Advisors, Inc. Its General Partner By: /s/ Ronald W. Burkle ------------------------------------------ Name: Ronald W. Burkle Title: Dated: October 28, 1998 Fred Meyer/Smith's Foundation By: /s/ Ronald W. Burkle ------------------------------------------ Name: Ronald W. Burkle Title: (Page 21 of 23) 22 Dated: October 28, 1998 /s/ Ronald W. Burkle ------------------------------------------ Ronald W. Burkle (Page 22 of 23) 23 EXHIBIT INDEX Exhibit 99.1 Agreement and Plan of Merger, dated as of October 18, 1998, by and between The Kroger Co., Jobsite Holdings, Inc. and Fred Meyer, Inc. (Incorporated by reference to Exhibit 99.1 to Fred Meyer's Report on Form 8-K, Number 1-13339). Exhibit 99.2 Management Services Agreement, dated as of September 9, 1997, by and between Fred Meyer, Inc. and The Yucaipa Companies LLC. (Incorporated by reference to Exhibit 1 to the Reporting Persons' Statement on Schedule 13D dated September 9, 1997). Exhibit 99.3 Supplemental Warrant Agreement, dated as of September 9, 1997, by and between Fred Meyer, Inc. and The Yucaipa Companies. (Incorporated by reference to Exhibit 2 to the Reporting Persons' Statement on Schedule 13D dated September 9, 1997). Exhibit 99.4 Registration Rights Agreement, dated as of September 9, 1997, by and between Fred Meyer, Inc. and the parties listed on the signature pages thereto. (Incorporated by reference to Exhibit 3 to the Reporting Persons' Statement on Schedule 13D dated September 9, 1997). Exhibit 99.5 Amendment to Registration Rights Agreement, dated as of March 10, 1998, by and among Fred Meyer, Inc. and the persons listed on the signature pages thereto. (Incorporated by reference to Exhibit 99.2 to Amendment No. 2 to the Reporting Persons' Statement on Schedule 13D date March 10, 1998). Exhibit 99.6 Registration Rights Agreement, dated as of March 10, 1998, by and among Fred Meyer, Inc. and the persons listed on the signature pages thereto. (Incorporated by reference to Exhibit 99.1 to Amendment No. 2 to the Reporting Persons' Statement on Schedule 13D dated March 10, 1998). Exhibit 99.7 Voting Agreement, dated as of October 18, 1998, by and among The Kroger Co. and the parties listed on the signature pages thereto. (Page 23 of 23) EX-99.7 2 VOTING AGREEMENT DATED AS OF OCTOBER 18, 1998 1 EXHIBIT 99.7 VOTING AGREEMENT VOTING AGREEMENT, dated as of October 18, 1998 (this "Agreement"), among the stockholders identified on Annex A (each, a "Stockholder"; collectively, the "Stockholders") and The Kroger Co., an Ohio corporation ("Kroger"). WHEREAS, Fred Meyer, Inc., a Delaware corporation ("Fred Meyer"), Kroger and Jobsite Holdings, Inc., a Delaware corporation and a wholly owned subsidiary of Kroger ("Merger Sub"), are contemporaneously entering into an Agreement and Plan of Merger, dated as of this date (the "Merger Agreement"), which provides, among other things, for the merger of Merger Sub with and into Fred Meyer (the "Merger"); WHEREAS, as a condition to their willingness to enter into the Merger Agreement, Kroger and Merger Sub have requested that the Stockholders make certain agreements with respect to certain shares of Common Stock, par value $.01 per share ("Shares"), of Fred Meyer beneficially owned by the Stockholders, upon the terms and subject to the conditions of this Agreement; and WHEREAS, in order to induce Kroger and Merger Sub to enter into the Merger Agreement, the Stockholders are willing to make certain agreements with respect to the Subject Shares (as defined); NOW, THEREFORE, in consideration of the promises and the mutual covenants and agreements set forth in this Agreement, the parties agree as follows: 1. Voting Agreements; Proxy. (a) For so long as this Agreement is in effect, in any meeting of stockholders of Fred Meyer, and in any action by consent of the stockholders of Fred Meyer, each Stockholder shall vote, or, if applicable, give consents with respect to, all of the Subject Shares that are held by that Stockholder on the record date applicable to the meeting or consent in favor of the Merger Agreement and the Merger contemplated by the Merger Agreement, as the Merger Agreement may be modified or amended from time to time in a manner not adverse to the Stockholders. Each Stockholder shall use his best efforts to cast that Stockholder's vote or give that Stockholder's consent in accordance with the procedures communicated to that Stockholder by Fred Meyer relating thereto so that the vote or consent shall be duly counted for purposes of determining that a quorum is present and for purposes of recording the results of that vote or consent. (b) Upon the reasonable written request of Kroger, in furtherance of the transactions contemplated in this Agreement and by the Merger Agreement and in order to secure the performance of each Stockholder's duties under Section 1(a) of this Agreement, each Stockholder shall promptly execute, in accordance with the provisions of Section 212 of the Delaware General Corporation Law, and deliver to Kroger an 2 irrevocable proxy, substantially in the form attached as Exhibit A, and irrevocably appoint Kroger or its designees, with full power of substitution, its attorney and proxy to vote or, if applicable, to give consent with respect to, all Shares constituting Subject Shares at the time of the relevant record date with regard to any of the matters referred to in paragraph (a) above at any meeting of the stockholders of Fred Meyer, or in connection with any action by written consent by the stockholders of Fred Meyer. Each Stockholder acknowledges and agrees that this proxy, if and when given, shall be coupled with an interest, shall constitute, among other things, an inducement for Kroger to enter into the Merger Agreement, shall be irrevocable and shall not be terminated by operation of law or otherwise upon the occurrence of any event and that no subsequent proxies with respect to such Subject Shares shall be given (and if given shall not be effective); provided, however, that any such proxy shall terminate automatically and without further action on behalf of the Stockholders upon the termination of this Agreement. 2. Covenants. For so long as this Agreement is in effect, each Stockholder agrees not to (i) sell, transfer, pledge, assign, hypothecate, encumber, tender or otherwise dispose of, or enter into any contract with respect to the sale, transfer, pledge, assignment, hypothecation, encumbrance, tender or other disposition of (each such disposition or contract, a "Transfer"), a number of Subject Shares which, when aggregated with all Transfers made after the date hereof by other Stockholders who are party to this Agreement, would exceed 10% of the total number of (A) Subject Shares set forth on Schedule A hereto plus (B) any Shares the Stockholders then have the right to acquire, or will have the right to acquire within 60 days, pursuant to options to purchase Shares granted to the Stockholders by Fred Meyer; (ii) grant any proxies with respect to any shares that then constitute Subject Shares, deposit any of the Subject Shares into a voting trust or enter into a voting or option agreement with respect to any of the Subject Shares; (iii) subject to Section 6, directly or indirectly, solicit, initiate, encourage or otherwise facilitate any inquiries or the making of any proposal or offer with respect to an Acquisition Proposal (as defined in the Merger Agreement) or engage in any negotiation concerning, or provide any confidential information or data to, or have any discussions with any person relating to, an Acquisition Proposal; or (iv) take any action which would make any representation or warranty of any Stockholder in this Agreement untrue or incorrect or prevent, burden or materially delay the consummation of the transactions contemplated by this Agreement; provided, however, that nothing in the foregoing provisions of this Section 2 shall prohibit any Stockholder from effecting any Transfer of Subject Shares (A) pursuant to any bona fide charitable gift or by will or applicable laws of descent and distribution, (B) for estate planning purposes, if the transferee pursuant to this clause (B) agrees in writing to be bound by the provisions of this agreement, or (C) pursuant to a pledge for purposes of securing customary margin or similar loans or pursuant to the writing of options or in connection with any hedging, derivative or similar transaction (and taking other necessary or customary steps related thereto, including, without limitation, Transferring any certificate evidencing the shares to a lender or trustee or a nominee thereof), if notwithstanding such Transfer made pursuant to this clause (C), -2- 3 the Stockholder retains the power to vote such Shares in accordance with the terms of this Agreement and for as long as this Agreement is in effect. No Transfer made pursuant to the proviso of the immediately preceding sentence shall be counted in determining whether the Stockholders are in compliance with the 10% limitation set forth in clause (i) of the immediately preceding sentence. Notwithstanding anything to the contrary contained in this Agreement, no Stockholder shall effect any Transfer of Subject Shares that would prevent the business combination to be effected pursuant to the Merger from being accounted for as a "pooling-of-interests" under GAAP (as defined in the Merger Agreement) or the rules and regulations of the SEC (as defined in the Merger Agreement). As used in this Agreement, "person" shall have the meaning specified in Sections 3(a)(9) and 13(d)(3) of the Securities Exchange Act of 1934, as amended. 3. Representations and Warranties of Stockholders. Each Stockholder severally and not jointly represents and warrants to Kroger that: (a) Capacity; No Violations. The Stockholder has the legal capacity to enter into this Agreement and to consummate the transactions contemplated by this Agreement. This Agreement has been duly executed and delivered by the Stockholder and constitutes a valid and binding agreement of the Stockholder enforceable against the Stockholder in accordance with its terms except as such enforceability may be limited by applicable bankruptcy, insolvency and similar laws affecting creditors' rights generally and general principles of equity (whether considered in a proceeding in equity or at law). The execution, delivery and performance by the Stockholder of this Agreement will not (i) conflict with, require a consent, waiver or approval under, or result in a breach or default under, any of the terms of any contract, commitment or other obligation to which the Stockholder is a party or by which the Stockholder is bound; (ii) violate any order, writ, injunction, decree or statute, or any law, rule or regulation applicable to the Stockholder or the Subject Shares; or (iii) result in the creation of, or impose any obligation on the Stockholder to create, any Lien upon the Subject Shares that would prevent the Stockholder from voting the Subject Shares. In this Agreement, "Lien" shall mean any lien, pledge, security interest, claim, third party right or other encumbrance. (b) Subject Shares. As of the date of this Agreement, the Stockholder is the beneficial owner of and has the power to vote or direct the voting of the Subject Shares free and clear of any Liens that would prevent the Stockholder from voting such Subject Shares. As of the date of this Agreement, the Subject Shares are the only shares of any class of capital stock of Fred Meyer which the Stockholder has the right, power or authority (sole or shared) to sell or vote, and, other than options or warrants to purchase Shares held by the Stockholder as of this date, the Stockholder does not have any right to acquire, nor is it the beneficial owner of, any other shares of any class of capital stock of Fred Meyer or any securities convertible into or exchangeable or exercisable for any shares of any class of capital stock of Fred Meyer. The Stockholder is not a party to any -3- 4 contracts (including proxies, voting trusts or voting agreements) that would prevent the Stockholder from voting the Subject Shares. 4. Expenses. Each party to this Agreement shall pay its own expenses incurred in connection with this Agreement. 5. Specific Performance. The Stockholder acknowledges and agrees that if he fails to perform any of its obligations under this Agreement, immediate and irreparable harm or injury would be caused to Kroger for which money damages would not be an adequate remedy. In that event, the Stockholder agrees that Kroger shall have the right, in addition to any other rights it may have, to specific performance of this Agreement. Accordingly, if Kroger should institute an action or proceeding seeking specific enforcement of the provisions of this Agreement, the Stockholder hereby waives the claim or defense that Kroger has an adequate remedy at law and hereby agrees not to assert in that action or proceeding the claim or defense that a remedy at law exists. The Stockholder further agrees to waive any requirements for the securing or posting of any bond in connection with obtaining any equitable relief. 6. Stockholder Capacity. No person bound by this Agreement who is or becomes during the term hereof a director or officer of the Company makes any agreement or understanding herein in his capacity as such director or officer. Each Stockholder signs solely in his capacity as the beneficial owner of, or the general partner of a partnership which is the beneficial owner of, that Stockholder's Subject Shares and nothing herein shall limit or affect any actions taken by a Stockholder in his or its capacity as an officer or director of Fred Meyer to the extent specifically permitted by the Merger Agreement. Nothing in this Agreement shall be deemed to constitute a transfer of the beneficial ownership of the Subject Shares by any Stockholder. 7. Registration Rights Agreement. Kroger acknowledges that Fred Meyer and the Stockholders are party to a Registration Rights Agreement dated as of September 9, 1997, as amended by the Amendment to Registration Rights Agreement dated March 10, 1998 (as amended, the "Stockholder Registration Rights Agreement") pursuant to which Fred Meyer agreed to provide certain registration rights to the Stockholders. Kroger hereby agrees that, effective as of the Effective Time of the Merger, it shall assume the obligations of Fred Meyer under the Stockholder Registration Rights Agreement. 8. Notices. All notices and other communications given or made pursuant this Agreement shall be in writing and shall be deemed to have been duly given or made as of the date of receipt and shall be delivered personally or mailed by registered or certified mail (postage prepaid, return receipt requested), sent by overnight courier or sent by telecopy, to the applicable party at the following addresses or telecopy numbers (or at any other address or telecopy number for a party as shall be specified by like notice): -4- 5 If to Kroger: The Kroger Corp. 1014 Vine Street Cincinnati, Ohio 45202 Attention: Paul W. Heldman, Esq. Telecopy: (513) 762-1400 With a copy to: Fried Frank Harris Shriver & Jacobson 1 New York Plaza New York, New York 10004 Attention: Arthur Fleischer, Jr., Esq. Telecopy: (212) 859-4000 If to any Stockholder: The Yucaipa Companies, LLC 1000 Santa Monica Boulevard, Fifth Floor Los Angeles, California 90067 Attention: Ronald W. Burkle Telecopy: (310) 789-7201 With a copy to: Latham & Watkins 633 West Fifth Street, Suite 4000 Los Angeles, California 90071 Attention: Thomas C. Sadler, Esq. Telecopy: (213) 891-8763 With a copy to: Cleary, Gottlieb, Steen & Hamilton One Liberty Plaza New York, New York 10006 Attention: Daniel S. Sternberg, Esq. Telecopy: (212) 225-3999 9. Parties in Interest. This Agreement shall inure to the benefit of and be binding upon the parties and their respective successors and assigns; provided, however, that any successor in interest or assignee shall agree to be bound by the provisions of this Agreement. Nothing in this Agreement, express or implied, is intended to confer upon -5- 6 any Person other than Kroger, the Stockholders or their successors or assigns, any rights or remedies under, or by reason, of this Agreement. 10. Entire Agreement; Amendments. This Agreement contains the entire agreement between the Stockholders and Kroger with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous agreements and understandings, oral or written, with respect to these transactions. This Agreement may not be changed, amended or modified orally, but may be changed only by an agreement in writing signed by the party against whom any waiver, change, amendment, modification or discharge may be sought. 11. Assignment. No party to this Agreement may assign any of its rights or obligations under this Agreement without the prior written consent of the other party to this Agreement, except that (a) Kroger may assign its rights and obligations under this Agreement to any of its direct or indirect wholly owned subsidiaries (including Merger Sub), but no transfer shall relieve Kroger of its obligations under this Agreement if the transferee does not perform its obligations, and (b) any Stockholder may transfer Subject Shares to the extent permitted by Section 2 of this Agreement. 12. Headings. The section headings in this Agreement are for convenience only and shall not affect the construction of this Agreement. 13. Counterparts. This Agreement may be executed in any number of counterparts, each of which, when executed, shall be deemed to be an original and all of which together shall constitute one and the same document. 14. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware without regard to its principles of conflicts of laws. 15. Termination. This Agreement shall terminate automatically and without further action on behalf of any party at the earlier of (i) the Effective Time (as defined in the Merger Agreement) and (ii) the date the Merger Agreement is terminated pursuant to its terms. 16. Subject Shares. The term "Subject Shares" shall mean the Shares set forth opposite each Stockholder's name on Schedule A hereto, together with any Shares of capital stock of Fred Meyer acquired by the Stockholder after the date hereof over which the Stockholder has the power to vote or power to direct the voting. -6- 7 IN WITNESS WHEREOF, Kroger and the Stockholders have caused this Agreement to be duly executed and delivered on the day and year first above written. THE KROGER CO. By: /s/ Paul Heldman ----------------------------------------- Name: Title: THE YUCAIPA COMPANIES By: /s/ Ronald W. Burkle ----------------------------------------- Name: Ronald W. Burkle Title: General Partner YUCAIPA SSV PARTNERS, L.P. By: The Yucaipa Companies Its: General Partner By: /s/ Ronald W. Burkle ----------------------------------------- Name: Ronald W. Burkle Title: General Partner YUCAIPA SMITTY'S PARTNERS, L.P. By: The Yucaipa Companies Its: General Partner By: /s/ Ronald W. Burkle ----------------------------------------- Name: Ronald W. Burkle Title: General Partner YUCAIPA SMITTY'S PARTNERS II, L.P. By: The Yucaipa Companies Its: General Partner By: /s/ Ronald W. Burkle ----------------------------------------- Name: Ronald W. Burkle Title: General Partner -7- 8 YUCAIPA ARIZONA PARTNERS, L.P. By: The Yucaipa Companies Its: General Partner By: /s/ Ronald W. Burkle ----------------------------------------- Name: Ronald W. Burkle Title: General Partner F4L EQUITY PARTNERS, L.P. By: Yucaipa Capital Advisors, Inc. as general partner By: /s/ Ronald W. Burkle ----------------------------------------- Name: Title: RONALD W. BURKLE /s/ Ronald W. Burkle ----------------------------------------- Ronald W. Burkle, as an individual FFL PARTNERS By: /s/ Ronald W. Burkle ----------------------------------------- Name: Ronald W. Burkle Title: YUCAIPA CAPITAL FUND, L.P. By: Yucaipa Capital Advisors, Inc. as general partner By: /s/ Ronald W. Burkle ------------------------------------ Name: Ronald W. Burkle Title: -8- 9 YUCAIPA/F4L PARTNERS By: The Yucaipa Companies as general partner By: /s/ Ronald W. Burkle ------------------------------------ Name: Ronald W. Burkle Title: By: Yucaipa Capital Fund, L.P., as general partner By: Yucaipa Capital Advisors, Inc. as general partner By: /s/ Ronald W. Burkle ------------------------------ Name: Ronald W. Burkle Title: -9- 10 SCHEDULE A
STOCKHOLDER NAME SHARES OWNED - ---------------- ------------ The Yucaipa Companies................................................. 4,856,211(*) Yucaipa SSV Partners, L.P............................................. 2,744,595 Yucaipa Smitty's Partners, L.P........................................ 631,400 Yucaipa Smitty's Partners II, L.P..................................... 287,264 Yucaipa Arizona Partners, L.P......................................... 574,522 F4L Equity Partners, L.P.............................................. 3,798,526 Ronald W. Burkle...................................................... 827,321 FFL Partners.......................................................... 365,429 Yucaipa Capital Fund, L.P............................................. 335,712 Yucaipa/F4L Partners.................................................. 79,719 ----------- 14,500,699
- ---------- (*) Includes 3,869,366 shares issuable upon exercise of a currently-exercisable warrant. -10- 11 EXHIBIT A IRREVOCABLE PROXY In order to secure the performance of the duties of the undersigned pursuant to the Director Voting Agreement, dated as of October 18, 1998 (the "Voting Agreement") between the undersigned and The Kroger Co., an Ohio corporation ("Kroger"), a copy of such agreement being attached hereto and incorporated by reference herein, the undersigned hereby irrevocably appoints Joseph A. Pichler, John T. La Macchia and T. Ballard Morton, Jr., and each of them, the attorneys, agents and proxies, with full power of substitution in each of them, for the undersigned and in the name, place and stead of the undersigned, to vote or, if applicable, to give written consent, in such manner as each such attorney, agent and proxy or his substitute shall in his sole discretion deem proper to record such vote (or consent) in the manner set forth in Section 1 of the Voting Agreement with respect to all shares of Common Stock, par value $.01 per share (the "Shares"), of Fred Meyer, Inc., a Delaware corporation (the "Company"), which the undersigned is or may be entitled to vote at any meeting of the Company held after the date hereof, whether annual or special and whether or to an adjourned meeting, or, if applicable, to give written consent with respect thereto. This Proxy is coupled with an interest, shall be irrevocable and binding on any successor in interest of the undersigned and shall not be terminated by operation of law or otherwise upon the occurrence of any event (other than as provided in Section 15 of the Voting Agreement), including, without limitation, the death or incapacity of the undersigned. This Proxy shall operate to revoke any prior proxy as to the Shares heretofore granted by the undersigned. This Proxy shall terminate upon the termination of the Voting Agreement. This Proxy has been executed in accordance with Section 212 of the Delaware General Corporation Law. Dated: October __, 1998 ________________________ [Name] -11- -----END PRIVACY-ENHANCED MESSAGE-----