-----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, Jtm2LV7zCdrzswIQ6YuPXVXrG9i+NeunEMUZw8K7zlym8ylXvuOeqzAUjRskIq4v kuiz0W1tvkjJvfccTlG6GA== 0000945723-96-000013.txt : 19961104 0000945723-96-000013.hdr.sgml : 19961104 ACCESSION NUMBER: 0000945723-96-000013 CONFORMED SUBMISSION TYPE: 8-A12G/A PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 19961101 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: KASH N KARRY FOOD STORES INC CENTRAL INDEX KEY: 0000842913 STANDARD INDUSTRIAL CLASSIFICATION: RETAIL-GROCERY STORES [5411] IRS NUMBER: 954161591 STATE OF INCORPORATION: DE FISCAL YEAR END: 0730 FILING VALUES: FORM TYPE: 8-A12G/A SEC ACT: 1934 Act SEC FILE NUMBER: 000-25260 FILM NUMBER: 96652460 BUSINESS ADDRESS: STREET 1: 6422 HARNEY RD CITY: TAMPA STATE: FL ZIP: 33610 BUSINESS PHONE: 8136210276 8-A12G/A 1 SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM 8-A/A (Amendment No. 3) FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES PURSUANT TO SECTION 12(b) OR (g) OF THE SECURITIES EXCHANGE ACT OF 1934 KASH N' KARRY FOOD STORES, INC. (Exact name of registrant as specified in its charter) DELAWARE 0-25260 95-4161591 (State of incorporation (Commission (IRS Employers or organization) File Number Identification No.) 6422 HARNEY ROAD, TAMPA, FLORIDA 33610 (Address of principal executive offices) (Zip Code) If this Form relates to the If this Form relates to the registration of a class of registration of a class of debt securities and is debt securities and is to effective upon filing pursuant become effective to General Instruction A(c)(1) simultaneously with the please check the following effectiveness of a concurrent box. [] registration statement under the Securities Act of 1933 pursuant to General Instruction A(c)(2) please check the following box. [] Securities to be registered pursuant to Section 12(b) of the Act: NONE Title of Each Class Name of Each Exchange on Which to be so Registered: Each Class is to be Registered NONE NONE Securities to be registered pursuant to Section 12(g) of the Act: PREFERRED SHARE PURCHASE RIGHTS (Title of Class) 2 The undersigned registrant hereby amends Item 1 of its Registration on Form 8-A, filed on April 17, 1995, as amended on April 25, 1995 and June 14, 1995 (as so amended, the "Form 8-A"), by adding the information set forth below. The registrant also amends Item 2 of the Form 8-A by adding the Second Amendment to the Rights Agreement as Exhibit 6. Item 1. Description of Registrant's Securities to be Registered. Second Amendment to the Rights Agreement On October 31, 1996, Food Lion, Inc., a North Carolina corporation ("Parent"), KK Acquisition Corp., a Delaware corporation ("Sub") and a wholly-owned subsidiary of Parent, and Kash n' Karry Food Stores, Inc., a Delaware corporation (the "Company"), entered into an Agreement and Plan of Merger, dated as of October 31, 1996 (the "Merger Agreement"), providing, among other things, for the merger of Sub with and into the Company, whereupon the Company will become a wholly-owned subsidiary of Parent. On October 30, 1996, immediately prior to the execution of the Merger Agreement, the Company and Fleet National Bank (successor to Shawmut Bank Connecticut, N.A.), as Rights Agent (the "Rights Agent") entered into the Second Amendment (the "Second Amendment") to the Rights Agreement between the Company and the Rights Agent (the "Rights Agreement") dated as of April 13, 1995 and amended as of June 13, 1996. The Second Amendment provides, among other things, that (a) neither the Merger Agreement nor the Stockholders Agreement dated as of October 31, 1996 by and among the Company, Parent, Sub and the stockholders of the Company signatory thereto (the "Stockholders Agreement"), nor the consummation of the transactions contemplated thereby, will cause (i) Parent, Sub or any of their affiliates or associates to have beneficial ownership of any Shares solely as a result of any such event, (ii) Parent or Sub or any of their affiliates or associates to be deemed an "Acquiring Person" under the Rights Agreement or (iii) the "Shares Acquisition Date" or the "Distribution Date" under the Rights Agreement to occur upon any such event, and (b) the "Rights" (each of the above as defined in the Rights Agreement) will expire immediately prior to the occurrence of any of certain events, including (i) the closing of the purchase of Shares pursuant to the exercise of the Stock Option (as defined in the Stockholders Agreement) and (ii) the Effective Time (as defined in the Merger Agreement) of the Merger. A copy of the Second Amendment is available free of charge from the Company. This summary description of the Second Amendment does not purport to be complete and is qualified in its entirety by reference to the Second Amendment which is attached hereto as Exhibit 6 and is incorporated herein by reference. 3 Item 2. Exhibits The undersigned registrant hereby amends Item 2 to the Form by restating Item 2, to read as follows: Exhibit No. Description (1) Rights Agreement dated as of April 13, 1995 between the Company and Shawmut Bank Connecticut, N.A., as Rights Agent (the "Rights Agreement") (previously filed as Exhibit 1 to the Company's Registration Statement on Form 8-A/A dated April 25, 1995, which exhibit is hereby incorporated by reference). (2) Form of Certificate of Designations with respect to Series A Junior Participating Preferred Stock (attached as Exhibit A to the Rights Agreement). (3) Form of Rights Certificate (attached as Exhibit B to the Rights Agreement). (4) Summary of Rights to Purchase Preferred Shares (attached as Exhibit C to the Rights Agreement). (5) First Amendment to the Rights Agreement dated as of June 13, 1995 between the Company and Shawmut Bank Connecticut, N.A., as Rights Agent (previously filed as Exhibit 5 to the Company's Registration Statement on Form 8-A/A dated June 14, 1995, which exhibit is hereby incorporated by reference). (6) Second Amendment to the Rights Agreement dated as of October 30, 1996 between the Company and Fleet National Bank (successor to Shawmut Bank Connecticut, N.A.), as Rights Agent (filed herewith)." 4 SIGNATURES Pursuant to the requirements of Section 12 of the Securities Exchange Act of 1934, the registrant has duly caused this amendment to the registration statement to be signed on its behalf by the undersigned hereunto duly authorized. KASH N' KARRY FOOD STORES, INC. Date: November 1, 1996 By: /s/ Ronald E. Johnson ------------------------------ Name: Ronald E. Johnson Title: Chairman of the Board, President and Chief Executive Officer 5 EXHIBIT INDEX Exhibit Page No. 1. Rights Agreement dated as of April 13, 1995 between the Company and Shawmut Bank Connecticut, N.A., as Rights Agent (the "Rights Agreement") (previously filed as Exhibit 1 to the Company's Registration Statement on Form 8-A/A dated April 25, 1995, which exhibit is hereby incorporated by reference). 2. Form of Certificate of Designations with respect to Series A Junior Participating Preferred Stock (attached as Exhibit A to the Rights Agreement). 3. Form of Rights Certificate (attached as Exhibit B to the Rights Agreement). 4. Summary of Rights to Purchase Preferred Shares (attached as Exhibit C to the Rights Agreement). 5. First Amendment to the Rights Agreement dated as of June 13, 1995 between the Company and Shawmut Bank Connecticut, N.A., as Rights Agent (previously filed as Exhibit 5 to the Company's Registration Statement on Form 8-A/A dated June 14, 1995, which exhibit is hereby incorporated by reference). 6. Second Amendment to the Rights Agreement dated as of October 30, 1996 between the Company and Fleet National Bank (successor to Shawmut Bank Connecticut, N.A.), as Rights Agent (filed herewith)." EX-6 2 SECOND AMENDMENT TO RIGHTS AGREEMENT This Amendment, dated as of October 30, 1996 (the "Amendment"), between Kash n' Karry Food Stores, Inc., a Delaware corporation (the "Company"), and Fleet National Bank (successor to Shawmut Bank Connecticut, N.A.), as rights agent (the "Rights Agent"). WHEREAS, the Company and the Rights Agent are parties to a Rights Agreement dated as of April 13, 1995 and as amended as of June 13, 1995 (as so amended, the "Agreement"); and WHEREAS, pursuant to Section 27 of the Agreement, the Company and the Rights Agent desire to amend the Agreement as set forth below. NOW, THEREFORE, in consideration of the premises and the mutual agreements herein set forth, the parties hereby agree as follows: Section 1. Amendments to Section 1. (a) The definitions of "Beneficial Owner" and "beneficially own" are amended by adding the following at the end thereof: "Notwithstanding anything contained in this Agreement to the contrary, neither Parent, Sub, nor any of their Affiliates or Associates shall be deemed to be the Beneficial Owner of, nor to beneficially own, any of the Common Shares of the Company (1) solely by virtue of the approval, execution or delivery of the Merger Agreement or the execution and delivery of the Stockholders Agreement or the Proxy or (2) solely as a result of the undertaking as to the voting of the Common Shares of the Company described in Section 2 of the Stockholders Agreement or the granting of or the exercise of voting rights under the Proxy." (b) The following definitions are added to Section 1 of the Agreement: ""Sub" shall mean KK Acquisition Corp., a Delaware corporation." ""Parent" shall mean Food Lion, Inc., a North Carolina corporation." ""Merger" shall mean the merger of Sub with and into the Company in accordance with the General Corporation Law of the State of Delaware upon the terms and subject to the conditions set forth in the Merger Agreement." ""Merger Agreement" shall mean the Agreement and Plan of Merger, dated as of October 31, 1996, by and among Parent, 2 Sub and the Company, as the same shall be amended from time to time in accordance with the Merger Agreement." ""Offer" shall mean the tender offer to acquire all the outstanding Common Shares contemplated by the Merger Agreement." ""Stockholders Agreement" shall mean the Stockholders Agreement, dated as of October 31, 1996, by and among Parent, Sub and the owners of Common Shares that are signatories thereto, as the same shall be amended from time to time." ""Proxy" shall mean an Irrevocable Proxy executed and delivered by the owners of Common Shares to Parent pursuant to the Stockholders Agreement. Section 2. Expiration Date. Section 7(a) of the Agreement is hereby amended by removing the word "or" immediately prior to the symbol "(iii)" and by adding to the end thereof in place of the period the following: ", (iv) immediately prior to the acceptance for payment and payment for Common Shares pursuant to the Offer, (v) immediately prior to the closing of the purchase of Common Shares pursuant to the exercise of the Stock Option (as defined in the Stockholders Agreement), or (vi) immediately prior to the Effective Time (as defined in the Merger Agreement) of the Merger; whereupon the Rights shall expire." Section 3. New Section 35. The following is added as a new Section 35 to the Agreement: "Section 35. The Offer and the Merger, etc. Notwithstanding anything in this Agreement to the contrary, none of (a) the approval, execution or delivery of the Merger Agreement or the Stockholders Agreement, (b) the making of the Offer or the acceptance for payment of Common Shares pursuant to the Offer or the giving of a Notice (as defined in the Stockholders Agreement) to exercise the Stock Option or (c) the exercise of voting rights granted under the Proxy shall cause (i) Parent or Sub or any of their Affiliates or Associates to be an Acquiring Person, (ii) a Shares Acquisition Date to occur or (iii) a Distribution Date to occur in accordance with the terms hereof, which Distribution Date, if any, shall instead be indefinitely deferred until such time as the Board of Directors may otherwise determine." 3 Section 4. Severability. If any term, provision, covenant or restriction of this Amendment is held by a court of competent jurisdiction or other authority to be invalid, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions of this Amendment shall remain in full force and effect and shall in no way be affected, impaired or invalidated. Section 5. Governing Law. This Amendment shall be deemed to be a contract made under the laws of the State of Delaware and for all purposes shall be governed by and construed in accordance with the laws of such State applicable to contracts made and to be performed entirely within such State. Section 6. Counterparts. This Amendment may be executed in any number of counterparts and each of such counterparts shall for all purposes be deemed to be an original, and all such counterparts shall together constitute but one and the same instrument. Section 7. Effect of Amendment. Except as expressly modified herein the Agreement shall remain in full force and effect. IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed all as of the day and year first above written. KASH N' KARRY FOOD STORES, INC. By: /s/ Ronald E. Johnson ---------------------------- Name: Ronald E. Johnson Title: Chairman, President and Chief Executive Officer FLEET NATIONAL BANK By: /s/ Kenneth N. Caesar ---------------------------- Name: Kenneth N. Caesar Title: Vice President -----END PRIVACY-ENHANCED MESSAGE-----