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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
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FORM 10-Q
(Mark One)
X QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended September 22, 1999
OR
__ TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
For the transition period from ______________ to _________________
Commission File Number 1-3657
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WINN-DIXIE STORES, INC.
(Exact name of registrant as specified in its charter)
Florida 59-0514290
(State or other jurisdiction of (IRS Employer
incorporation or organization) Identification No.)
5050 Edgewood Court, Jacksonville, Florida 32254-3699
(Address of principal executive offices) (Zip Code)
(904) 783-5000
(Registrant's telephone number, including area code)
Unchanged
(Former name, former address and former fiscal year,
if changed since last report)
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Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. Yes |X| No
As of September 22, 1999, there were 148,628,860 shares outstanding of
the registrant's common stock, $1 par value.
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WINN-DIXIE STORES, INC. AND SUBSIDIARIES
FORM 10-Q
TABLE OF CONTENTS
Part I: Financial Information
Page
Condensed Consolidated Statements of Earnings
(Unaudited), For the 12 Weeks Ended
September 22, 1999 and September 16, 1998 1
Condensed Consolidated Balance Sheets (Unaudited),
September 22, 1999 and June 30, 1999 2
Condensed Consolidated Statements of Cash Flows
(Unaudited), For the 12 Weeks Ended
September 22, 1999 and September 16, 1998 3
Notes to Condensed Consolidated Financial Statements
(Unaudited) 4-7
Management's Discussion and Analysis of Financial
Condition and Results of Operations 8-11
Part II: Other Information
Item 4. Submission of Matters to a Vote of Security Holders 12
Item 5. Other Information13
Item 6. Exhibits and Reports on Form 8-K 13
Signatures 14
<PAGE>
WINN-DIXIE STORES, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF EARNINGS (UNAUDITED)
Amounts in thousands except per share data
For the 12 Weeks Ended
----------------------------------------
Sept. 22, 1999 Sept. 16, 1998
------------------- -------------------
Net sales $ 3,162,171 3,190,755
Cost of sales 2,315,524 2,349,480
--------------- ---------------
Gross profit 846,647 841,275
Operating & administrative expenses 829,250 835,947
--------------- ---------------
Operating income 17,397 5,328
Cash discounts & other income 25,075 26,452
Interest expense (6,587) (8,122)
--------------- ---------------
Earnings before income taxes 35,885 23,658
Provision for income taxes 13,816 9,108
--------------- ---------------
Net earnings $ 22,069 14,550
=============== ===============
Basic earnings per share $ 0.15 0.10
=============== ===============
Diluted earnings per share $ 0.15 0.10
=============== ===============
Dividends per share $ 0.17 0.17
=============== ===============
See accompanying notes to Condensed Consolidated Financial Statements.
Page 1
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WINN-DIXIE STORES, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED BALANCE SHEETS (UNAUDITED)
Amounts in thousands
ASSETS Sept. 22, 1999 June 30, 1999
- ------ -------------- --------------
Current Assets:
- ---------------
Cash and cash equivalents $ 56,271 24,746
Trade and other receivables 101,495 188,314
Merchandise inventories less LIFO reserve of 1,384,769 1,425,098
$220,274 ($217,274 at June 30, 1999)
Deferred income taxes 114,759 112,869
Prepaid expenses 12,136 46,963
------------- ------------
Total current assets 1,669,430 1,797,990
------------- ------------
Investments and other assets 134,136 128,524
Net property, plant and equipment 1,208,761 1,222,633
------------- ------------
Total assets $ 3,012,327 3,149,147
============= ============
LIABILITIES AND SHAREHOLDERS' EQUITY
Current Liabilities:
Accounts payable $ 637,334 662,172
Short-term borrowings 300,000 465,000
Reserve for insurance claims and self-insurance 75,871 75,461
Accrued wages and salaries 106,137 108,826
Accrued rent 119,846 99,734
Accrued expenses 157,346 122,641
Current obligations under capital leases 2,729 2,751
Income taxes 17,540 10,739
------------ ------------
Total current liabilities 1,416,803 1,547,324
------------ ------------
Obligations under capital leases 37,924 38,493
Defined benefit plan 41,945 41,234
Reserve for insurance claims and self-insurance 91,956 92,256
Other liabilities 18,763 18,072
Deferred income taxes 8,914 689
------------ ------------
Shareholders' equity:
Common stock 148,629 148,577
Retained earnings 1,244,366 1,259,597
Accumulated other comprehensive income 3,113 3,069
Associates' stock loans (86) (164)
------------ -------------
Total shareholders' equity 1,396,022 1,411,079
------------ -------------
Total liabilities and shareholders' equity $ 3,012,327 3,149,147
============ =============
See accompanying notes to Condensed Consolidated Financial Statements.
Page 2
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WINN-DIXIE STORES, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS (UNAUDITED)
Amounts in thousands
For the 12 Weeks Ended
FISCAL YEAR-TO-DATE Sept. 22, 1999 Sept. 16, 1998
-------------- --------------
Cash flows from operating activities:
Net earnings $ 22,069 14,550
Adjustments to reconcile net earnings to net cash
Provided by operating activities:
Depreciation and amortization 61,374 78,223
Deferred income taxes 6,362 3,945
Defined benefit plan 711 1,032
Reserve for insurance claims and self-insurance 110 (2,345)
Stock compensation plans 688 1,178
Change in cash from:
Receivables 86,819 (30,704)
Merchandise inventories 40,329 (18,507)
Prepaid expenses 34,827 38,847
Accounts payable (24,817) (67,105)
Income taxes 6,801 4,080
Other current accrued expenses 52,181 42,548
----------- ----------
Net cash provided by operating activities 287,454 65,742
----------- ----------
Cash flows from investing activities:
Purchases of property, plant and equipment, net (46,538) (70,125)
Decrease (increase) in investments and other assets (5,891) 5,291
----------- ----------
Net cash used in investing activities (52,429) (64,834)
----------- ----------
Cash flows from financing activities:
Increase (decrease) in short-term borrowings (165,000) 33,000
Payments on capital lease obligations (640) (694)
Purchase of common stock (61) (74)
Proceeds of sales under associates' stock purchase plan 78 1,401
Dividends paid (25,212) (25,201)
Other (12,665) (9,814)
----------- ----------
Net cash used in financing activities (203,500) (1,382)
----------- ----------
Increase (decrease) in cash and cash equivalents 31,525 (474)
Cash and cash equivalents at beginning of year 24,746 23,566
----------- ----------
Cash and cash equivalents at end of period $ 56,271 23,092
=========== ==========
Supplemental cash flow information:
Interest paid $ 4,233 2,294
Interest and dividends received $ 217 91
Income taxes paid $ 556 1,083
=========== ==========
See accompanying notes to Condensed Consolidated Financial Statements.
Page 3
WINN-DIXIE STORES, INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(UNAUDITED)
(A) Basis of Presentation: Financial information reflects all adjustments,
which, in the opinion of management, are necessary to reflect the results
of operations and financial position for the quarters shown. These
condensed financial statements should be read in conjunction with the
fiscal 1999 Form 10-K Annual Report of the Company. The condensed
consolidated financial statements include the accounts of Winn-Dixie
Stores, Inc. and its subsidiaries, which operate as a major food retailer
in fourteen states and the Bahama Islands.
(B) Change in Estimated Lives: During the second quarter of fiscal 1999, the
Company increased the estimated useful lives used to compute depreciation
for certain assets, principally store equipment (5 to 8 years) and
leaseholds (8 to 15 years). Store equipment and leaseholds associated with
larger, full-service store formats are expected to have a longer life
because of the types of equipment and the expected timing of store
remodels. In addition, the change results in useful lives more consistent
with the predominant industry practices for these types of assets. The
change has been accounted for as a change in estimate and resulted in an
increase in earnings before income tax of $14.4 million ($8.8 million after
tax, or $0.06 per diluted share) for the 12 weeks ended September 22, 1999.
(C) Inventories: Merchandise inventories are stated at the lower of cost or
market, approximately 86% of which are valued under the LIFO method.
(D) LIFO: Results for the quarter reflect a pre-tax LIFO inventory charge of
$3.0 million in fiscal 2000 and $4.0 million in fiscal 1999. If the FIFO
method had been used, current quarter net earnings would have been $23.9
million, or $0.16 per diluted share, as compared with net earnings of $17.0
million, or $0.11 per diluted share in the previous year. An actual
valuation of inventory under the LIFO method can be made only at the end of
each year based on the inventory levels and costs at that time.
Accordingly, interim LIFO calculations must necessarily be based on
management's estimates of expected year-end inventory levels and costs.
Because these are subjected to many forces beyond management's control,
interim results are subject to the final year-end LIFO inventory
valuations.
(E) Comprehensive Income: Comprehensive income for the quarters ended September
22, 1999 and September 16, 1998 was approximately $22.1 million and $12.6
million, respectively. These amounts differ from net income due to changes
in the net unrealized holding gains (losses) generated from
available-for-sale securities.
Page 4
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WINN-DIXIE STORES, INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(UNAUDITED) cont'd.
(F) Credit Arrangements: The Company has an authorized $500.0 million
commercial paper program and short-term lines of credit totaling $570.0
million. On September 22, 1999, there were $175.0 million in commercial
paper and $125.0 million from bank lines of credit outstanding, as compared
to $300.0 million in commercial paper and $165.0 from bank lines of credit
outstanding on June 30, 1999.
(G) Income Taxes: The provision for income taxes reflects management's best
estimate of the effective tax rate expected for the fiscal year. The
effective tax rate for fiscal years 2000 and 1999 is 38.5%.
(H) Earnings Per Share: The following weighted average number of shares of
common stock was used in the calculation for earnings per share. The
diluted weighted average number of shares includes the net shares that
would be issued upon the exercise of stock options using the treasury stock
method.
2000 1999
-------- --------
Basic:
Quarter 148,337,967 148,336,991
Diluted:
Quarter 148,670,495 148,677,114
(I) Common Stock: In October 1999, the Board of Directors formalized the
Company's common stock repurchase program. The program authorizes the
repurchase, on the open market or in private transactions, of up to five
million shares of the Company's outstanding common stock. The Company can
use its discretion on the timing of purchases based on open market
conditions and available funds. To facilitate this program, the Company
sold 1,000,000 put warrants, each of which entitles the holder to purchase
one share of common stock at prices between $32.47 and $34.68. These
warrants expire in December 1999 and the proceeds of $2,654,252 were
credited to equity.
Page 5
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WINN-DIXIE STORES, INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(UNAUDITED) cont'd.
(J) Business Reporting Segments: During fiscal 1999, the Company adopted
Statement of Financial Accounting Standards No. 131, "Disclosure about
Segments of an Enterprise and Related Information" ("SFAS 131"). SFAS 131
provides for the disclosure of financial information disaggregated by the
way management organizes the segments of the enterprise for making
operating decisions. Based on the information monitored by the Company's
operating decision-makers to manage the business, the Company has
identified that its operations are within one reportable segment.
Accordingly, financial information on industry segments is omitted because,
apart from the principal business of operating retail self-service food
stores, the Company has no other industry segments. All sales of the
Company are to customers within the United States and the Bahama Islands.
All assets of the Company are located within the United States and the
Bahamas Islands. Sales and assets related to and located in the Bahama
Islands represents less than 1% of the Company's total sales and assets.
(K) New Accounting Pronouncements: In June 1998, the Financial Accounting
Standards Board issued Statement of Financial Accounting Standards No. 133,
"Accounting for Derivative Instruments and Hedging Activities" ("SFAS
133"). SFAS 133 establishes accounting and reporting standards for
derivative instruments, including certain derivative instruments embedded
in other contracts, and hedging activities. The Company intends to adopt
SFAS 133 in the first quarter of fiscal year 2001. The Company is still
determining how SFAS 133 will impact the financial statements.
(L) Reclassification: Certain prior year amounts have been reclassified to
conform to the current year's presentation.
Page 6
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WINN-DIXIE STORES, INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(UNAUDITED) cont'd.
(M) Litigation: There are pending against the Company various claims and
lawsuits arising in the normal course of business, including suits charging
violations of certain civil rights laws and various proceedings arising
under federal, state or local regulations protecting the environment.
Among the suits charging violations of certain civil rights laws, there are
actions that purport to be class actions, and which allege sexual
harassment, retaliation and/or a pattern and practice of race-based and
gender-based discriminatory treatment of employees and applicants. The
plaintiffs seek, among other relief, certification of the suits as proper
class actions, declaratory judgment that the Company's practices are
unlawful, back pay, front pay, benefits and other compensatory damages,
punitive damages, injunctive relief and reimbursement of attorneys' fees
and costs. The Company is committed to full compliance with all applicable
civil rights laws. Consistent with this commitment, the Company has firm
and long-standing policies in place prohibiting discrimination and
harassment. The Company denies the allegations of the various complaints
and is vigorously defending the actions.
While the ultimate outcome of litigation cannot be predicted with
certainty, in the opinion of management the ultimate resolution of these
actions will not have a material adverse effect on the Company's financial
condition or results of operations.
In July 1999, the Company, without admitting any wrongdoing, reached a
settlement with the named plaintiffs in a discrimination class action
lawsuit filed on behalf of certain female and African-American present and
former associates. The settlement has been preliminarily approved by the U.
S. District Court in Jacksonville, Florida, and the process of class notice
and the receipt of claim forms have begun. The settlement amount is
approximately $33 million, which the Company will pay from accruals over
the next seven years. In the opinion of management, the settlement, if
approved, will not have a material impact on the Company's financial
condition or results of operations.
Page 7
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WINN-DIXIE STORES, INC. AND SUBSIDIARIES
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
This analysis should be read in conjunction with the Condensed Consolidated
Financial Statements.
Results of Operations
Sales for the first quarter of fiscal 2000 were $3.2 billion, a decrease of
$28.5 million or 0.9% compared with the same quarter last year. For the first
quarter, average store sales decreased 1.9%, identical stores sales decreased
3.8%, and comparable store sales decreased 2.7%. The decrease in sales reflects
the increase in competitive activity in our operating area.
During the quarter, the Company opened 7 new stores averaging 53,700 square
feet, closed 11 older stores averaging 41,500 square feet and enlarged or
remodeled 13 store locations, for a total of 1,184 locations in operation on
September 22, 1999, compared to 1,172 last year. As of September 22, 1999,
retail space totaled 52.0 million square feet, a 3.8% increase over the prior
year. There are 30 new stores and 26 store enlargements or remodels under
construction.
Gross profit increased $5.4 million for the quarter. As a percent to sales,
gross profit for the current quarter was 26.8%, compared to 26.4% in the same
quarter of the previous year. The increase in gross profit margin improved with
an increase in the number of larger stores, added service departments and
improved pricing.
Operating and administrative expenses decreased $6.7 million for the current
quarter. As a percent to sales, operating and administrative expenses for the
current quarter and the same quarter last year were 26.2%. During the second
quarter of fiscal 1999, the Company increased the estimated useful lives used to
compute depreciation for certain assets, principally store equipment (5 to 8
years) and leaseholds (8 to 15 years). Store equipment and leaseholds associated
with larger, full-service store formats are expected to have a longer life
because of the types of equipment and the expected timing of store remodels. In
addition, the change resulted in useful lives more consistent with the
predominant industry practices for these types of assets. The change has been
accounted for as a change in estimate and resulted in a reduction in operating
and administrative expenses of $14.4 million for the 12 weeks ended September
22, 1999.
Cash discounts and other income totaled $25.1 million for the first quarter,
compared to $26.5 million last year. The decrease in cash discounts and other
income is a result of a decrease in purchases of product for resale.
Interest expense totaled $6.6 million for the current quarter compared to $8.1
million for the comparable period last year. The decrease in interest expense
for the quarter is related to the decrease in short-term borrowings.
Page 8
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Results of Operations, continued
Earnings before income taxes were $35.9 million for the current quarter compared
to $23.7 million in the same quarter of the previous year. The increase in
pre-tax earnings is primarily a result of an increase in the gross profit margin
and a reduction of operating and administrative expenses as previously
mentioned. Income taxes have been accrued at an effective rate of 38.5% for the
current and previous years. This rate is expected to approximate the effective
rate for the full 2000 fiscal year.
Net earnings amounted to $22.1 million, or $0.15 per diluted share for the
current quarter compared to $14.6 million or $0.10 per diluted share for the
comparable period last year. The LIFO charge reduced net earnings by $1.8
million, or $0.01 per diluted share for the current quarter compared to $2.4
million or $0.01 per diluted share in the previous year.
Liquidity and Capital Resources The Company's financial condition remains sound
and strong. Cash and cash equivalents amounted to $56.3 million at September 22,
1999 compared to $23.1 million at September 16, 1998. Net cash provided by
operating activities amounted to $287.5 million for the 12 weeks ending
September 22, 1999 compared to $65.7 million for the comparable period last
year. Capital expenditures totaled $46.5 million compared to $70.1 million for
the comparable period last year. These expenditures were for new store
locations, remodeling and enlargement of store locations and maintenance and
expansion of support facilities. Total capital investment in Company retail and
support facilities, including operating leases, is estimated to be $500.0
million in 2000. The Company has no material construction or purchase
commitments outstanding as of September 22, 1999. Working capital amounted to
$252.6 million at September 22, 1999, compared to $250.7 million at June 30,
1999. The Company has an authorized $500.0 million Commercial Paper program. In
addition, the Company has $570.0 million of short-term lines of credit. These
lines of credit are available when needed during the year and are renewable on
an annual basis. The Company is not required to maintain compensating bank
balances in connection with these lines of credit. As of September 22, 1999,
$175.0 million of commercial paper was outstanding as compared to $300.0 million
on June 30, 1999. The average interest rate on the commercial paper outstanding
on September 22, 1999 was 5.6% as compared to 5.4% on June 30, 1999. The Company
had $125.0 million in short-term borrowings against bank lines of credit as of
September 22, 1999 as compared to $165.0 million on June 30, 1999. The interest
rate on the bank lines of credit on September 22, 1999 was 5.8% and 5.5% on June
30, 1999.
Page 9
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Liquidity and Capital Resources, continued
Excluding capital leases, the Company had no outstanding long-term debt as of
either September 22, 1999 or June 30, 1999.
The Company's cash flow from operations and available credit facilities are
considered adequate to fund the short-term and long-term capital needs of the
Company.
The Company is a party to various proceedings arising under federal, state and
local regulations protecting the environment. Management is of the opinion that
any liability, which might result from any such proceedings, will not have a
material adverse effect on the Company's consolidated earnings or financial
position.
Impact of Inflation
The Company's primary costs, inventory and labor, increase with inflation.
Recovery of these costs has to come from improved operating efficiencies and, to
the extent permitted by our competition, through improved gross profit margins.
Year 2000 Compliance
In 1996, the Company created a Year 2000 Project Office to address potential
problems within the Company's operations, which could result from the century
change in the Year 2000. The Project Office was authorized by the Company's
Executive Committee, is staffed primarily with representatives of the Company's
Corporate Information Systems Department, and has access to key associates in
all areas of the Company's operations. The Project Office also uses outside
consultants on an as-needed basis.
To address the Year 2000 issues, the Project Office is identifying all
computer-based systems and applications (including embedded systems) that might
not be Year 2000 compliant; determining what revisions or replacements would be
necessary to achieve compliance and prioritizing and implementing the revisions
or replacements; conducting tests necessary to verify that the revised systems
are operational; and transitioning the compliant systems into the everyday
operations of the Company. Management believes that these actions are
approximately ninety-eight percent (98%) complete. Winn-Dixie estimates that all
critical systems will be compliant with the century change by November 1, 1999.
Page 10
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2000 Compliance, continued
The Company has budgeted approximately $26.8 million to address the Year 2000
issues, which includes the estimated costs of all modifications, the salaries of
associates and the fees of consultants addressing the issues. Approximately
$26.0 million of this amount had been expended through September 22, 1999.
As a part of the Year 2000 review, the Company is examining its relationships
with certain key outside vendors and others with whom it has significant
business relationships to determine to the extent practical the degree of such
parties' Year 2000 compliance and to develop strategies for working with them
through the century change. The Company does not have a relationship with any
third-party vendor which is material to the operations of the Company and,
therefore, believes that the failure of any such party to be Year 2000 compliant
would not have a material adverse effect on the Company.
Should the Company or a third party with whom the Company deals have a systems
failure due to the century change, the Company believes that the most
significant impact would likely be the inability to timely deliver inventory to
a group of stores or to electronically process sales to the customer at store
level. While the Company does not expect any such impact to be material, it is
developing contingency plans for alternative methods of product delivery and
transaction processing and estimates that such plans will be finalized by
November 1, 1999.
Cautionary Statement Regarding Forward-Looking Information and Statements
This Form 10-Q contains certain information that constitutes "forward-looking
statements" within the meaning of the Private Securities Litigation Reform Act,
which involves risks and uncertainties. Actual results may differ materially
from the results described in the forward-looking statements. When used in this
document, the words, "estimate," "project," "intend" and "believe" and other
similar expressions, as they relate to the Company, are intended to identify
such forward-looking statements. Such statements reflect the current views of
the Company and are subject to certain risks and uncertainties that include, but
are not limited to, growth, competition, inflation, pricing and margin
pressures, law and taxes. Please refer to discussions of these and other factors
in this Form 10-Q and other Company filings with the Securities and Exchange
Commission. The Company disclaims any intent or obligation to update publicly
these forward-looking statements, whether as a result of new information, future
events or otherwise.
Page 11
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WINN-DIXIE STORES, INC. AND SUBSIDIARIES
Part II - Other Information
Item 4. Submission of Matters to a Vote of Security Holders
(a) The 1999 Annual Meeting of Shareholders of the Company took place on
October 6, 1999.
(b) Three matters were voted on at the meeting:
1. The election of three (3) Class III Directors for terms expiring in
2002;
2. Approval of the amendments to the Revised Winn-Dixie Stock Purchase
Plan for Employees;
3. Ratification of the appointment by the Board of Directors of the
Company of KPMG LLP as auditors of the Company for the fiscal year
commencing July 1, 1999.
With respect to the election of Directors, the votes were as follows:
Class III, for terms expiring in 2002 Shares for Shares Withheld
------------------------------------- ---------- ---------------
Armando M. Codina 121,514,187 2,435,119
Radford D. Lovett 121,129,243 2,820,063
Julia B. North 121,503,015 2,446,291
With respect to approval of the amendments to the Revised Winn-Dixie Stock
Purchase Plan for Employees, the vote was: 114,571,530 shares for;
8,354,781 shares against; 1,022,995 shares abstained. There were zero
broker non-votes.
With respect to the appointment of KPMG LLP as auditors of the Company for
the fiscal year commencing July 1, 1999, the vote was: 122,751,685 shares
for; 399,335 shares against; 798,286 shares abstained. There were zero
broker non-votes.
Page 12
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WINN-DIXIE STORES, INC. AND SUBSIDIARIES
Part II - Other Information, continued
Item 5. Other Information
H. Mathew Solana, Division President of the Raleigh Division with 28
years of service, has been elected a Vice President of the Company.
Philip H. Payment Jr., Director of Grocery Merchandising with 25 years
of service, has been elected a Vice President of the Company. Michael
E. Nixon, Director of Information Systems with 28 years of service,
has been elected a Vice President of the Company.
Item 6. Exhibits and Reports on Form 8-K
(a) Exhibits
3.2 Restated By-Laws of the Registrant as amended through
August 2, 1999.
10.2.1 Restricted Stock Plan effective June 29, 1995, as amended
August 2, 1999.
10.2.2 Performance-Based Restricted Stock Plan effective June 15,
1998, as amended through August 2, 1999.
10.3 Key Employee Stock Option Plan effective January 24, 1990
as amended through August 2, 1999.
(b) Report on Form 8-K
During the first quarter ended September 22, 1999, the Company filed a
current report on form 8-K dated September 2, 1999 reporting James
Kufeldt's retirement as President and Director of Winn-Dixie Stores,
Inc., and the election of Mr. A. Dano Davis, Chairman of the Board and
Principal Executive Officer, to the position of President, effective
August 31, 1999.
Page 13
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
WINN-DIXIE STORES, INC.
Date: October 14, 1999 RICHARD P. MC COOK
--------------------------------
Richard P. McCook
Financial Vice President and
Principal Financial Officer
Date: October 14, 1999 DAVID H. BRAGIN
--------------------------------
David H. Bragin
Corporate Treasurer and
Principal Accounting Officer
Page 14
<PAGE>
Exhibit 3.2
BY-LAWS
OF
WINN-DIXIE STORES, INC.
* * * * * * * * * * * *
ARTICLE I.
Offices
Section 1. Registered Office and Principal Office: The registered office
and principal office of the Corporation shall be located at 5050 Edgewood Court,
in the City of Jacksonville, County of Duval, and State of Florida.
Section 2. Registered Agent: The registered agent of the Corporation shall
be located at the registered office of the Corporation in the State of Florida
and shall be designated by resolution of the Board of Directors.
Section 3. Other Offices: The Corporation may have other offices, either
within or outside of the State of Florida, at such place or places as the Board
of Directors may from time to time designate or the business of the Corporation
may require.
ARTICLE II.
Seal
Section 1. The corporate seal shall be circular in form and shall have
inscribed thereon the name of the Corporation, the year of its incorporation
(1928) and the words "Corporate Seal, Florida."
Section 2. The Secretary shall be the custodian of the Seal and shall affix
the same to all writings and documents requiring the Seal of the Company as
authorized by the Board of Directors.
Page 1
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ARTICLE III.
Meetings of Stockholders
Section 1. Place: All meetings of the stockholders shall be held at the
principal office of the Corporation in the City of Jacksonville, County of Duval
and State of Florida, or at such other place, within or without the State of
Florida, as may be designated by the Board of Directors and stated in the notice
of meeting.
Section 2. Annual Meeting: The annual meeting of stockholders shall be held
at 9:00 o'clock A.M. on the first Wednesday in October each year, or at such
other time and on such other date as the Board of Directors may determine, for
the election of Directors and for the transaction of such other business as may
be brought before the meeting.
Any general business pertaining to the affairs of the Corporation may be
transacted at the Annual Meeting without special notice.
The directors elected at the annual meeting shall be elected by plurality
vote of the stockholders entitled to vote and present or duly represented at
such meeting.
Section 3. Special Meetings: Special meetings of the stockholders may be
called at any time by the Chairman of the Board, or by the Board of Directors.
The Corporation shall hold a special meeting of stockholders if the holders of
not less than thirty percent (30%) of all votes entitled to vote on any issue
proposed to be considered at the proposed special meeting shall sign, date and
deliver to the Corporation's Secretary one or more written demands for the
meeting describing the purpose or purposes for which it is to be held. Only
business within the purpose or purposes described in the special meeting notice
may be conducted at a special stockholders' meeting.
Section 4. Notice: The Secretary shall notify stockholders of the date,
time and place of the Annual Meeting no fewer than ten (10) or more than sixty
(60) days before the meeting date, and shall send each holder of record of stock
entitled to vote at such meeting, at the stockholder's address as it appears in
the Corporation's current record of stockholders, a notice of such annual
meeting, by mail postage prepaid, stating the time and place of such meeting. A
similar notice shall be given by the Secretary of all special meetings, and in
addition to the requirements for notice of annual meeting, the notice for
special meetings shall include a description of the purpose or purposes for
which the meeting is called; PROVIDED, HOWEVER, that any action taken at an
annual or special meeting of stockholders may be taken without a meeting,
without prior notice, and without a vote, if (i) the action is taken by the
holders of outstanding stock entitled to vote thereon having not less than the
minimum number of votes that would be necessary to authorize or take such action
at a meeting, (ii) the approving stockholders shall sign a written consent
authorizing such action and deliver such consent to the Corporation as provided
in Section 607.0704, Florida Business Corporation Act, and (iii) within ten (10)
days after such authorization by written consent is obtained, notice shall be
given those stockholders who have not consented in writing pursuant to
provisions of Section 607.0704(3) of the Florida Business Corporation Act.
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Section 5. Waiver of Notice: A stockholder may waive notice of any meeting
before or after the date and time stated in the notice. The waiver must be in
writing, signed by the stockholder and delivered to the Corporation for
inclusion in the minutes or filing with the corporate records. A stockholder's
attendance, in person or by proxy, at a meeting (i) waives objection to lack of
notice or defective notice of the meeting, unless the stockholder at the
beginning of the meeting objects to holding the meeting or transacting business
at the meeting, or (ii) waives objection to consideration of a particular matter
at the meeting that is not within the purpose or purposes described in the
meeting notice, unless the stockholder objects to considering the matter when it
is presented.
Section 6. Quorum: The holders of a majority of the issued and outstanding
shares of Capital Stock of the Company entitled to vote at the meeting,
represented in person or by proxy, shall constitute a quorum for the transaction
of business at all meetings of the stockholders except as may be otherwise
provided by law or the Articles of Incorporation. The holders of a majority of
shares represented, and who would be entitled to vote at a meeting if a quorum
were present, where a quorum is not present, may adjourn such meeting from time
to time.
Once a share is represented for any purpose at the meeting, it is deemed
present for quorum purposes for the remainder of the meeting and for any
adjournment of that meeting unless a new record date is set for the adjourned
meeting.
Section 7. Proxies: Any stockholder entitled to vote at any meeting of
stockholders may be represented and vote at such meeting by proxy duly
authorized by written appointment signed by such stockholder or duly authorized
attorney-in-fact. An executed telegram or cablegram appearing to have been
transmitted by such person, or a photographic, photostatic or equivalent
reproduction of an appointment form, is a sufficient appointment form. An
appointment by proxy is valid for 11 months from date of execution unless a
longer date is expressly provided in the appointment form.
Section 8. Voting of Shares: Unless otherwise provided in the Articles of
Incorporation or these By-Laws, each outstanding share entitled to vote shall be
entitled to one vote on each matter submitted to a vote at a meeting of
stockholders. If a quorum exists, action on a matter is approved if the votes
cast by the stockholders entitled to vote favoring the action exceeds the votes
cast opposing the action, unless a greater vote is required by Law, the Articles
of Incorporation or these By-Laws. If prior to the voting for the election of
directors, demand shall be made by or on behalf of any shares entitled to vote
at such meeting, the election of directors shall be by ballot.
Section 9. Voting Lists: The Secretary shall prepare, at least ten (10)
days before each meeting of stockholders, an alphabetical list of the
stockholders entitled to notice of the meeting, which shall show the address of
and the number of shares held by each stockholder. Any stockholder, his attorney
or agent, on written demand as provided by statute may inspect the list during
regular business hours at his expense during the period it is available for
inspection. The list shall be open for examination of any stockholder, or his
attorney or agent, at the place where the meeting is to be held for ten (10)
days prior to such meeting and shall be kept available for inspection by any
stockholder at any time during the meeting.
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ARTICLE IV.
Directors
Section 1. Powers: All corporate powers shall be exercised by or under the
authority of, and the business and affairs of the Corporation shall be managed
under the direction of, the Board of Directors.
Section 2. Classification of Board and Number of Directors: The Board of
Directors shall consist of nine (9) members who shall be divided into three
classes, with the number of directors in each class to be equal.
Section 3. Term of Office: Any Director may be elected to serve for one or
more years (not exceeding three years) and until his successor is chosen and
qualified.
Section 4. Vacancies: Any vacancies in the Board of Directors shall be
filled in accordance with the provisions of Article NINTH of the Articles of
Incorporation. An increase in the number of Directors shall create vacancies for
the purpose of this section.
Section 5. Removal: The Board of Directors or any individual director may
be removed from office only in accordance with the provisions of Article NINTH
of the Articles of Incorporation.
Section 6. Meetings: The Board of Directors shall meet immediately after
the Annual Meeting of Stockholders at the same place as the Annual Meeting of
Stockholders.
Regular meetings of the Board of Directors may be held without notice of
the date, time, place or purpose of the meeting.
Special meetings of the Board of Directors may be called by the Chairman of
the Board or by the President, and shall be called by the Chairman of the Board
or Secretary upon the written request of not less than three (3) Directors.
Notice of special meetings may be communicated in person or by mail to each
Director at least three (3) days in advance, or by telephone, telegraph,
teletype or other form of electronic communication to each Director at least
twenty-four (24) hours in advance of the meeting. Such notice shall specify the
time and place of meeting.
Any or all Directors may participate in a regular or special meeting by, or
conduct the meeting through the use of, any means of communication by which all
Directors participating may simultaneously hear each other during the meeting.
Section 7. Place of Meetings: Until otherwise prescribed, the regular
meetings of the Board of Directors shall be held in the City of Jacksonville,
Florida, at the office of the Company or at such other place as may be agreed
upon by the Board. The Board of Directors may hold Special Meetings and may have
one or more offices and may keep the books of the Corporation (except such books
as are required by Law to be kept within the State of Florida) either within or
outside of the State of Florida, at such place or places as it may from time to
time determine.
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Section 8. Quorum: Unless the Articles of Incorporation or these By-Laws
provide otherwise, a majority of the number of Directors fixed by the By-Laws
shall constitute a quorum for the transaction of business at any meeting of the
Board of Directors.
ARTICLE V.
Officers
Section 1. Election: The officers of the Corporation shall be a Chairman of
the Board of Directors, a President, an Executive Vice President, a Secretary
and a Treasurer. The Corporation may also have, at the discretion of the Board
of Directors, one or more Vice Chairmen of the Board of Directors, one or more
Senior Vice Presidents, one or more Vice Presidents, one or more Assistant
Secretaries and one or more Assistant Treasurers as may from time to time be
elected by the Board of Directors. None of these officers, except the President,
the Chairman of the Board of Directors, and the Vice Chairman or Vice Chairmen
of the Board of Directors, need be a Director. The officers shall be elected by
the Board of Directors at the first meeting of the Board after each Annual
Meeting.
Section 2. Hold Two Offices: Any officer may hold more than one office,
except that the Chairman of the Board of Directors and the President shall not
be the Secretary or an Assistant Secretary of the Corporation; but no officer
shall execute, acknowledge or verify any instrument in more than one capacity,
if such instrument be required by law or these By-Laws to be executed,
acknowledged or verified by any two or more officers.
Section 3. Term of Office: The officers shall hold office for one year and
until their successors are chosen and qualify. Any vacancy occurring among the
officers shall be filled by the Board of Directors, but the person so elected to
fill the vacancy shall hold office only until the first meeting of the Board of
Directors after the next Annual Meeting of stockholders and until his successor
is chosen and qualifies.
Section 4. Agents: The Board of Directors may appoint such agents as it may
deem necessary, who shall hold their offices for such terms and shall exercise
such powers and perform such duties as shall be determined from time to time by
the Board of Directors.
Section 5. Removal: Any officer chosen by the Board of Directors may be
removed with or without cause at any time by the affirmative vote of a majority
of the Board of Directors.
Section 6. Voting Shares in Other Corporations: The Corporation may vote
any and all shares held by it in any other corporation by such officer, agent or
proxy as the Board of Directors may appoint, or, in default of any such
appointment, by the Chairman of the Board or the President.
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ARTICLE VI.
The Chairman and Vice Chairmen
of the Board of Directors
Section 1. The Chairman of the Board of Directors:
(a) Duties and Responsibilities: The Chairman of the Board of
Directors shall be the Principal Executive Officer of the Corporation, and
shall have general management and control of the business and affairs of
the Corporation. Except where by law the signature of the President is
required, the Chairman of the Board shall possess the same powers as the
President to sign all certificates, contracts and other instruments of the
Corporation which may be authorized by the Board of Directors. The
Chairman, if present, shall preside at all meetings of the stockholders and
the Board of Directors, and shall see that all orders and resolutions of
the Board of Directors are carried into effect. The Chairman shall perform
such other duties as may be prescribed by the Board of Directors.
(b) Annual Reports: The Chairman of the Board of Directors or the
President shall, annually, make a full report to the stockholders, at the
annual meeting of stockholders, of the condition of the Company, its
resources, liabilities, loans, profits and general financial condition,
which report shall be for the fiscal year ending on the last Wednesday in
the month of June of each year before such annual meeting.
Section 2. Vice Chairmen of the Board of Directors:
The Vice Chairman of the Board of Directors, if there shall be such an
officer, shall, if present, preside at all meetings of the Board of
Directors at which the Chairman of the Board of Directors shall not be
present. If two Vice Chairmen of the Board of Directors are elected, the
one designated by the Board of Directors shall preside at meetings of the
Board of Directors in the absence of the Chairman. The Vice Chairman or
Vice Chairmen of the Board of Directors shall have such other powers and
perform such other duties as may be prescribed for them by the Board of
Directors or the By-Laws.
ARTICLE VII.
The President
The President shall have active supervision and direction of
operations of the business and affairs of the Corporation. The President
shall sign or countersign all bonds, mortgages, certificates, contracts or
other instruments in behalf of the Corporation as authorized by the Board
of Directors, and shall perform any and all other duties as are incident to
the office of the President or as may be required by the Board of
Directors. The President shall have general supervision and direction of
all the other officers, employees and agents of the Corporation.
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ARTICLE VIII.
The Executive Vice President,
Senior Vice Presidents and Vice Presidents
Section 1. The Executive Vice President shall, in the absence or disability
of the President, perform the duties and exercise the powers of the President,
and shall perform such other duties as the Board of Directors shall prescribe.
Section 2. Senior Vice Presidents, if any such officers shall have been
elected, shall in the absence of the President and Executive Vice President, in
the order designated by the President or, failing such designation, by the Board
of Directors, perform the duties and exercise the powers of the President.
Senior Vice Presidents and other Vice Presidents shall have such powers and
perform such duties as may be assigned to them from time to time by the Board of
Directors or the President.
ARTICLE IX.
The Treasurer
Section 1. Chief Accounting Officer: The Treasurer shall be the Chief
Accounting Officer of the Corporation.
Section 2. Accounting Supervision: The Treasurer shall have general
supervision of and responsibility for all accounting matters affecting the
Corporation and shall perform such other duties as may be prescribed by the
Board of Directors or by the President.
Section 3. Custody of Funds: The Treasurer shall have the custody of the
corporate funds and securities, and shall keep full and accurate account of
receipts and disbursements in books belonging to the Corporation. He shall
deposit all moneys and other valuables in the name and to the credit of the
Corporation in such depositaries as may be designated by the Board of Directors.
Section 4. Disbursements: The Treasurer shall disburse the funds of the
Corporation as may be ordered by the Board of Directors, taking proper vouchers
for such disbursements. He shall render to the President and Directors at the
regular meetings of the Board of Directors, or whenever they may request it, an
account of all his transactions as Treasurer and of the financial condition of
the Corporation.
Section 5. Bond: He shall give the Corporation a bond if required by the
Board of Directors, in a sum and with one or more sureties satisfactory to the
Board of Directors, for the faithful performance of the duties of his office and
for the restoration to the Corporation in case of his death, resignation,
retirement or removal from office of all books, papers, vouchers, securities,
moneys and other property of whatever kind in his possession or under his
control belonging to the Corporation.
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ARTICLE X.
The Secretary
The Secretary shall attend all meetings of the Board of Directors and all
meetings of the stockholders and shall record all votes and the minutes of all
proceedings in a book to be kept for that purpose and shall perform like duties
for the standing committees when required. He shall give or cause to be given
notice of all meetings of the stockholders and of the Board of Directors, and he
shall perform such other duties as may be prescribed by the Board of Directors,
Chairman of the Board or the President.
ARTICLE XI.
Assistant Treasurers and Assistant Secretaries
The Assistant Treasurers and Assistant Secretaries shall perform such
duties as may be prescribed hereunder, or by the Board of Directors, or by the
President.
In the absence or disability of the Treasurer, his duties may be performed
by any Assistant Treasurer.
In the absence or disability of the Secretary, his duties may be performed
by any Assistant Secretary.
ARTICLE XII.
Duties of Officers may be Delegated
In case of the absence or disability of any officer of the Corporation, or
for any other reason that the Board of Directors may deem sufficient, the Board
of Directors, by majority vote, may delegate for the time being the powers or
duties or any of them of such officer to any other officer or to any Director or
to any other person.
ARTICLE XIII.
Indemnification
Section 1. The Corporation shall indemnify to the fullest extent permitted
by Law any person who was or is a party to any proceeding (other than an action
by, or in the right of, the Corporation) by reason of the fact that he is or was
a director, officer, employee, or agent of the Corporation or is or was serving
at the request of the Corporation as a director, officer, employee, or agent of
another corporation, partnership, joint venture, trust, or other enterprise
against liability incurred in connection with such proceeding, including any
appeal thereof, if he acted in good
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faith and in a manner he reasonably believed to be in, or not opposed to, the
best interests of the Corporation and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful. The
termination of any proceeding by judgment, order, settlement, or conviction or
upon a plea of nolo contendere or its equivalent shall not, of itself, create a
presumption that the person did not act in good faith and in a manner which he
reasonably believed to be in, or not opposed to, the best interests of the
Corporation or, with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful.
Section 2. The Corporation shall indemnify to the fullest extent permitted
by Law any person, who was or is a party to any proceeding by or in the right of
the Corporation to procure a judgment in its favor by reason of the fact that he
is or was a director, officer, employee, or agent of the Corporation or is or
was serving at the request of the Corporation as a director, officer, employee,
or agent of another corporation, partnership, joint venture, trust, or other
enterprise, against expenses and amounts paid in settlement not exceeding, in
the judgment of the Board of Directors, the estimated expense of litigating the
proceeding to conclusion, actually and reasonably incurred in connection with
the defense or settlement of such proceeding, including any appeal thereof. Such
indemnification shall be authorized if such person acted in good faith and in a
manner he reasonably believed to be in, or not opposed to, the best interests of
the Corporation, except that no indemnification shall be made under this
subsection in respect of any claim, issue, or matter as to which such person
shall have been adjudged to be liable unless, and only to the extent that, the
court in which such proceeding was brought, or any other court of competent
jurisdiction, shall determine upon application that, despite the adjudication of
liability but in view of all circumstances of the case, such person is fairly
and reasonably entitled to indemnity for such expenses which such court shall
deem proper.
Section 3. To the extent that a director, officer, employee, or agent of
the Corporation has been successful on the merits or otherwise in defense of any
proceeding referred to in Section 1 or Section 2, or in defense of any claim,
issue, or matter therein, he shall be indemnified against expenses actually and
reasonably incurred by him in connection therewith.
Section 4. Any indemnification under Section 1 or Section 2, unless
pursuant to a determination by a court, shall be made by the Corporation only as
authorized in the specific case upon a determination that indemnification of the
director, officer, employee, or agent is proper in the circumstances because he
has met the applicable standard of conduct set forth in Section 1 or Section 2.
Such determination shall be made:
(a) By the Board of Directors by a majority vote of a quorum consisting of
directors who were not parties to such proceeding;
(b) If such a quorum is not obtainable or, even if obtainable, by majority
vote of a committee duly designated by the Board of Directors (in which
directors who are parties may participate) consisting solely of two or more
directors not at the time parties to the proceeding;
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(c) By independent legal counsel:
(i) Selected by the Board of Directors prescribed in paragraph (a) or
the committee prescribed in paragraph (b); or
(ii) If a quorum of the directors cannot be obtained for paragraph (a)
and the committee cannot be designated under paragraph (b),
selected by majority vote of the full Board of Directors (in
which directors who are parties may participate); or
(d) By the stockholders by a majority vote of a quorum consisting of
stockholders who were not parties to such proceeding or, if no such quorum is
obtainable, by a majority vote of stockholders who were not parties to such
proceeding.
Section 5. Evaluation of the reasonableness of expenses and authorization
of indemnification shall be made in the same manner as the determination that
indemnification is permissible. However, if the determination of permissibility
is made by independent legal counsel, persons specified by Section 4(c) shall
evaluate the reasonableness of expenses and may authorize indemnification.
Section 6. Expenses incurred by an officer or director in defending a civil
or criminal proceeding may be paid by the Corporation in advance of the final
disposition of such proceeding upon receipt of an undertaking by or on behalf of
such director or officer to repay such amount if he is ultimately found not to
be entitled to indemnification by the Corporation pursuant to this section.
Expenses incurred by other employees and agents may be paid in advance upon such
terms or conditions that the Board of Directors deems appropriate.
Section 7. The indemnification and advancement of expenses provided
pursuant to this section are not exclusive, and the Corporation may make any
other or further indemnification or advancement of expenses of any of its
directors, officers, employees, or agents, under any by-law, agreement, vote of
stockholders or disinterested directors, or otherwise, both as to action in his
official capacity and as to action in another capacity while holding such
office. However, indemnification or advancement of expenses shall not be made to
or on behalf of any director, officer, employee, or agent if a judgment or other
final adjudication establishes that his actions, or omissions to act, were
material to the cause of action so adjudicated and constitute:
(a) A violation of the criminal law, unless the director, officer,
employee, or agent had reasonable cause to believe his conduct was lawful or had
no reasonable cause to believe his conduct was unlawful;
(b) A transaction from which the director, officer, employee, or agent
derived an improper personal benefit;
(c) In the case of a director, a circumstance under which the liability
provisions of Section 607.0834, Florida Statutes, are applicable; or
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(d) Willful misconduct or a conscious disregard for the best interests of
the Corporation in a proceeding by or in the right of the Corporation to procure
a judgment in its favor or in a proceeding by or in the right of a stockholder.
Section 8. Indemnification and advancement of expenses as provided in this
section shall continue as, unless otherwise provided when authorized or
ratified, to a person who has ceased to be a director, officer, employee, or
agent and shall inure to the benefit of the heirs, executors, and administrators
of such a person, unless otherwise provided when authorized or ratified.
Section 9. For purposes of this Article, the term "corporation" includes,
in addition to the resulting corporation, any constituent corporation (including
any constituent of a constituent)) absorbed in a consolidation or merger, so
that any person who is or was a director, officer, employee, or agent of a
constituent corporation, or is or was serving at the request of a constituent
corporation as a director, officer, employee, or agent of another corporation,
partnership, joint venture, trust, or other enterprise, is in the same position
under this section with respect to the resulting or surviving corporation as he
would have with respect to such constituent corporation if its separate
existence had continued.
Section 10. For purposes of this Article:
(a) The term "other enterprises" includes employee benefit plans;
(b) The term "expenses" includes counsel fees, including those for appeal;
(c) The term "liability" includes obligations to pay a judgment,
settlement, penalty, fine (including an excise tax assessed with
respect to any employee benefit plan), and expenses actually and
reasonably incurred with respect to a proceeding;
(d) The term "proceeding" includes any threatened, pending, or completed
action, suit, or other type of proceeding, whether civil, criminal,
administrative, or investigative and whether formal or informal;
(e) The term "agent" includes a volunteer;
(f) The term "serving at the request of the corporation" includes any
service as a director, officer, employee, or agent of the Corporation
that imposes duties on such persons, including duties relating to an
employee benefit plan and its participants or beneficiaries; and
(g) The term "not opposed to the best interest of the Corporation"
describes the actions of a person who acts in good faith and in a
manner he reasonably believes to be in the best interests of the
participants and beneficiaries of an employee benefit plan.
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Section 11. The Corporation shall have power to purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee,
or agent of the Corporation or is or was serving at the request of the
Corporation as a director, officer, employee, or agent of another corporation,
partnership, joint venture, trust, or other enterprise against any liability
asserted against him and incurred by him in any such capacity or arising out of
his status as such, whether or not the Corporation would have the power to
indemnify him against such liability under the provisions of this Article.
Section 12. The foregoing indemnifications shall not be deemed exclusive of
any other rights to which any director, officer, employee or agent may be
entitled under any by-law, agreement, vote of stockholders or as a matter of law
or otherwise.
ARTICLE XIV.
Certificates of Stock
The Certificates of stock of the Corporation shall be numbered and shall be
entered in the books of the Corporation as they are issued. They shall exhibit
the holder's name and certify the number of shares owned by the holder and shall
be signed by the President or a Vice President and by the Secretary or an
Assistant Secretary or an Assistant Treasurer of the Corporation and sealed with
the Seal of the Corporation.
ARTICLE XV.
Transfers of Stock
The shares of stock shall be transferable on the books of the Corporation
by the person named in the Certificate or by attorney, lawfully constituted in
writing, upon surrender of the certificate thereof.
The Board of Directors shall have power and authority to make all such
rules and regulations as it shall deem expedient concerning the issue, transfer
and registration of certificates for shares of stock of the Corporation or scrip
certificates for such stock.
The Board of Directors may appoint and remove transfer agents and
registrars of transfers, and may require all stock certificates and/or scrip
certificates to bear the signature of any such transfer agent and/or of any such
registrar of the transfers.
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ARTICLE XVI.
Record Date
The Board of Directors may fix a future date as the record date for
determining the stockholders entitled to notice of a stockholders' meeting, to
demand a special meeting, to vote or to take any other action. Such record date
may not be more than seventy (70) days before the meeting or action requiring a
determination of stockholders. A determination of stockholders entitled to
notice of or to vote at a stockholders' meeting is effective for any adjournment
of the meeting unless the Board of Directors fixes a new record date for the
adjourned meeting, which it must do if the meeting is adjourned to a date more
than 120 days after the date fixed for the original meeting.
If no record date is fixed by the Board of directors for the determination
of stockholders entitled to notice of or to vote at a meeting of stockholders,
the close of business on the day before the first notice of the meeting is
delivered to stockholders shall be the record date for such determination of
stockholders.
The Board of Directors may fix a date as the record date for determining
stockholders entitled to a distribution or share dividend. If no record date is
fixed by the Board of Directors for such determination, it is the date the Board
of Directors authorizes the distribution or share dividend.
ARTICLE XVII.
Registered Stockholders
The Corporation shall be entitled to treat the holder of record of any
share or shares of stock as the holder in fact thereof and, accordingly, shall
not be bound to recognize any equitable or other claim to or interest in such
share or shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as expressly provided by the Laws of
Florida.
ARTICLE XVIII.
Lost Certificates
Any person claiming a certificate of stock to be lost or destroyed shall
make an affidavit or affirmation of that fact and verify the same in such manner
as the Board of Directors may require, and shall if the Board of Directors so
requires, give the Corporation, its transfer agents, registrars and/or other
agents a bond of indemnity in form and with one or more sureties satisfactory to
the Board of Directors before a new certificate may be issued of the same tenor
and for the same number of shares as the one alleged to have been lost or
destroyed.
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ARTICLE XIX.
Inspection of Books
The Board of Directors shall determine from time to time whether, and if
allowed, when and under what conditions and regulations the accounts and books
of the Corporation, or any of them, shall be open to the inspection of the
stockholders. No stockholder shall have any right to inspect any book or
document of the Corporation except as such right may be conferred by the laws of
the State of Florida or as may be authorized by the Board of Directors or the
stockholders.
ARTICLE XX.
Checks, Etc.
All checks, drafts, acceptances, notes and other orders, demands or
instruments in respect of the payment of money shall be signed or endorsed in
behalf of the Corporation by such officer or officers or by such agent or agents
as the Board of Directors may from time to time designate.
ARTICLE XXI.
Fiscal Year
The fiscal year of the Corporation shall end on the last Wednesday in the
month of June of each year.
ARTICLE XXII.
Dividends
Dividends upon the capital stock of the Corporation may be declared at the
discretion of the Board of Directors, at any regular or special meeting, subject
to the provisions of the Articles of Incorporation and the Laws of the State of
Florida.
ARTICLE XXIII.
Notices
Section 1. How Given: Notice required to be given by the Articles of
Incorporation or by these By-Laws is effective when mailed postage prepaid and
correctly addressed to the stockholder, officer or director, as the case may be,
at such address as appears on the current records of the Corporation.
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Section 2. Waiver of Notice: Notice of a meeting of the Board of Directors
need not be given to any Director who signs a waiver of notice either before or
after the meeting. Attendance of a Director at a meeting shall constitute a
waiver of notice of such meeting, except when the Director states at the
beginning of the meeting or promptly upon arrival, any objection to the
transaction of business because the meeting is not lawfully called or convened.
ARTICLE XXIV.
Amendments
Unless otherwise provided in the Articles of Incorporation, these By-Laws
may be altered, amended or repealed by the affirmative vote of a majority of the
holders of Stock issued and outstanding and entitled to vote at any regular or
special meeting of the stockholders, or by the affirmative vote of a majority of
the Board of Directors at any regular or special meeting, if notice of the
proposed alteration, amendment or repeal be contained in the notice of the
meeting.
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Exhibit 10.2.1
WINN-DIXIE STORES, INC. RESTRICTED STOCK PLAN
As Amended August 2, 1999
Winn-Dixie Stores, Inc. (the "Company") herein adopts the Winn-Dixie
Stores, Inc. Restricted Stock Plan (the "Plan") as part of its Officer
Compensation Program. The Plan shall be effective as of June 29, 1995,
conditioned upon the Plan being approved by the Company's shareholders in
accordance with Rule 16b-3(b) issued pursuant to the Securities and Exchange Act
of 1934, as amended (the "Exchange Act").
I. KEY FEATURES OF THE PLAN
A. Definition of Restricted Stock
"Restricted Stock" consists of actual shares of Company common stock
that cannot be sold, transferred or pledged until the Restriction
Period lapses. The Restriction Period will lapse within 30 days after
the date on which independent certified public accounts have issued
their opinion on the Company's financial statements if the performance
requirements for such shares are met. While the restrictions remain,
the holder of the shares has the right to vote the shares and receive
dividends.
B. Definition of Restriction Period
"Restriction Period" means the period commencing on the date an award
is granted and ending on such date or upon the achievement of such
requirements as established for each such award by the Committee (the
"Committee") appointed by the Board of Directors of the Company (the
"Board") pursuant to Section II
C. Definition of Key Employee
"Key Employee" means an officer or other key employee of the Company
or its subsidiaries who, in the judgment of the Committee, is
responsible for or contributes to the management, growth or
profitability of the business of the Company or its subsidiaries.
D. Definition of Change in Control
"Change in Control" means:
(i) any person (as such term is used in Section 13(d) of the
Securities Exchange Act of 1934 (the "Act"), excluding (A) those
persons and entities included in the joint Schedule 13(G) filing
filed with the Securities and Exchange Commission on February 12,
1999, and all current or future heirs, successors and affiliates
to such persons and all trusts or other entities established or
maintained, or to be established or maintained, for the benefit
of such persons and their heirs, successors and affiliates
(collectively, the "Davis Family"), (B) any employee Page 1
<PAGE>
benefit plan or related trust sponsored or maintained by the
Company, and (C) a corporation or other entity owned, directly or
indirectly, by all or substantially all of the shareholders of
the Company immediately prior to the transaction in substantially
the same proportions as their ownership of stock of the Company
("Person")), becoming the beneficial owner, directly or
indirectly, of twenty-five (25) percent or more of the
outstanding voting stock of the Company requiring the filing of a
report with the Securities and Exchange Commission under Section
13(d) of the Act; provided, that, at the time of the acquisition
of such beneficial ownership interest, such Person's beneficial
ownership interest in the Company exceeds that of the Davis
Family.
(ii) consummation of a merger, consolidation, liquidation or
dissolution of the Company, or the sale of all or substantially
all of the assets of the Company (a "Business Combination"), in
each case, unless, following such Business Combination, all or
substantially all of the shareholders of the Company immediately
prior to such Business Combination beneficially own, directly or
indirectly, more than fifty (50) percent of the then outstanding
shares of common stock and the combined voting power of the then
outstanding voting securities entitled to vote generally in the
election of directors of the corporation resulting from such
Business Combination; or
(iii)during any period of 24 consecutive months, individuals who at
the beginning of such period constitute the Board and any new
directors whose election by the Board or nomination for election
by the Company's shareholders was approved by a vote of at least
2/3 of the directors then still in office who either were
directors at the beginning of the period or whose election or
nomination for election was previously so approved, cease for any
reason to constitute a majority of the Board.
E. Shares Subject to the Plan
-- The total number of shares that may be awarded under the Plan is
1,000,000 shares.
F. Award of Restricted Stock
-- The Committee shall determine Key Employees who shall participate
in the Plan, the shares of stock awarded to each Key Employee and
the terms and conditions for shares to be awarded, including, but
not limited to, the Restriction Period and the performance
requirements.
-- The amount of stock to be issued in a participant's name each
year will depend upon: (i) a target award level set for such
participant; and (ii) the price of the stock at the time of the
grant.
-- The maximum number of shares of Restricted Stock that may be
granted under an award to any participant during any one of the
Company's fiscal years shall not exceed 10,000 shares. Page 2
<PAGE>
-- Unless there is a Change in Control, the restrictions will lapse
and the stock will belong to a participant free and clear of any
restrictions when the Restriction Period expires, if and only if,
the participant remains in the employ of the Company or its
subsidiaries throughout the Restriction Period.
-- The restrictions will lapse and the stock will belong to a
participant free and clear of any restrictions, upon the
occurrence of a Change in Control.
-- Except as otherwise provided by the Committee when an award is
made, if a participant leaves the employ of the Company or its
subsidiaries prior to the expiration of the Restriction Period
all shares of Restricted Stock shall be forfeited.
-- Forfeited shares will be available for grant by the Committee to
other participants.
-- Restricted stock must be held for at least six months from the
date of grant as required under Rule 16b-3(c)(1) issued pursuant
to the Exchange Act.
G. Restrictions
-- In accordance with Rule 16b-3(a)(2) of the Exchange Act, the
right of any individual to any award payable under the Plan may
not be assigned, transferred, pledged or encumbered, either
voluntarily or by operation of law, except by the laws of descent
and distribution upon death or pursuant to a qualified domestic
relations order as defined by the Internal Revenue Code of 1986,
as amended, or Title I of the Employee Retirement Income Security
Act, or the rules thereunder.
II. ADMINISTRATION OF THE PLAN
A. The Plan shall be administered by the Committee, as appointed by the
Board and serving at the Board's pleasure. All members of the
Committee shall be "disinterested" as such term is defined in Rule
16b-3(c)(2) issued pursuant to the Exchange Act.
B. The Committee shall have the authority to establish the terms and
conditions of all awards including, but not limited to, establishing
the Restriction Period and performance requirements for each award.
C. The Committee's decisions and determinations under the Plan need not
be uniform and may be made selectively among individuals whether or
not such individuals are similarly situated.
D. The Committee shall have full power, discretion and authority to
interpret, construe and administer the Plan and any part thereof, and
its interpretations and constructions thereof and actions taken
thereunder shall be final, conclusive and binding on all persons for
all purposes.
Page 3
<PAGE>
III. AMENDMENT OR TERMINATION
A. The Board may, at any time, amend or terminate the Plan. The Plan may
also be amended by the Committee provided that all such amendments
shall be reported to the Board. No amendment or termination of the
Plan shall retroactively impair the rights of any person with respect
to an award.
B. Any amendment to the Plan shall be effective subject to being approved
by the Company's shareholders in accordance with Rule 16b-3(b) issued
pursuant to the Exchange Act if the amendment would: (i) materially
increase the benefits accruing to participants under the Plan; (ii)
materially increase the numbers of securities that may be issued under
the Plan; or (iii) materially modify the requirements as to
eligibility for participation in the Plan.
Page 4
<PAGE>
Exhibit 10.2.2
WINN-DIXIE STORES, INC.
PERFORMANCE-BASED RESTRICTED STOCK PLAN
As Amended August 2, 1999
Winn-Dixie Stores, Inc. (the "Company") herein adopts the Winn-Dixie
Stores, Inc. Performance-Based Restricted Stock Plan (the "Plan") as part of its
Officer Compensation Program. The Plan shall be effective as of June 15, 1998.
I. KEY FEATURES OF THE PLAN
A. Definition of Restricted Stock
"Restricted Stock" consists of actual shares of Company common stock that
cannot be sold, transferred or pledged until the Restricted Period lapses.
The Restriction Period will lapse within 30 days after the date on which
independent certified public accountants have issued their opinion on the
Company's financial statements and the Committee (the "Committee")
appointed by the Board of Directors of the Company (the "Board") pursuant
to Section II has determined in writing that the performance requirements
have been satisfied. While the restrictions remain, the holder of the
shares has the right to vote the shares and receive dividends.
B. Definition of Restriction Period
"Restriction Period" means the period commencing on the date an award is
granted and ending on such date or upon the achievement of such
requirements as established for each such award by the Committee.
C. Definition of Key Employee
"Key Employee" means an officer or other key employee of the Company or its
subsidiaries who, in the judgment of the Committee, is significantly
responsible for or materially contributes to the management, growth or
profitability of the business of the Company and its subsidiaries.
D. Definition of Change in Control
"Change in Control" means:
(i) any person (as such term is used in Section 13(d) of the
Securities Exchange Act of 1934 (the "Act"), excluding (A) those
persons and entities included in the joint Schedule 13(G) filing
filed with the Securities and Exchange Commission on February 12,
1999, and all current or future heirs, successors and affiliates
to such persons and all trusts or other entities established or
maintained, or to be established or maintained, for the benefit
of such persons and their heirs, successors and affiliates
(collectively, the "Davis Family),
Page 1
<PAGE>
(B) any employee benefit plan or related trust sponsored or
maintained by the Company, and (C) a corporation or other entity
owned, directly or indirectly, by all or substantially all of the
shareholders of the Company immediately prior to the transaction
in substantially the same proportions as their ownership of stock
of the Company ("Person")), becoming the beneficial owner,
directly or indirectly, of twenty-five (25) percent or more of
the outstanding voting stock of the Company requiring the filing
of a report with the Securities and Exchange Commission under
Section 13(d) of the Act; provided, that, at the time of the
acquisition of such beneficial ownership interest, such Person's
beneficial ownership interest in the Company exceeds that of the
Davis Family.
(ii) consummation of a merger, consolidation, liquidation or
dissolution of the Company, or the sale of all or substantially
all of the assets of the Company (a "Business Combination"), in
each case, unless, following such Business Combination, all or
substantially all of the shareholders of the Company immediately
prior to such Business Combination beneficially own, directly or
indirectly, more than fifty (50) percent of the then outstanding
shares of common stock and the combined voting power of the then
outstanding voting securities entitled to vote generally in the
election of directors of the corporation resulting from such
Business Combination; or
(iii)during any period of 24 consecutive months, individuals who at
the beginning of such period constitute the Board and any new
directors whose election by the Board or nomination for election
by the Company's shareholders was approved by a vote of at least
2/3 of the directors then still in office who either were
directors at the beginning of the period or whose election or
nomination for election was previously so approved, cease for any
reason to constitute a majority of the Board.
E. Shares Subject to the Plan
-- The total number of shares that may be awarded under the Plan is
2,000,000 shares.
F. Award of Restricted Stock
-- The Committee shall determine Key Employees who shall participate
in the Plan, the shares of stock awarded to each Key Employee and
the terms and conditions for shares to be awarded, including, but
not limited to, the Restriction Period, performance period,
performance requirements and any share ownership obligations of a
Key Employee.
-- The amount of stock to be issued in a participant's name each
year will depend upon: (i) a target award level set for such
participant; and (ii) the price of the stock at the time of the
grant.
Page 2
<PAGE>
-- The maximum number of shares of Restricted Stock that may be
granted under an award to any participant during any one of the
Company's fiscal years shall not exceed 10,000 shares.
-- Unless there is a Change in Control or the Committee determines
otherwise, the restrictions will lapse and the stock will belong
to a participant free and clear of any restrictions when the
Restriction Period expires, if and only if, the participant
remains in the employ of the Company or its subsidiaries and in a
Key Employee position throughout the Restriction Period and the
preestablished performance requirements are satisfied.
-- The restrictions will lapse and the stock will belong to a
participant free and clear of any restrictions, upon the
occurrence of a Change in Control.
-- Except as otherwise provided by the Committee, if a participant
leaves the employ of the Company or its subsidiaries or a
participant ceases to be in a Key Employee position prior to the
expiration of the Restriction Period or a Change in Control, all
shares of Restricted Stock shall be forfeited.
-- Forfeited shares will be available for grant by the Committee to
other participants.
G. Contingent Cash Payment
-- Each individual awarded a grant of Restricted Stock by the
Committee may also be eligible to receive, at the Committee's
discretion, a contingent cash payment, the value of which shall
equal the grant value (as determined in the sole discretion of
the Committee) of the restricted stock awarded to such
individual. Payment of the contingent cash payment shall be made
upon vesting (i.e., lapsing of restrictions or upon a Change in
Control) of the Restricted Stock award to which the contingent
cash payment relates. No contingent cash payment will be made to
an individual if (i) the Restricted Stock award to which the cash
payment relates does not vest, or (ii) the Restricted Stock award
is otherwise forfeited.
H. Anti-Dilution
-- In the event that any change in the outstanding shares of Stock
(including an exchange of the Stock for stock or other securities
of another corporation) occurs by reason of a Stock dividend or
split, recapitalization, merger, consolidation, combination,
exchange of shares or other similar corporate changes, the
maximum number of shares of stock that may be awarded under the
Plan and the aggregate number of shares of Stock subject to
Restricted Stock grants then outstanding under the Plan, shall be
appropriately adjusted by the Committee whose determination shall
be conclusive; provided, however that fractional shares shall be
rounded to the nearest whole share.
Page 3
<PAGE>
-- In the event of any other change in the Stock, the Committee
shall in its sole discretion determine whether such change
equitably requires a change in the number or type of shares
subject to any outstanding Restricted Stock grant and any
adjustment made by the Committee shall be conclusive.
I. Employment
-- Nothing in this Plan shall interfere with or limit in any way the
right of the Company or its subsidiaries to terminate or change
any participant's employment at any time, nor shall the Plan
confer upon any participant any right to continue in the employ
of the Company or its subsidiaries.
II. ADMINISTRATION OF THE PLAN
A. The Plan shall be administered by the Committee composed of at least
two outside directors appointed from time to time by the Board, having
the duties and authority set forth herein in addition to any other
authority granted by the Board.
B. The Committee shall have the authority to establish the terms and
conditions of all awards including, but not limited to, establishing
the Restricted Period, performance periods, performance requirements,
and any share ownership obligations.
C. The Committee's decisions and determinations under the Plan need not
be uniform and may be made selectively among individuals whether or
not such individuals are similarly situated.
D. The Committee shall have full power, discretion and authority to
interpret, construe and administer the Plan and any part thereof, and
its interpretations and constructions thereof and actions taken
thereunder shall be final, conclusive and binding on all persons for
all purposes.
III. AMENDMENT OR TERMINATION
The Board or the Committee may, at any time, amend or terminate the Plan.
No amendments or termination of the Plan shall retroactively impair the
rights of any person with respect to an award.
Page 4
<PAGE>
Exhibit 10.3
WINN-DIXIE STORES, INC.
Key Employee Stock Option Plan
(Effective January 24, 1990, as amended through August 2, 1999)
-------------------
ARTICLE I.
Designation and Purpose of Plan
The Plan shall be known as the "Winn-Dixie Key Employee Stock Option Plan".
The purpose of the Plan is to promote in the Company's key employees additional
incentive by inducing and enabling them to become part owners of the business or
to increase their share of its ownership through the exercise of options granted
pursuant to the Plan.
ARTICLE II.
Definitions
The following words and phrases wherever used herein shall, unless the
context otherwise indicates, have the following meanings:
1. "Board" or "Board of Directors" shall mean the Board of Directors of
the Company.
2. A "Change in Control" shall mean:
(i) any person (as such term is used in Section 13(d) of the
Securities Exchange Act of 1934 (the "Act"), excluding (A) those
persons and entities included in the joint Schedule 13(G) filing
filed with the Securities and Exchange Commission on February 12,
1999, and all current or future heirs, successors and affiliates
to such persons and all trusts or other entities established or
maintained, or to be established or maintained, for the benefit
of such persons and their heirs, successors and affiliates
(collectively, the "Davis Family"), (B) any employee benefit plan
or related trust sponsored or maintained by the Company, and (C)
a corporation or other entity owned, directly or indirectly, by
all or substantially all of the shareholders of the Company
immediately prior to the transaction in substantially the same
proportions as their ownership of stock of the Company
("Person")), becoming the beneficial owner, directly or
indirectly, of twenty-five (25) percent or more of the
outstanding voting stock of the Company requiring the filing of a
report with the Securities and Exchange Commission under Section
13(d) of the Act; provided, that, at the time of the acquisition
of such beneficial ownership interest, such Person's beneficial
ownership interest in the Company exceeds that of the Davis
Family.
Page 1
<PAGE>
(ii) consummation of a merger, consolidation, liquidation or
dissolution of the Company, or the sale of all or substantially
all of the assets of the Company (a "Business Combination"), in
each case, unless, following such Business Combination, all or
substantially all of the shareholders of the Company immediately
prior to such Business Combination beneficially own, directly or
indirectly, more than fifty (50) percent of the then outstanding
shares of common stock and the combined voting power of the then
outstanding voting securities entitled to vote generally in the
election of directors of the corporation resulting from such
Business Combination; or
(iii)during any period of 24 consecutive months, individuals who at
the beginning of such period constitute the Board and any new
directors whose election by the Board or nomination for election
by the Company's shareholders was approved by a vote of at least
2/3 of the directors then still in office who either were
directors at the beginning of the period or whose election or
nomination for election was previously so approved, cease for any
reason to constitute a majority of the Board.
3. "Committee" shall mean a committee of at least two persons appointed
by the Board of Directors of the Company each of whom shall be an
outside director of the Company.
4. "Company" shall mean Winn-Dixie Stores, Inc.
5. "Eligible Employee" shall mean an officer or other key employee of the
Company or its subsidiaries who, in the judgment of the Committee, is
significantly responsible for or materially contributes to the
management, growth or profitability of the business of the Company or
its subsidiaries.
6. "Option" shall mean any option granted or held pursuant to the
provisions of the Plan. Options shall be evidenced by forms prescribed
by the Committee.
7. "Optionee" shall mean any person who at the time in question holds any
Option which then remains unexercised in whole or in part and which
has not expired or terminated.
8. "Plan" shall mean this Winn-Dixie Key Employee Stock Option Plan.
9. "Return on Equity" shall mean the percentage which the net earnings of
the Company for a particular fiscal year bears to the average net
shareholder equity for such fiscal year, in each case as reflected in
the financial statements of the Company for such fiscal year as
reported in the Company's Annual Report to its stockholders.
Page 2
<PAGE>
10. "Stock" shall mean the Company's Common Stock, having a par value of
$1.00 per share, as constituted on June 1, 1998, whether presently
authorized and unissued or held in the Company's treasury, or
hereafter reacquired by the Company. In the event that any change in
the outstanding shares of Stock (including an exchange of the Stock
for stock or other securities of another corporation) occurs by reason
of a Stock dividend or split, recapitalization, merger, consolidation,
combination, exchange of shares or other similar corporate changes,
the remaining number of shares of Stock which may thereafter be sold
pursuant to the Plan and the remaining number of shares of Stock which
may thereafter be purchased pursuant to the exercise of any Option
then outstanding shall be appropriately adjusted by the Committee,
whose determination shall be conclusive; provided, however that
fractional shares shall be rounded to the nearest whole share. In the
event of any other change in the Stock, the Committee shall in its
sole discretion determine whether such change equitably requires a
change in the number or type of shares subject to any outstanding
Option and any adjustment made by the Committee shall be conclusive.
ARTICLE III.
Shares Available for Purchase
Subject to the anti-dilution provisions contained in the definition of
Stock in Article II hereof, except as provided in Article VII hereof, the
maximum number of shares of Stock which may be sold pursuant to the exercise of
Options shall be 2,000,000. Except as provided in Article VII hereof, at no time
shall there be Options outstanding for the purchase of more than 2,000,000
shares of Stock (subject to said anti-dilution provisions) less such number of
shares as have previously been sold pursuant to the exercise of Options. If an
Option shall for any reason terminate or expire, any shares of Stock covered by
such Option immediately prior to its termination or expiration shall again
become available for sale pursuant to the exercise of other Options granted or
to be granted pursuant to the Plan.
ARTICLE IV.
Granting Expiration and Termination of Options
The Committee shall, by a vote of a majority thereof, have the exclusive
power to grant Options to purchase shares of Stock to Eligible Employees. Such
Options may be granted at any time and from time to time to such Eligible
Employees, for such number of shares as the Committee in its sole discretion
deems advisable, but in no event more than one-half (1/2) of the maximum number
of shares authorized under the Plan to any single "Eligible Employee". In all
cases the option price per share shall be the fair market value of the Stock on
the date on which the Option is granted (but not less than $1.00), and such
Option shall be exercisable, subject to the provisions of Article V hereof,
within the option period, at the end of which period it shall expire and become
void to the extent that it then remains unexercised.
Page 3
<PAGE>
The option period within which each Option granted hereunder shall be
exercisable shall commence on such date as the Committee shall determine and
shall end on December 31, 1998, as to Options granted after June 1, 1992 and
prior to May 31, 1994; and shall end not later than January 15th following the
sixth full fiscal year after the grant as to Options granted on May 31, 1994 or
thereafter.
Subject to the provisions of Article V hereof, if the Optionee to whom an
Option was originally granted shall cease to be employed by the Company for any
reason other than death he or she may, within the three months next succeeding
such cessation of employment (unless such Option shall sooner expire), exercise
such Option to the extent that he or she was entitled to exercise it as of the
date of such cessation, and at the expiration of such three months (unless it
shall have sooner expires) such Option shall terminate and become void to the
extent that it then remains unexercised. Leaves of absence may be granted to
Optionees who are employees of the Company because of illness or for such other
reasons as the Committee may determine, without being considered a termination
or cessation of employment.
The Plan shall not confer upon any Eligible Employee or any Optionee any
right with respect to continuance of employment by the Company, nor shall it
interfere in any way with his or her right, or the Company's right, to terminate
his or her employment at any time.
In the event of the death, while in the employ of the Company, of an
Optionee to whom an option was originally granted, such Option shall be
exercisable (to the extent provided in Article V hereof) within one year of such
date of death (unless it shall sooner expire), but only (a) by the person or
persons to whom such Option shall pass by such Optionee's will or the laws of
descent and distribution, and (b) if and to the extent that he or she was
entitled to exercise such Option at the date of his or her death. At the end of
such one year period the Option (unless it shall have sooner expired) shall
terminate and become void to the extent that it then remains unexercised.
ARTICLE V.
Exercise of Options
Each Option granted pursuant to the Plan prior to June 1, 1998 shall become
exercisable on and after such date as the Committee shall determine, to the
extent of 50% of the shares of Stock covered thereby at any time after the end
of a fiscal year of the Company for which the Company earned a Return on Equity
of 20% or more, if such Option was outstanding throughout such fiscal year. Each
such Option shall become exercisable as to the remaining 50% of the shares of
Stock covered thereby at any time after the end of the second consecutive fiscal
year of the Company in each of which two consecutive fiscal years the Company
earned a Return on Equity of 20% or more, if such Option was outstanding
throughout such period of two consecutive years.
Page 4
<PAGE>
Each Option granted pursuant to the Plan on June 1, 1998 and thereafter
shall become exercisable on and after such date as the Committee shall determine
that the Company has earned an average Return on Equity for three consecutive
fiscal years equal to or exceeding a percentage rate established by the
Committee at the time the Option is granted, if such Option was outstanding
throughout such period of three consecutive years.
All Options granted pursuant to the Plan that are outstanding at the time
of a Change in Control shall immediately vest upon the occurrence of the Change
in Control.
Subject to this Article V, any Optionee shall have the right to exercise
his or her Option in whole at any time or in part from time to time (provided
that each exercise shall be for 1,000 shares of Stock, as constituted at the
date of such exercise, or any multiple thereof unless such Option shall be for
less than 1,000 shares, in which event such exercise shall be for the full
number of shares represented by such Option) by submitting written notice
thereof to the Company or its duly authorized agent or representative, on such
form or forms as may be provided by the Company, accompanied by payment in full,
in cash, for the shares to be purchased.
ARTICLE VI.
Rights of Optionees
An Optionee shall not have any rights as a stockholder of the Company by
virtue of any Option until the date of issue of the certificate or certificates
for the shares of Stock purchased pursuant to its exercise.
No Option or any right thereunder of an Optionee to purchase shares of
Stock pursuant to the Plan may be sold, pledged, assigned or transferred
otherwise than by will or the laws of descent and distribution, and such Option
shall be exercisable, during the lifetime of the Optionee, only by the Optionee.
ARTICLE VII.
Effectiveness, Interpretation, Amendment,
Suspension and Termination of the Plan
The effectiveness of this Plan is subject to the condition that it shall
have been approved by the Shareholders of the Company within twelve months after
its adoption. Unless such approval by the Shareholders shall have been obtained,
this Plan and any Option granted pursuant hereto shall be null and void and
without effect.
Determinations of the Committee as to any question which may arise with
respect to the interpretation or administration of any provisions of the Plan
shall be final unless otherwise determined by the Board of Directors. The
Committee may require Eligible Employees to meet certain share ownership
obligations to receive grants under the Plan. The Committee may also prescribe
administrative rules under the Plan and may in its discretion appoint an
independent agent to act as Option Agent for Options granted pursuant to the
Plan and may empower such Option Agent to handle any or all administrative
maters with regard to Options granted by the Committee. Page 5 Unless
shareholder approval otherwise is required by applicable law or the rules of the
New York Stock Exchange, the Committee or the Board of Directors each shall have
the power at any time to add to, amend or repeal any of the provisions of the
Plan (including the power to increase the maximum number of shares of Stock
which may be sold pursuant to the exercise of Options), to suspend the operation
of the entire Plan or of any provision or provisions thereof for any period or
periods or to terminate the Plan in whole or in part. No such addition,
amendment, repeal, suspension or termination shall in any way affect the rights
of the holders of outstanding Options to purchase shares of Stock in accordance
with the provisions hereof.
Notwithstanding the foregoing, unless authorized or ratified by the holders
of a majority of the shares of Common Stock of the Company present or
represented at a meeting thereof at which a quorum shall be present, no
amendment to the Plan shall become effective which shall extend the maximum
period within which an Option may be exercisable to any date later than December
31, 1998, as to Options granted after June 1, 1992 but prior to May 31, 1994.
Page 6
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND> All amounts in thousands except per share data.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> JUN-28-2000
<PERIOD-END> Sep-22-1999
<CASH> 56,271
<SECURITIES> 0
<RECEIVABLES> 101,495
<ALLOWANCES> 0
<INVENTORY> 1,384,769
<CURRENT-ASSETS> 1,669,430
<PP&E> 1,208,761
<DEPRECIATION> 0
<TOTAL-ASSETS> 3,012,327
<CURRENT-LIABILITIES> 1,416,803
<BONDS> 0
0
0
<COMMON> 148,629
<OTHER-SE> 1,244,366
<TOTAL-LIABILITY-AND-EQUITY> 1,396,022
<SALES> 3,162,171
<TOTAL-REVENUES> 3,162,171
<CGS> 2,315,524
<TOTAL-COSTS> 829,250
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 6,587
<INCOME-PRETAX> 35,885
<INCOME-TAX> 13,816
<INCOME-CONTINUING> 22,069
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 22,069
<EPS-BASIC> 0.15
<EPS-DILUTED> 0.15
</TABLE>
