As filed with the Securities and Exchange Commission on November 22, 2000.
Registration No. 333-
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------
Form S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
---------------
WINN-DIXIE STORES, INC.
(Exact name of registrant as specified in charter)
Florida 59-0519290
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
E. Ellis Zahra, Jr.
Senior Vice President and
General Counsel
Winn-Dixie Stores, Inc.
5050 Edgewood Court 5050 Edgewood Court
Jacksonville, Florida 32254-3699 Jacksonville, Florida 32254-3699
(904) 783-5000 (904) 783-5000
(Address, including zip code, and (Name, address, including zip code
telephone number, including area code, and of telephone number, including
Registrant's principal executive offices) area code, of agent for service
of process)
---------------
Copies to:
<TABLE>
<S> <C> <C>
David P. Bicks, Esq. Kenneth M. Kirschner, Esq. E. Ellis Zahra, Jr., Esq.
LeBoeuf, Lamb, Greene & MacRae, L.L.P. LeBoeuf, Lamb, Greene & MacRae, L.L.P. Winn-Dixie Stores, Inc.
125 West 55th Street 50 North Laura Street, Suite 2800 5050 Edgewood Court
New York, NY 10019-5389 Jacksonville, Florida 32202-3650 Jacksonville, Florida 32254-3699
---------------
</TABLE>
Approximate date of commencement of proposed sale to public: From time to
time after the effective date of this registration statement as determined by
market conditions.
---------------
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, please check the following box. [X]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
---------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<S> <C> <C> <C> <C>
=============================================== ===================== ====================== ===================== =================
Proposed Maximum Proposed Maximum Amount of
Title of Each Class of Amount to be Offering Price Aggregate Registration
Securities to be Registered(1) Registered (1) Per Unit(1) Offering Price(1)(2) Fee
----------------------------------------------- --------------------- ---------------------- --------------------- -----------------
Debt Securities and Warrants to purchase Debt $1,000,000,000 100% $1,000,000,000 $264,000
Securities.................................
=============================================== ===================== ====================== ===================== =================
</TABLE>
(1)Or , if any Debt Securities are issued at original issue discount, such
greater amount as may result in the initial offering prices for Debt Securities
and Warrants aggregating $1,000,000,000.
(2)Estimated solely for the purpose of computing the registration fee. Any
offering of Debt Securities or Warrants denominated in any foreign currency or
foreign currency units will be treated as the equivalent in U.S. dollars based
on the exchange rate applicable to the purchase of such Debt Securities or
Warrants from the registrant.
---------------
The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant shall
file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act or until the Registration Statement shall become effective on
such date as the Commission, acting pursuant to said Section 8(a), may
determine.
--------------------------------------------------------------------------------
<PAGE>
SUBJECT TO COMPLETION, DATED NOVEMBER 22, 2000
PROSPECTUS
$1,000,000,000
WINN-DIXIE STORES, INC.
Debt Securities
Warrants to Purchase Debt Securities
---------------
We may sell from time to time our senior unsecured debt securities and
warrants to purchase our debt securities having a total initial offering price
of up to U.S.$1,000,000,000, or the equivalent amount if any of these securities
are denominated in a foreign currency or foreign currency unit. The debt
securities will rank on a parity in right of payment with all of our other
unsecured and unsubordinated indebtedness, and may be issued in one or more
series. We will provide the specific terms of these securities in supplements to
this prospectus. You should read this prospectus and the accompanying prospectus
supplement carefully before you invest.
We may offer these securities directly or through underwriters, dealers or
agents. The accompanying prospectus supplement describes the specific terms of
our plan of distribution. The discussion under the heading "Plan of
Distribution" below provides more information on this topic.
---------------
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or passed upon the
adequacy or accuracy of this prospectus. Any representation to the contrary is a
criminal offense.
---------------
The date of this prospectus is , 2000
1
The information in this prospectus is not complete and may be changed. We may
not sell these securities until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an offer
to sell these securities and is not soliciting an offer to buy these securities
in any state where the offer or sale is not permitted.
<PAGE>
TABLE OF CONTENTS
Forward-Looking Statements.................................................. 2
About This Prospectus....................................................... 3
Where You Can Find More Information......................................... 3
Incorporation of Information We File with the SEC........................... 3
Winn-Dixie Stores, Inc...................................................... 4
Ratio of Earnings to Fixed Charges.......................................... 4
Application of Proceeds..................................................... 5
Description of Debt Securities.............................................. 5
Description of Warrants..................................................... 19
Plan of Distribution........................................................ 20
Legal Opinions.............................................................. 22
Experts..................................................................... 22
FORWARD-LOOKING STATEMENTS
This prospectus, including the documents that we incorporate by
reference, contains forward-looking statements within the meaning of Section 27A
of the Securities Act of 1933, and Section 21E of the Securities Exchange Act of
1934. These statements relate to, among other things, capital expenditures, cost
reduction, cash flow and operating improvements and are indicated by words or
phrases such as "believes," "anticipates," "estimates," "plans," "projects,"
"continuing," "ongoing," "expects," "intends" and similar words or phrases.
Although forward-looking statements reflect our current views, those statements
are subject to risks and uncertainties. The following factors are among the
principal factors that could cause actual results to differ materially from the
forward-looking statements:
o our ability to successfully complete the restructuring of our
management and retail operations, and to realize the cost savings and
other benefits of such restructuring;
o pricing pressures and other competitive factors;
o general business and economic conditions in our operating regions,
including the rate of inflation/deflation and changes in population,
consumer demands and spending, types of employment and numbers of
jobs;
o changes in federal, state or local legislation or regulations
affecting the retail food and food distribution industries (including
environmental compliance);
o the availability and integration of potential acquisitions; and
o the availability and terms of financing.
Consequently, actual events and results may vary significantly from
those included in or contemplated or implied by the forward-looking statements.
We undertake no obligation to publicly update or revise any forward-looking
statements, whether as a result of new information, future events or otherwise.
------------------------------------------------------------------------
2
<PAGE>
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with
the United States Securities and Exchange Commission ("SEC") utilizing a "shelf"
registration process. Under this process, we may sell any combination of the
securities described in this prospectus from time to time in one or more
offerings with a total initial offering price of up to U.S.$1,000,000,000, or
the equivalent amount if any of these securities are denominated in a foreign
currency or foreign currency unit. This prospectus provides you with a general
description of the securities we may offer. Each time we offer to sell
securities, we will provide a supplement to this prospectus that will contain
specific information about the terms of that offering. The prospectus supplement
may also add, update or change information contained in this prospectus. You
should read both this prospectus and any prospectus supplement together with the
additional information described under the heading "Where You Can Find More
Information" and "Incorporation of Information We File with the SEC."
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and current reports and other information
with the SEC. You may read and copy any document that we file with the SEC at
the SEC's public reference rooms in Washington, D.C., New York, New York and
Chicago, Illinois. You may call the SEC at 1-800-SEC-0330 to obtain further
information on the operation of the public reference rooms. Our SEC filings are
also available to the public over the Internet at the SEC's Internet web site at
http://www.sec.gov. Because our common stock is listed on the New York Stock
Exchange, you may also read our SEC filings at the offices of the New York Stock
Exchange located at 20 Broad Street, New York, New York 10005.
INCORPORATION OF INFORMATION WE FILE WITH THE SEC
The SEC allows us to incorporate by reference the information we file
with it, which means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference is
an important part of this prospectus. Information that we file later with the
SEC will automatically update and supercede information contained in this
prospectus and the accompanying prospectus supplement. We incorporate by
reference the documents listed below:
o Our Annual Report on Form 10-K for the fiscal year ended June 28,
2000;
o Our Quarterly Report on Form 10-Q for the quarter ended September 20,
2000; and
o Our Current Report on Form 8-K dated November 6, 2000.
We also incorporate by reference any future filings made with the SEC
under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934,
as amended, until we sell and distribute all of the securities covered by this
prospectus.
You may request a copy of any of these filings, at no cost, by writing
or telephoning us at:
Winn-Dixie Stores, Inc.
Attention: Shareholder Relations
5050 Edgewood Court
Jacksonville, Florida 32254-3699
Telephone: (904) 783-5000
You should rely only on the information contained or incorporated by
reference in this prospectus or any prospectus supplement. We have not
authorized anyone else to provide you with additional or different information.
If anyone else has provided you with additional or different information, you
should not rely on it. You should not assume that the information in this
prospectus or any prospectus supplement is accurate as of any date other than
the date on the front of those documents regardless of the time of delivery of
this prospectus and the accompanying prospectus supplement or any sale of the
securities. We may provide additional updating information in the future by
means of supplements to this prospectus, the accompanying prospectus supplement
or the documents incorporated by reference. We are not offering to sell or
soliciting an offer to buy the securities described in this prospectus in any
state where the offer or sale is not permitted.
3
<PAGE>
WINN-DIXIE STORES, INC.
We are one of the nation's largest food retailers based upon published
reports of sales, with 1,079 supermarkets in 14 states (primarily in the
Southeast) and in the Bahamas Islands as of September 20, 2000. Through a chain
of retail self-service food stores we offer broad lines of merchandise,
including nationally advertised and private label brands. Food items sold
include dry groceries, dairy products, baked goods, meats, poultry, fish, fresh
fruit, vegetables, frozen foods and other items commonly marketed by retail food
stores. We also sell many general merchandise items, such as magazines, soaps,
paper products, health and cosmetic products, hardware and numerous small
household items. In addition, many locations have company-operated ancillary
departments such as pharmacies and photo labs, as well as in-store banks
operated by independent third parties that rent space from us. We support our
retail operations through 17 strategically located warehouse distribution
facilities and 20 manufacturing facilities. In addition, we are in the process
of piloting a liquor store and two fuel centers. Based upon the operating
results of these test locations, we will determine whether or not future
investments in these areas should be made.
Winn-Dixie was founded in 1925 and was incorporated in 1928. Our
principal executive offices are located at 5050 Edgewood Court, Jacksonville,
Florida 32254-3699 (telephone number: (904) 783-5000).
RATIO OF EARNINGS TO FIXED CHARGES
The following table shows the ratios of earnings to fixed charges of
Winn-Dixie for the periods indicated:
<TABLE>
<S> <C> <C> <C> <C> <C> <C>
12 Weeks Ended Fiscal Year Ended
September 20, June 28, June 30, June 24, June 25, June 26,
2000 2000 1999 1998 1997 1996
Ratio of Earnings to Fixed
Charges (1) 1.2 * 2.1 2.3 2.5 3.0
Adjusted Ratio of Earnings
to Fixed Charges excluding
non-recurring charges (1)
(2) 1.4 1.4 2.1 2.4 2.5 3.0
</TABLE>
--------------------------------------------------------------------------------
* For fiscal year ended June 28, 2000, earnings were inadequate to cover
fixed charges due to non-recurring charges totaling $405 million (see
note 2). The dollar amount of the coverage deficiency for the fiscal year
ended June 28, 2000 was $302 million.
(1) For purposes of computing these ratios, earnings represent consolidated
income before income taxes and fixed charges, and fixed charges represent
interest expense, including interest on capitalized leases, and the
applicable portion of consolidated rental expense which approximates the
interest portion of lease payments
(2) The adjusted ratio of earnings to fixed charges for the 12 weeks ended
September 20, 2000 and the fiscal year ended June 28, 2000, respectively,
reflects the exclusion of charges of $9 million and $405 million,
respectively, relating to the restructuring of our management and retail
operations and other non-recurring charges. The adjusted ratio of
earnings to fixed charges for the fiscal year ended June 24, 1998
reflects the exclusion of charges totaling $18 million relating to the
closing of a facility.
4
<PAGE>
APPLICATION OF PROCEEDS
Unless otherwise stated in the applicable prospectus supplement, we
intend to use the net proceeds from the sale of the debt securities for general
corporate purposes, which may include the repayment of indebtedness, capital
expenditures and working capital. Pending application for those purposes, we may
invest the net proceeds in short-term investments and marketable securities.
DESCRIPTION OF DEBT SECURITIES
The debt securities will be senior unsecured obligations of Winn-Dixie
issued in one or more series under an indenture to be entered into between
Winn-Dixie and a banking institution organized under the laws of the United
States of America or any state (the "trustee"). The form of the indenture has
been filed as an exhibit to our registration statement. The terms of any series
of debt securities will be those specified in the indenture and in the
certificates evidencing that series of debt securities and those made part of
the indenture by the Trust Indenture Act of 1939. The following summary of
selected provisions of the indenture and the debt securities is not complete,
and the summary of selected terms of a particular series of debt securities
included in the applicable prospectus supplement also will not be complete. You
should read all of the provisions of the indenture, including the definitions of
certain terms, or the form of certificate for the debt securities which are
filed as exhibits to our registration statement. To obtain a copy of the
indenture or the form of certificate for the debt securities, see "Where You Can
Find More Information" in this prospectus. The following summary and the summary
in the applicable prospectus supplement are qualified in their entirety by
reference, to all of the provisions of the indenture and the certificates
evidencing the debt securities, which provisions, including defined terms, are
incorporated by reference in this prospectus. Parenthetical section references
refer to the indenture. Capitalized terms used in this summary and not defined
are defined in the indenture. When we refer to "Winn-Dixie" in this section, we
mean Winn-Dixie Stores, Inc., excluding, unless otherwise expressly stated or
the context otherwise requires, its subsidiaries.
The following description of debt securities describes general terms
and provisions of the series of debt securities to which any prospectus
supplement may relate. When we offer to sell a series of debt securities, we
will describe the specific terms of the series in the applicable prospectus
supplement. If any particular terms of the debt securities described in a
prospectus supplement differ from any of the terms described in this prospectus,
then the terms described in the applicable prospectus supplement will supersede
the terms described in this prospectus.
Specific Terms of Each Series
Each time that we issue a new series of debt securities, the prospectus
supplement relating to that series will specify the particular amount, price and
other applicable terms of these debt securities. These terms may include:
o the title of the debt securities;
o any limit on the total principal amount of the series of debt
securities;
o the price or prices (expressed as a percentage of the aggregate
principal amount) at which the debt securities will be issued;
o the date or dates on which the principal of and premium, if any, on
the debt securities will be payable;
o the rate or rates, which may be fixed or floating, per annum at which
the series of debt securities will bear interest, if any, or the
method of determining such rate or rates;
o the date from which any such interest will accrue on the series of
debt securities, the date or dates on which we will pay interest for
such debt securities and the record date for determining who is
entitled to interest payable on any interest payment date if such
record date is to be determined differently than as set forth in the
indentures;
o the place or places where principal of and premium, if any, and
interest on the debt securities will be payable;
5
<PAGE>
o any terms and conditions of any mandatory or optional redemption or
repayment option, including any provisions for any sinking or other
analogous fund;
o the denominations in which the series of debt securities will be
issued, if other than denominations of $1,000 and integral multiples
of $1,000;
o the portion of the principal amount of the debt securities, if other
than the entire principal amount, that is payable on the declaration
of acceleration of the maturity;
o the applicable overdue rate, if other than the interest rate stated in
the title of the series of debt securities;
o any additions to the events of default;
o the currency or currency units for which the series of debt securities
may be purchased and the currency or currency units in which the
principal, premium, if any, and interest may be payable;
o whether the debt securities are to be issued in the form of one or
more global securities, and, if so, the identity of the depositary or
depositaries of such global security or securities; and
o any other specific terms of the debt securities that are not
inconsistent with the indenture. (ss.301)
We may issue debt securities at a discount below their stated principal
amount, bearing no interest or interest at a rate that, at the time of issuance,
is below market rates. If we issue these kinds of debt securities, we will
provide you with additional information regarding the tax consequences and
special considerations applicable to such series of debt securities in the
related prospectus supplement.
In addition, we may sell any series of debt securities for foreign
currencies or foreign currency units or pay the principal of, premium, if any,
or interest on any series of debt securities in foreign currencies or foreign
currency units. If we issue these kinds of debt securities, we will provide you
with additional information regarding the restrictions, elections, tax
consequences, specific terms and other information applicable to such series of
debt securities in the related prospectus supplement.
Form and Denominations
The debt securities of a series may be issued in whole or in part in
the form of one or more global debt securities. Global debt securities will be
deposited with, or on behalf of, a depositary identified in the applicable
prospectus supplement relating to the series. Global debt securities may be
issued in either registered or bearer form and in either temporary or permanent
form. Unless and until it is exchanged in whole or in part for individual
certificates evidencing debt securities, a global debt security may not be
transferred except as a whole by the depositary to its nominee or by the nominee
to the depositary, or by the depositary or its nominee to a successor depositary
or to a nominee of the successor depositary. (ss.203)
Winn-Dixie anticipates that global debt securities will be deposited
with, or on behalf of, The Depository Trust Company ("DTC"), New York, New York
and that global debt securities will be registered in the name of DTC's nominee,
Cede & Co. Winn-Dixie also anticipates that the following provisions will apply
to the depository arrangements with respect to global debt securities.
Additional or differing terms of the depository arrangements will be described
in the applicable prospectus supplement.
DTC has advised Winn-Dixie that it is:
o a limited-purpose trust company organized under the New York Banking
Law;
o a "banking organization" within the meaning of the New York Banking
Law;
o a member of the Federal Reserve System;
o a "clearing corporation" within the meaning of the New York Uniform
Commercial Code; and
6
<PAGE>
o a "clearing agency" registered pursuant to the provisions of Section
17A of the Securities Exchange Act.
DTC holds securities that its participants deposit with DTC. DTC also
facilitates the settlement among its participants of securities transactions,
including transfers and pledges, in deposited securities through electronic
computerized book-entry changes in participants' accounts, which eliminates the
need for physical movement of securities certificates. Direct participants
include securities brokers and dealers, banks, trust companies, clearing
corporations and other organizations. DTC is owned by a number of its direct
participants and by the New York Stock Exchange, Inc., the American Stock
Exchange, Inc. and the National Association of Securities Dealers, Inc. Access
to the DTC system is also available to others, sometimes referred to in this
prospectus as indirect participants, that clear transactions through or maintain
a custodial relationship with a direct participant either directly or
indirectly. Indirect participants include securities brokers and dealers, banks
and trust companies. The rules applicable to DTC and its participants are on
file with the SEC.
Purchases of debt securities within the DTC system must be made by or
through direct participants, which will receive a credit for the debt securities
on DTC's records. The ownership interest of the actual purchaser or beneficial
owner of a debt security, is in turn recorded on the direct and indirect
participants' records. Beneficial owners will not receive written confirmation
from DTC of their purchases, but beneficial owners are expected to receive
written confirmations providing details of the transactions, as well as periodic
statements of their holdings, from the direct or indirect participants through
which they purchased debt securities. Transfers of ownership interests in debt
securities are to be accomplished by entries made on the books of participants
acting on behalf of beneficial owners. Beneficial owners will not receive
certificates representing their ownership interests in the debt securities,
unless use of the book-entry system for the debt securities is discontinued or
in other limited circumstances.
To facilitate subsequent transfers, all debt securities deposited by
participants with DTC will be registered in the name of DTC's nominee, Cede &
Co. The deposit of debt securities with DTC and their registration in the name
of Cede & Co. will not change the beneficial ownership of the debt securities.
DTC has no knowledge of the actual beneficial owners of the debt securities.
DTC's records reflect only the identity of the direct participants to whose
accounts the debt securities are credited. Those participants may or may not be
the beneficial owners. The participants are responsible for keeping account of
their holdings on behalf of their customers.
Conveyance of notices and other communications by DTC to direct
participants, by direct participants to indirect participants and by direct
participants and indirect participants to beneficial owners will be governed by
arrangements among them, subject to any legal requirements in effect from time
to time.
Redemption notices shall be sent to DTC or its nominee. If less than
all of the debt securities of a series are being redeemed, DTC will reduce the
amount of the interest of each direct participant in the debt securities under
its procedures.
In any case where a vote may be required with respect to the debt
securities of any series, neither DTC nor Cede & Co. will give consents for or
vote the global debt securities. Under its usual procedures, DTC will mail an
omnibus proxy to Winn-Dixie as soon as possible after the record date. The
omnibus proxy assigns the consenting or voting rights of Cede & Co. to those
direct participants to whose accounts the debt securities are credited on the
record date identified in a listing attached to the omnibus proxy.
Principal and interest payments on the debt securities will be made to
Cede & Co., as nominee of DTC. DTC's practice is to credit direct participants'
accounts on the relevant payment date unless DTC has reason to believe that it
will not receive payments on the payment date. Payments by direct and indirect
participants to beneficial owners will be governed by standing instructions and
customary practices, as is the case with securities held for the account of
customers in bearer form or registered in "street name." Those payments will be
the responsibility of participants and not of DTC or Winn-Dixie, subject to any
legal requirements in effect from time to time. Payment of principal and
interest to Cede & Co. is the responsibility of Winn-Dixie, disbursement of
payments to direct participants is the responsibility of DTC, and disbursement
of payments to the beneficial owners is the responsibility of direct and
indirect participants.
Except as described in this prospectus, a beneficial owner of an
interest in a global debt security will not be entitled to have debt securities
registered in their names and will not receive physical delivery of debt
securities.
7
<PAGE>
Accordingly, each beneficial owner must rely on the procedures of
DTC to exercise any rights under the debt securities.
The laws of some jurisdictions may require that some purchasers of
securities take physical delivery of securities in definitive form. These laws
may impair the ability to transfer or pledge beneficial interests in global debt
securities.
DTC is under no obligation to provide its services as depositary for
the debt securities of any series and may discontinue providing its services at
any time. Neither Winn-Dixie nor the trustee will have any responsibility for
the performance by DTC or its participants or indirect participants under the
rules and procedures governing DTC. As noted above, beneficial owners of debt
securities generally will not receive certificates representing their ownership
interests in the debt securities. However, if
o DTC notifies Winn-Dixie that it is unwilling or unable to continue as
a depositary for the global debt securities of any series or if DTC
ceases to be a clearing agency registered under the Securities
Exchange Act and a successor depositary is not appointed within 90
days of the notification or of Winn-Dixie becoming aware of DTC's
ceasing to be so registered, as the case may be,
o Winn-Dixie determines, in its sole discretion, not to have the debt
securities of any series represented by one or more global debt
securities, or
o an event of default under the indenture has occurred and is continuing
with respect to the debt securities of any series,
Winn-Dixie will prepare and deliver certificates for the debt
securities of that series in exchange for beneficial interests in the global
debt securities. Any beneficial interest in a global debt security that is
exchangeable under the circumstances described in the preceding sentence will be
exchangeable for debt securities in definitive certificated form registered in
the names that the depositary shall direct. It is expected that these directions
will be based upon directions received by the depositary from its participants
with respect to ownership of beneficial interests in the global debt securities.
(ss.ss.301, 302)
Ranking of Debt Securities; Holding Company Structure
The debt securities will be unsecured unsubordinated obligations of
Winn-Dixie. The debt securities will rank on a parity in right of payment with
all of our other unsecured and unsubordinated indebtedness.
The debt securities are obligations exclusively of Winn-Dixie. Although
we own a substantial portion of our consolidated assets directly, a majority of
our consolidated assets are held by our subsidiaries. As a result, the debt
securities will be effectively subordinated to all existing and future
liabilities of our subsidiaries. Therefore, our rights and the rights of our
creditors, including the holders of the debt securities, to participate in the
assets of any subsidiary upon that subsidiary's liquidation or reorganization
will be subject to the prior claims of the subsidiary's creditors, except to the
extent that we may ourselves be a creditor with recognized claims against the
subsidiary.
8
<PAGE>
Certain Covenants
Limitation on Liens. The indenture provides that we will not, and will
not permit any Restricted Subsidiary to, directly or indirectly create, incur,
assume, guarantee or otherwise become liable for any Debt secured by a Lien on
any Principal Property or by a Lien on any Debt or shares of capital stock of,
or other ownership interests in, any Restricted Subsidiary ("Secured Debt")
(whether such Principal Property, Debt, shares of capital stock or ownership
interests are owned or outstanding at the date of the indenture or thereafter
acquired or issued, as the case may be) if, immediately after giving effect
thereto, the sum, without duplication, of (a) the aggregate principal amount of
all Secured Debt (other than Excluded Debt (as defined below)) and (b) the
aggregate amount of all Attributable Debt in respect of Sale and Leaseback
Transactions (other than Excluded Transactions (as defined below)) would exceed
10% of our Consolidated Net Tangible Assets as of the date of determination,
unless we provide, concurrently with or prior to the creation, incurrence,
assumption or guarantee of such Secured Debt, that the debt securities, shall be
secured equally and ratably with (or, at the option of Winn-Dixie, prior to)
such Secured Debt (but only for so long as such Secured Debt is so secured).
The provisions set forth in the immediately preceding paragraph shall
not apply to Debt secured by the following Liens ("Excluded Debt"):
(1) Liens existing as of the date of the indenture;
(2) Liens on any Principal Property, Debt, shares of capital stock or
other ownership interests existing at the time of acquisition thereof
(whether by merger, consolidation, acquisition of stock or assets or
otherwise) by us or any of our Subsidiaries;
(3) Liens upon or with respect to any Principal Property acquired,
constructed or improved by us or any of our Subsidiaries after the date of
the indenture which (A) are created, incurred or assumed contemporaneously
with, or within 360 days after, the latest to occur of the acquisition
(whether by merger, consolidation, acquisition of stock or assets or
otherwise), or the completion of construction or improvement, as the case
may be, of such Principal Property, and (B) secure Debt incurred or assumed
to finance all or any part of the purchase price of such Principal Property
or the cost of such construction or improvement, as the case may be,
provided that such Liens are limited to the Principal Property so acquired,
constructed or improved and the amount of such Debt does not exceed the
purchase price of such acquisition (determined as of the date of such
acquisition) or the cost of such construction or improvement (determined as
of the date of completion of such construction or improvement), as the case
may be, and provided, further, that for purposes of this clause (3), the
date of acquisition of any Principal Property acquired by merger,
consolidation or acquisition of stock shall be the effective date of such
merger or consolidation or the date such stock acquisition is completed, as
the case may be;
(4) Liens originally entered into by a Person other than us or one of
our Subsidiaries and existing at the time such Person was acquired by us or
any of our Subsidiaries (whether by merger, consolidation, acquisition of
stock or otherwise);
(5) Liens on the property of any Subsidiary securing Debt owing by
such Subsidiary to us or to any other Subsidiary;
(6) Liens in favor of governmental bodies to secure advance or
progress payments pursuant to any contract or statute and Liens in favor of
governmental bodies incurred in connection with industrial revenue,
pollution control, private activity bond or similar financing;
(7) Liens or deposits in connection with workers' compensation,
unemployment insurance and other social security legislation and deposits
securing liability to insurance carriers under insurance or self-insurance
arrangements;
(8) Liens for taxes, governmental assessments or similar governmental
charges or levies not yet due or delinquent, or which can thereafter be
paid without penalty or which are being contested by us in good faith and
by appropriate action;
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(9) statutory liens and landlords', carriers', workers',
warehousemen's, mechanics', suppliers', materialmen's, repairmen's and
other similar Liens arising by operation of law in the ordinary course of
business and with respect to amounts not yet delinquent or which are being
contested by us in good faith and by appropriate action;
(10) Liens or deposits to secure (a) performance in connection with
bids, tenders, contracts or leases to which we or a Subsidiary is a party
and which Liens and deposits do not secure Debt or (b) surety, stay,
appeal, indemnity, customs or performance bonds which do not involve Debt;
(11) easements, exceptions, reservations or similar encumbrances on
real property that do not materially interfere with the operation of such
property or impair the value of such property for the purposes for which
such property is or may reasonably be expected to be used by us or our
Subsidiaries;
(12) Liens created in connection with a project financed with, and
created to secure indebtedness or lease obligations substantially related
to (a) the acquisition of assets not previously owned by us or any
Subsidiary, or (b) the financing of a project involving the development or
expansion of our properties or properties of any Subsidiary, as to which
the obligee with respect to such indebtedness or obligation has no recourse
to us or any Subsidiary or any of our assets or any assets of any
Subsidiary other than the assets which were acquired with the proceeds of
such transaction or the project financed with the proceeds of such
transaction (and the proceeds thereof); and
(13) Liens for the sole purpose of extending, renewing or replacing in
whole or in part the Debt secured thereby referred to in the foregoing
clauses (1) through (12), inclusive, or in this clause (13); provided,
however, that the Debt excluded pursuant to this clause (13) shall be
excluded only in an amount not to exceed the principal amount of Debt so
secured at the time of such extension, renewal or replacement (together
with any premium, fees or expenses (other than interest) payable in
connection with any such replacement, extension or renewal), and that such
extension, renewal or replacement shall be limited to all or a part of the
Principal Property, Debt, shares of capital stock or other ownership
interests, as the case may be, subject to the Lien so extended, renewed or
replaced. (ss.1006)
Limitation on Sale and Leaseback Transactions. The indenture provides
that we will not, and will not permit any of our Restricted Subsidiaries to
directly or indirectly, enter into, assume, guarantee or otherwise become liable
with respect to any Sale and Leaseback Transaction involving any Principal
Property or portion thereof (whether such Principal Property is owned at the
date of the indenture or thereafter acquired), if, immediately after giving
effect thereto, the sum, without duplication, of (a) the aggregate principal
amount of all Secured Debt (other than Excluded Debt) and (b) the aggregate
amount of all Attributable Debt in respect of Sale and Leaseback Transactions
(other than Excluded Transactions) would exceed 10% of our Consolidated Net
Tangible Assets as of the date of determination.
The provisions set forth in the immediately preceding paragraph shall
not apply to any Sale and Leaseback Transaction (an "Excluded Transaction") if:
(1) within 180 days from the date of the sale of the Principal
Property (or portion thereof) involved in such Sale and Leaseback
Transaction, Winn-Dixie or such Subsidiary applies an amount not less than
the net proceeds of the sale of the Principal Property (or portion thereof)
sold pursuant to such Sale and Leaseback Transaction and to retire (other
than pursuant to a payment at maturity, a mandatory sinking fund payment or
any other mandatory repurchase, redemption, prepayment or retirement)
Funded Debt of Winn-Dixie or any Subsidiary (other than Funded Debt held by
Winn-Dixie or any Subsidiary of Winn-Dixie and Funded Debt of Winn-Dixie
which is subordinate in right of payment to the securities), or to purchase
other property having a fair value (as determined by the Board of Directors
by Board Resolution) at least equal to the net proceeds of the sale (as
determined by the Board of Directors by Board Resolution) of the Principal
Property (or portion thereof) sold in such Sale and Leaseback Transaction
and which other property constitutes a Principal Property (or portion
thereof);
(2) such Sale and Leaseback Transaction occurs within 360 days after
the latest to occur of the date of acquisition (whether by merger,
consolidation, acquisition of stock or assets or otherwise) by us or
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such Subsidiary or the completion of construction of the Principal Property
(or portion thereof) sold pursuant to such transaction;
(3) such Sale and Leaseback Transaction is between us and any
Subsidiary or between any Subsidiaries;
(4) at the time such Sale and Leaseback Transaction is entered into,
the term of the related lease (including any renewals thereof as the option
of the lessor or the lessee) to us or such Subsidiary of the Principal
Property (or portion thereof) sold pursuant to such transaction is three
years or less;
(5) such Sale and Leaseback Transaction is a transaction in which the
relevant Principal Property (or portion thereof) is sold to and leased back
from a government or governmental body in connection with industrial
revenue, pollution control, private activity bond or similar financing;
(6) such Sale and Leaseback Transaction was entered into by us or one
of our Subsidiaries prior to the date of the indenture;
(7) in the case of a Sale and Leaseback Transaction originally entered
into by a Person other than us or one of our Subsidiaries, such Sale and
Leaseback Transaction was existing at the time such Person was acquired by
us or any of our Subsidiaries (whether by merger, consolidation,
acquisition of stock or otherwise); or
(8) such Sale and Leaseback Transaction is for the sole purpose of
extending, renewing or replacing in whole or in part the Liens referred to
in the clauses (1), (2) and (3) under "-- Covenants of Winn-Dixie --
Limitations on Liens" provided, however, that the net proceeds of the sale
of the Principal Property sold pursuant to such Sale and Leaseback
Transaction excluded pursuant to this clause (10) shall be excluded only in
an amount not to exceed the principal amount of Debt so secured by such
Liens at the time of such extension, renewal or replacement (together with
any premium, fee or expenses (other than interest) payable in connection
with any such replacement, extension or renewal), and that such extension,
renewal or replacement shall be limited to all or a part of the Principal
Property, Debt, shares of capital stock or other ownership interests, as
the case may be, subject to the Liens so extended, renewed or replaced.
(ss.1007)
The indenture does not restrict the incurrence of unsecured debt by us
or any of our Subsidiaries or, except as set forth under "--Consolidation,
Merger and Sale of Assets", the transfer of a Principal Property to Winn-Dixie,
a Subsidiary or any third party.
Consolidation, Merger and Sale of Assets. The indenture provides that
we will not, in any transaction or series of related transactions, consolidate
or merge with or into any other person or sell, lease, assign, transfer or
otherwise convey all or substantially all of its assets to any other person
unless:
o either (1) we will be the continuing person (in the case of a merger)
or (2) the successor person (if other than us) formed by or resulting
from the consolidation or merger or to which such assets shall have
been sold, leased, assigned, transferred or otherwise conveyed is a
corporation organized and existing under the laws of the United States
of America, any state thereof or the District of Columbia and shall
expressly assume the due and punctual payment of the principal of,
premium, if any, and interest, if any, on all the securities
outstanding under the indenture and the due and punctual performance
of all of our other obligations under the indenture and the debt
securities;
o immediately after giving effect to such transaction or transactions,
no event of default under the indenture, and no event which, after
notice or lapse of time or both would become an event of default under
the indenture, shall have occurred and be continuing; and
o certain other conditions are met. (ss.801)
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Upon any consolidation by Winn-Dixie with or merger of Winn-Dixie into
any other person or any sale, assignment, transfer, lease or conveyance of all
or substantially all of the assets of Winn-Dixie to any person in accordance
with the provisions of the indenture described above, the successor person
formed by the consolidation or into which Winn-Dixie is merged or to which the
sale, assignment, transfer, lease or other conveyance is made shall succeed to,
and be substituted for, and may exercise every right and power of, Winn-Dixie
under the indenture with the same effect as if such successor person had been
named as Winn-Dixie therein; and thereafter, except in the case of a lease, the
predecessor person shall be released from all obligations and covenants under
the indenture and the debt securities. (ss.802)
The indenture provides that customary "granting" clauses in a mortgage,
security agreement or other similar instrument (a "security agreement") shall
not be deemed to be a sale, lease, assignment, transfer or conveyance of assets
within the meaning of the second preceding paragraph; provided that such
security agreement is entered into solely for the purpose of granting a
mortgage, security interest or other lien on assets to a third party (a "secured
party") for the purpose of securing an obligation to such secured party and not
as a means of effecting a direct or indirect sale, lease, assignment, transfer
or other conveyance of assets to such secured party; and provided, further, that
the foregoing provisions of this paragraph shall cease to be applicable with
respect to the assets subject to any security agreement if such assets shall in
fact have been sold, leased, assigned, transferred or otherwise conveyed to a
person other than Winn-Dixie or one of its Restricted Subsidiaries, whether upon
foreclosure under such security agreement, exercise by the secured party of its
rights thereunder or otherwise. (ss.1007)
The indenture also provides that if, upon or as a result of any such
consolidation, merger, sale, lease, assignment, transfer or other conveyance,
any Principal Property or portion thereof or any Debt or shares of capital stock
of, or other ownership interests in, any Restricted Subsidiary would thereupon
become subject to any Lien securing Debt and such Secured Debt would not be
permitted by the covenant described above under "--Limitation on Liens," we or
the successor person (if other than us) shall, immediately prior to such
consolidation, merger, sale, lease, assignment, transfer or other conveyance,
enter into a supplemental indenture whereby the debt securities, shall be
secured equally and ratably with (or, at the option of Winn-Dixie, prior to)
such Secured Debt (but only for so long as such Secured Debt is so secured).
(ss.1006)
Definitions.
"Attributable Debt" in respect of a Sale and Leaseback Transaction
means, as of the time of determination, the present value (discounted at the
rate per annum equal to the rate of interest implicit in the lease involved in
such Sale and Leaseback Transaction, as determined in good faith by the Board of
Directors and set forth in a Board Resolution) of the obligation of the lessee
thereunder for rental payments (excluding, however, any amounts required to be
paid by such lessee, whether or not designated as rent or additional rent, on
account of maintenance and repairs, insurance, taxes, assessments, water rates
or similar charges or any amounts required to be paid by such lessee thereunder
contingent upon the amount of sales or similar contingent amounts) during the
remaining term of such lease (including any period for which such lease has been
extended or may, at the option of the lessor, be extended). In the case of any
lease which is terminable by the lessee upon the payment of a penalty, such
rental payments shall also include the amount of such penalty, but no rental
payments shall be considered as required to be paid under such lease subsequent
to the first date upon which it may be so terminated.
"Board of Directors" means our board of directors or any committee of
that board duly authorized to act generally or in any particular respect for us
under the indenture.
"Consolidated Net Tangible Assets" means, with respect to us and as of
any date of determination, our total assets and of our consolidated Subsidiaries
determined in accordance with GAAP as they appear on our then most recently
prepared consolidated balance sheet as of the end of a fiscal quarter, less (1)
all liabilities shown on such consolidated balance sheet that are classified and
accounted for as current liabilities or that otherwise would be considered
current liabilities under GAAP and (2) all assets shown on such consolidated
balance sheet that are classified and accounted for as intangible assets or that
otherwise would be considered intangible assets under GAAP, including, without
limitation, franchises, patents and patent applications, trademarks, brand names
and goodwill.
"Debt" means indebtedness of Winn-Dixie or any of its Subsidiaries for
borrowed money or evidenced by bonds, notes, debentures or other similar
instruments issued by Winn-Dixie or by any of its Subsidiaries.
"Funded Debt" means, as of any date of determination, any Debt of
Winn-Dixie or any of its Subsidiaries which, under GAAP, would appear as
indebtedness on a consolidated balance sheet of Winn-Dixie as of such date
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and which matures by its terms (or by its terms is extendible or renewable at
the option of Winn-Dixie or such Subsidiary, as the case may be, for a period
ending) more than 12 months from such date.
"GAAP" means generally accepted accounting principles in the United
States as in effect on the date of application thereof.
"Lien" means any mortgage, pledge, lien, charge, security interest,
conditional sale or other title retention agreement or other encumbrance of any
nature whatsoever.
"Person" or "person" means any individual, corporation, business trust,
partnership, joint venture, joint-stock company, limited liability company,
association, company, trust, unincorporated organization or government or any
agency or political subdivision thereof.
"Principal Property" means any store, supermarket, shopping center,
service center or manufacturing, processing, distribution, research, research
and development, warehousing or administration facility (in each case including,
without limitation, land, leasehold interests, improvements, and fixtures) and
any equipment (other than trucks and truck trailers) owned by us or any
Subsidiary (including any of the foregoing acquired after the date of the
indenture) and located within the United States of America, other than any of
the foregoing which our Board of Directors by Board Resolution and in good faith
declares, together with all other stores, supermarkets, shopping centers,
service centers and manufacturing, processing, distribution, research, research
and development, warehousing and administration facilities (in each case
including, without limitation, land, leasehold interests, improvements and
fixtures) and equipment (other than trucks and truck trailers) previously so
determined, are not of material importance to the business conducted by us and
our Subsidiaries taken as an entirety.
"Restricted Subsidiary" means any Subsidiary of Winn-Dixie which (1)
owns or leases a Principal Property (or portion thereof) and (2) (A)
substantially all of the property of which is located, or substantially all of
the business of which is carried on, within the United States of America or (B)
which is incorporated or organized under the laws of the United States of
America, any state thereof or the District of Columbia.
"Sale and Leaseback Transaction" means any direct or indirect
arrangement, in one transaction or a series of related transactions, with any
person providing for the leasing to us or a Subsidiary of any Principal Property
(or portion thereof), whether owned at the date of the indenture or thereafter
acquired, which has been or is to be sold or transferred by us or such
Subsidiary to such person (or to any other person designated by such person)
with the intention of taking back a lease of such Principal Property (or portion
thereof).
"Significant Subsidiary" means, with respect to any person, any
Subsidiary of such person which is a "significant subsidiary" as defined in Rule
1-02 of Regulation S-X promulgated by the SEC (as such Rule is in effect on the
date of the indenture).
"Subsidiary" means (1) any corporation at least a majority of the total
voting power of whose outstanding Voting Stock is owned, directly or indirectly,
at the date of determination by us and/or one or more other Subsidiaries, and
(2) any other person in which we and/or one or more other Subsidiaries, directly
or indirectly, at the date of determination, (x) own at least a majority of the
outstanding ownership interests or (y) have the power to elect or direct the
election of at least a majority of the directors, trustees or members of any
other governing body of such person.
"Voting Stock" means, with respect to any corporation, securities of
any class or series of such corporation, the holders of which are ordinarily, in
the absence of contingencies, entitled to vote for the election of directors of
the corporation.
Events of Default
The term "event of default" means any one of the following events with
respect to any series of debt securities:
(1) default for 30 days in payment of any interest on, or any
additional amounts payable in respect of any interest on, any debt security
of that series;
(2) default in payment of any principal of or premium, if any, on, or
any additional amounts payable in respect of any principal of or premium,
if any, on any debt security of that series when due, whether at maturity,
upon redemption, upon repayment at the option of the holder or otherwise;
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(3) default in the deposit of any sinking fund payment or payment
under any analogous provision when due with respect to any debt security of
that series;
(4) default by us in the performance, or breach, of any other covenant
or warranty in the indenture, other than a covenant or warranty included in
the indenture solely for the benefit of a series of securities other than
that series, or in any debt security of that series which shall not have
been remedied for a period of 60 days after notice to us by the trustee or
the holders of not less than 25% in aggregate principal amount of the debt
securities of that series then outstanding;
(5) acceleration of the maturity of any indebtedness for borrowed
money of Winn-Dixie or any Significant Subsidiary of Winn-Dixie in an
aggregate principal amount in excess of $25,000,000, including an
acceleration under the indenture with respect to debt securities of any
other series, as a result of a default under the indenture, which
acceleration is not rescinded and annulled or which indebtedness is not
discharged within 10 days thereafter;
(6) default in payment, after the expiration of any applicable grace
period, of any indebtedness for borrowed money of Winn-Dixie or any
Significant Subsidiary of Winn-Dixie in an aggregate principal amount in
excess of $25,000,000, including such a default under the indenture with
respect to debt securities of any other series, which default is not cured
or which indebtedness is not discharged within 10 days thereafter;
(7) specified events of bankruptcy, insolvency or reorganization with
respect to us or any Significant Subsidiary; or
(8) any other event of default established for the debt securities of
that series. (ss.501)
No event of default with respect to any particular series of debt
securities necessarily constitutes an event of default with respect to any other
series of debt securities. The indenture provides that the trustee may withhold
notice to the holders of the debt securities of any series of the occurrence of
a default with respect to the debt securities of that series, except a default
in payment of principal, premium, if any, interest, if any, or additional
amounts or sinking fund payments, if any, if the trustee considers it in the
best interest of the holders to do so. (ss.602)
The indenture provides that if an event of default with respect to any
series of debt securities occurs and is continuing (other than an event of
default specified in clause (7) above), either the trustee or the holders of at
least 25% in principal amount of the debt securities of that series then
outstanding may declare the principal of, or if debt securities of that series
are original issue discount securities, a lesser amount as may be specified in
the terms of that series of debt securities, and accrued and unpaid interest, if
any, on all the debt securities of that series to be due and payable
immediately. If an event of default specified in clause (7) above occurs, all
unpaid principal of and accrued interest on the debt securities of that series
(or if debt securities of that series are original issue discount securities, a
lesser amount as may be specified in the terms of that series of debt
securities) shall ipso facto become and be immediately due and payable without
any declaration or other act on the part of the trustee or any holder of any
debt security of that series. However, upon specified conditions, the holders of
a majority in principal amount of the debt securities of that series then
outstanding may rescind and annul a declaration of acceleration and its
consequences. (ss.502)
Subject to the provisions of the Trust Indenture Act of 1939 requiring
the trustee, during the continuance of an event of default under the indenture,
to act with the requisite standard of care, the trustee is under no obligation
to exercise any of its rights or powers under the indenture at the request or
direction of any of the holders of debt securities of any series unless those
holders have offered the trustee reasonable indemnity. Subject to the foregoing,
holders of a majority in principal amount of the outstanding debt securities of
any series issued under the indenture have the right to direct the time, method
and place of conducting any proceeding for any remedy available to the trustee
under the indenture with respect to that series. The indenture requires the
annual filing by us with the trustee of a certificate which states whether or
not we are in default under the terms of the indenture. (ss.ss.601, 704)
Notwithstanding any other provision of the indenture, the holder of a
debt security will have the right, which is absolute and unconditional, to
receive payment of the principal of and premium, if any, and interest, if any,
on that debt security on the respective due dates for those payments and to
institute suit for enforcement of those payments, and this right shall not be
impaired without the consent of the holder. (ss.508)
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Modification, Waivers and Meetings
The indenture permits us and the trustee, with the consent of the
holders of a majority in principal amount of the outstanding debt securities of
each series issued under the indenture and affected by a modification or
amendment, to modify or amend any of the provisions of the indenture or of the
debt securities of the applicable series or the rights of the holders of the
debt securities of that series under the indenture. However, no modification or
amendment shall, among other things,
o change the stated maturity of the principal of, or premium, if any, or
any installment of interest, if any, on or any additional amounts, if
any, with respect to any debt securities issued under the indenture,
or
o reduce the principal of or any premium on any debt securities or
reduce the rate of interest on any debt security, or any additional
amounts with respect to any debt securities, or change our obligation
to pay additional amounts, or
o reduce the amount of principal of any original issue discount
securities that would be due and payable upon an acceleration of the
maturity of any debt security, or
o adversely affect any right of repayment or repurchase at the option of
any holder, or
o change any place where or the currency in which debt securities are
payable, or
o impair the holder's right to institute suit to enforce the payment of
any debt securities on or after their stated maturity, or
o make any change that adversely affects the right, if any, to convert
or exchange debt securities for other debt securities, or
o reduce the percentage of debt securities of any series issued under
the indenture whose holders must consent to any modification or
amendment or any waiver of compliance with specific provisions of the
indenture or specified defaults under the indenture and their
consequences, or
o reduce the requirements for a quorum or voting at a meeting of holders
of the applicable debt securities,
without in each case obtaining the consent of the holder of each outstanding
debt security issued under the indenture affected by the modification or
amendment. (ss.902)
The indenture also contains provisions permitting us and the trustee,
without the consent of the holders of any debt securities issued under the
indenture, to modify or amend the indenture, among other things:
o to add to the events of default or our covenants in a manner that
benefits the holders of all or any series of debt securities issued
under the indenture;
o to add to or change any provisions of the indenture to facilitate the
issuance of bearer securities;
o to establish the form or terms of debt securities of any series and
any related coupons;
o to cure any ambiguity or correct or supplement any provision in the
indenture which may be defective or inconsistent with other provisions
in the indenture, or to make any other provisions with respect to
matters or questions arising under the indenture which shall not
adversely affect the interests of the holders of any series of debt
securities issued under the indenture; or
o to amend or supplement any provision contained in the indenture,
provided that the amendment or supplement does not apply to any
outstanding debt securities issued before the date of the amendment or
supplement and entitled to the benefits of that provision. (ss.901)
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The holders of a majority in aggregate principal amount of the
outstanding debt securities of any series may waive compliance by us with some
of the restrictive provisions of the indenture, including the covenants
described above under "--Certain Covenants--Limitation on Liens" and
"--Limitation on Sale and Leaseback Transactions," and other restrictive
covenants, if any, which are applicable to a particular series of debt
securities. The holders of a majority in aggregate principal amount of the
outstanding debt securities of any series may, on behalf of all holders of debt
securities of that series, waive any past default under the indenture with
respect to debt securities of that series and its consequences, except a default
in the payment of the principal of, or premium, if any, or interest, if any, on
debt securities of that series or in respect of a covenant or provision which
cannot be modified or amended without the consent of the holder of each
outstanding debt security of the affected series. (ss.1010)
The indenture contains provisions for convening meetings of the holders
of a series of debt securities. A meeting may be called at any time by the
trustee, and also, upon request, by Winn-Dixie or the holders of at least 10% in
principal amount of the outstanding debt securities of a series. Notice of a
meeting must be given in accordance with the provisions of the indenture. Except
for any consent which must be given by the holder of each outstanding debt
security affected in the manner described above, any resolution presented at a
meeting or adjourned meeting duly reconvened at which a quorum, as described
below, is present may be adopted by the affirmative vote of the holders of a
majority in principal amount of the outstanding debt securities of that series.
However, any resolution with respect to any request, demand, authorization,
direction, notice, consent, waiver or other action which may be made, given or
taken by the holders of a specified percentage, which is less than a majority,
in principal amount of the outstanding debt securities of a series may be
adopted at a meeting or adjourned meeting duly reconvened at which a quorum is
present by the affirmative vote of the holders of that specified percentage in
principal amount of the outstanding debt securities of that series. Any
resolution passed or decision taken at any meeting of holders of debt securities
of any series duly held in accordance with the indenture will be binding on all
holders of debt securities of that series and the related coupons, if any. The
quorum at any meeting called to adopt a resolution, and at any reconvened
meeting, will be persons holding or representing a majority in principal amount
of the outstanding debt securities of a series, subject to exceptions.
(ss.ss.1502, 1504)
Discharge, Defeasance and Covenant Defeasance
Upon our direction, the indenture shall cease to be of further effect
with respect to any series of debt securities issued under the indenture
specified by us, subject to the survival of specified provisions of the
indenture, including the obligation to pay additional amounts to the extent
described below, when:
o either (1) all outstanding debt securities of that series and, in the
case of bearer securities, all related coupons, have been delivered to
the trustee for cancellation, subject to exceptions, or (2) all debt
securities of that series and, if applicable, any related coupons have
become due and payable or will become due and payable at their stated
maturity within one year or are to be called for redemption within one
year and we have deposited with the trustee, in trust, funds in an
amount sufficient to pay the entire indebtedness on the debt
securities of that series in respect of principal, premium, if any,
and interest, if any (and, to the extent that (x) the debt securities
of that series provide for the payment of additional amounts upon the
occurrence of specified events of taxation, assessment or governmental
charge with respect to payments on the debt securities and (y) the
amount of any additional amounts is at the time of deposit reasonably
determinable by Winn-Dixie, in the exercise of its sole discretion,
those additional amounts) to the date of this deposit, if these debt
securities have become due and payable, or to the maturity of these
debt securities, as the case may be;
o we have paid all other sums payable under the indenture with respect
to the debt securities of that series; and
o the trustee has received an officers' certificate and an opinion of
counsel called for by the indenture. (ss.401)
If the debt securities of any series provide for the payment of
additional amounts, we will remain obligated, following the deposit described
above, to pay additional amounts on those debt securities to the extent that
they exceed the amount deposited in respect of these additional amounts as
described above. (ss.401)
We may elect with respect to any series of debt securities either
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o to defease and be discharged from any and all obligations with respect
to that series of debt securities ("defeasance"), except for, among
other things:
(1) the obligation to pay additional amounts, if any, upon the
occurrence of specified events of taxation, assessment or
governmental charge with respect to payments on that series of
debt securities to the extent that these amounts exceed the
amount deposited in respect of these additional amounts as
provided below,
(2) the obligations to register the transfer or exchange of those
debt securities,
(3) the obligation to replace temporary or mutilated, destroyed, lost
or stolen debt securities,
(4) the obligation to maintain an office or agency in respect of that
series of debt securities,
(5) the obligation to hold moneys for payment in trust, and
(6) the obligation, if applicable, to exchange or convert debt
securities of that series into other debt securities in
accordance with their terms, or
o to be released from its obligations with respect to the debt
securities described above under "-- Certain Covenants--Limitation on
Liens" and "--Limitation on Sale and Leaseback Transactions" and other
specified restrictive covenants in the indenture and any other
restrictive covenants, as may be applicable with respect to a
particular series of debt securities, and any omission to comply with
those obligations shall not constitute a default or an event of
default with respect to that series of debt securities ("covenant
defeasance"),
in either case upon the irrevocable deposit with the trustee, or other
qualifying trustee, in trust for that purpose, of an amount in U.S. dollars or
in the foreign currency in which those debt securities are payable at stated
maturity or, if applicable, upon redemption, and/or government obligations which
through the payment of principal and interest in accordance with their terms
will provide money, in an amount sufficient to pay the principal of and any
premium and any interest on (and, to the extent that (x) the debt securities of
that series provide for the payment of additional amounts and (y) the amount of
the additional amounts is at the time of deposit reasonably determinable by us,
in the exercise of its sole discretion, the additional amounts with respect to)
that series of debt securities, and any mandatory sinking fund or analogous
payments on that series of debt securities, on the due dates for these payments,
whether at maturity, upon redemption, upon repayment at the option of the holder
or otherwise. (ss.402(2), (3) & (4))
The defeasance or covenant defeasance described above shall only be effective
if, among other things:
o it shall not result in a breach or violation of, or constitute a
default under, the indenture or any other material agreement or
instrument to which we are a party or are bound;
o in the case of defeasance, we will have delivered to the trustee an
opinion of independent counsel reasonably acceptable to the trustee
confirming that, since the date of the indenture
(1) we have received from or there has been published by the Internal
Revenue Service a ruling or
(2) there has been a change in applicable federal income tax law;
o in either case to the effect that, and based on this ruling or change
the opinion of counsel shall confirm that, the holders of the debt
securities of the applicable series will not recognize income, gain or
loss for federal income tax purposes as a result of the defeasance and
will be subject to federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if the
defeasance had not occurred;
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o in the case of covenant defeasance, we will have delivered to the
trustee an opinion of independent counsel reasonably acceptable to the
trustee to the effect that the holders of the debt securities of that
series will not recognize income, gain or loss for federal income tax
purposes as a result of the covenant defeasance and will be subject to
federal income tax on the same amounts, in the same manner and at the
same times as would have been the case if the covenant defeasance had
not occurred;
o if the cash and government obligations deposited are sufficient to pay
the outstanding debt securities of that series provided those debt
securities are redeemed on a particular redemption date, we will have
given the trustee irrevocable instructions to redeem those debt
securities on that date; and
o no event of default or event which with notice or lapse of time or
both would become an event of default with respect to debt securities
of that series shall have occurred and be continuing on the date of
the deposit into trust and, solely in the case of defeasance, no event
of default arising from specified events of bankruptcy, insolvency or
reorganization with respect to us or any Significant Subsidiary or
event which with notice or lapse of time or both would become an event
of default shall have occurred and be continuing during the period
ending on the 91st day after the date of the deposit into trust.
(ss.402(4))
Unless the terms of an applicable series otherwise provides, if after
we have deposited funds and/or government obligations to effect defeasance or
covenant defeasance with respect to debt securities of any series,
(1) the holder of a debt security of that series is entitled to,
and does, elect under the indenture or the terms of that debt security
to receive payment in a currency other than the currency in which the
deposit has been made, or
(2) a Conversion Event, as defined below, occurs in respect of
the foreign currency in which the deposit has been made, the
indebtedness represented by that debt security shall be deemed to have
been, and will be, fully discharged and satisfied through the payment
of the principal of and premium, if any, and interest, if any, on that
debt security as it becomes due out of the proceeds yielded by
converting the amount deposited in respect of that debt security into
the currency in which that debt security becomes payable as a result
of the election or Conversion Event based on (x) in the case of
payments made under clause (A) above, the applicable market exchange
rate for the foreign currency in effect on the second business day
before the payment date, or (y) with respect to a Conversion Event,
the applicable market exchange rate for the foreign currency in
effect, as nearly as feasible, at the time of the Conversion Event.
(ss.402(5))
"Conversion Event" means the cessation of use of:
o a foreign currency both by the government of the country or the
confederation which issued that foreign currency and for the
settlement of transactions by a central bank or other public
institutions of or within the international banking community,
o the ECU both within the European Monetary System and for the
settlement of transactions by public institutions of or within
the European Union, or
o any currency unit or composite currency other than the ECU for
the purposes for which it was established.
In the event we effect covenant defeasance with respect to debt
securities of any series and those debt securities are declared due and payable
because of the occurrence of any event of default other than an event of default
with respect to the covenants described above under "--Certain
Covenants--Limitation on Liens" and "--Limitation on Sale and Leaseback
Transactions," which covenants would no longer be applicable to the debt
securities of that series after covenant defeasance, or with respect to any
other covenant as to which there has been covenant defeasance, the amount of
monies and/or government obligations deposited with the trustee to effect
covenant defeasance may not be sufficient to pay amounts due on the debt
securities of that series at the time of any
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acceleration resulting from that event of default. However, we would remain
liable to make payment of those amounts due at the time of acceleration.
(ss.402)
Governing Law
The indenture and the debt securities will be governed by the laws of the
State of New York. (ss.113)
Payment and Transfer
We will pay the principal, interest and premium, if any, on registered
debt securities in the specified currency at the corporate trust office of the
trustee or any other office we maintain for such purpose. Unless otherwise
specified in the applicable prospectus supplement, payment of any interest on
fully registered debt securities will be made by check mailed to the persons in
whose names the debt securities are registered on the record date as set forth
in either indenture or the applicable prospectus supplement. We will pay
principal, interest and premium, if any, on debt securities in other forms in
such manner and at such places as set forth in the applicable prospectus
supplement. (ss.305)
We will not charge a fee for any transfer or exchange of fully
registered debt securities, but we may require payment of an amount sufficient
to cover any tax or governmental charge related to such transfer or exchange.
Provisions related to the transfer or exchange of debt securities in other forms
will be set forth in the applicable prospectus supplement. (ss.305)
Regarding the Trustee
The trustee is permitted to engage in other transactions with us and
our subsidiaries from time to time, provided that if the trustee acquires any
conflicting interest it must eliminate such conflict upon the occurrence of an
event of default, or else resign.
DESCRIPTION OF WARRANTS
We may issue warrants which evidence a right to purchase debt
securities in the future at a price fixed in advance. We may issue warrants
alone or together with any series of debt securities offered in any prospectus
supplement. The warrants, evidenced by warrant certificates, may be attached to
or separate from such debt securities. We will issue the warrants pursuant to a
warrant agreement to be entered into by us and a warrant agent. The form of the
warrant agreement will be filed as an exhibit to the registration statement of
which this prospectus is a part.
We will select the warrant agent at the time we issue the warrants. The
warrant agent will act solely as our agent in connection with the warrants and
will not assume any obligation or relationship of agency or trust for or with
any holders of warrants or beneficial owners of warrants.
The following summaries of certain provisions of the form of warrant
agreement and the warrant certificate are not complete. You should read all of
the provisions of the form of warrant agreement and the warrant certificate.
General
If we offer warrants, the prospectus supplement will describe the terms
of the warrants, including the following if applicable to the particular
offering:
o the offering price, if any;
o the title, total principal amount and terms of the debt
securities which may be purchased upon exercise of the warrants;
o if applicable, the title and terms of the debt securities with
which the warrants are issued and the
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<PAGE>
number of warrants issued with each such debt security;
o if applicable, the date on and after which the holder may
transfer the warrants and the debt securities separately;
o the principal amount of debt securities that the holder may
purchase upon exercise of one warrant and the price at which the
holder may purchase such principal amount of debt securities upon
exercise;
o the date on and after which the holder may exercise the warrants
and the date on which such right shall expire;
o federal income tax consequences applicable to the warrants and
the debt securities which may be purchased upon exercise of the
warrants;
o whether the warrant certificates will be issued in registered or
bearer form; and
o any other terms of the warrants.
Holders of warrants may exchange warrant certificates for new warrant
certificates of different denominations. Holders of warrants may present for
registration or transfer registered warrant certificates at the corporate trust
office of the warrant agent or any co-warrant agent, or at such other office
listed in the prospectus supplement. Holders of warrants do not have any of the
rights of holders of debt securities except to the extent that the consent of
holders of warrants may be required for certain modifications to the indenture
and the series of debt securities issuable upon exercise of the warrants.
Holders of warrants are not entitled to payments of principal, interest or
premium, if any, on such debt securities.
Exercise of the Warrants
Holders of warrants may exercise the warrants by doing the following:
o completing and executing the form of election to purchase on the
reverse side of the warrant certificate;
o surrendering the warrant certificate at the corporate trust
office of the warrant agent or any co-warrant agent; and
o submitting payment in full of the exercise price as set forth in
the prospectus supplement.
Upon exercise of the warrants, the warrant agent or any co-warrant
agent will, as soon as practicable, deliver the debt securities in authorized
denominations in accordance with the holder's instructions and at such holder's
cost and risk. If a holder of warrants exercises less than all of the warrants
evidenced by a warrant certificate, a new warrant certificate will be issued for
the remaining amount of warrants.
PLAN OF DISTRIBUTION
When we sell the debt securities and the warrants, we may do so in one
or more of the following ways:
o through underwriters or dealers;
o directly to one or more purchasers; or
o through agents.
When we offer to sell the debt securities and the warrants, a
prospectus supplement will accompany the offer and will describe the specific
terms of the offer, including:
o the name or names of any underwriters;
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<PAGE>
o the purchase price and the proceeds we will receive from such
sale;
o any underwriting discounts and other items constituting
underwriters' compensation;
o any initial price at which the securities are offered to the
public;
o any discounts or concessions allowed or reallowed or paid to
dealers; and
o any securities exchange on which we will list the securities.
Only underwriters named in the prospectus supplement will be deemed to
be underwriters in connection with the debt securities and the warrants offered
by such prospectus supplement.
If we use one or more underwriters in the sale of the debt securities
and the warrants, we shall enter into an underwriting agreement with such
underwriters, a form of which is filed as an exhibit to the registration
statement of which this prospectus is a part. The underwriters will acquire the
debt securities and the warrants for their own account. The underwriters may
then resell such debt securities and warrants to the public in one or more
transactions, including negotiated transactions, at a fixed price or at varying
prices determined at the time of sale. The obligations of the underwriters to
purchase the debt securities and the warrants will be subject to the fulfillment
of certain conditions which are set forth in the underwriting agreement. The
underwriters, however, will be obligated to purchase all the debt securities and
the warrants of the series offered by the prospectus supplement if any such debt
securities and warrants are purchased. Any initial price at which the securities
are offered to the public and any discounts or concessions allowed or reallowed
or paid to dealers may be changed from time to time.
If so indicated in the prospectus supplement, one or more firms may
purchase our securities in accordance with applicable redemption or repayment
provisions and subsequently offer and sell such securities in a remarketing
transaction. Such firms may be acting as principals for their own accounts or as
agents for us. We will identify any such firm and describe its compensation and
the terms of its agreement with us to remarket the securities, if any, in the
prospectus supplement. By virtue of their remarketing activities, such firms may
be subject to securities laws and regulations applicable to underwriters.
We may also sell the debt securities and the warrants directly or
through agents which we designate from time to time. We will identify any agent
involved in the offering and sale of the debt securities and warrants and will
list any commissions we paid to the agent in the accompanying prospectus
supplement. Unless we indicate otherwise in the prospectus supplement, any such
agent will be acting on a best efforts basis to solicit purchases for the period
of such agent's appointment.
We may authorize agents, underwriters or dealers to solicit offers from
certain institutional investors to purchase the debt securities and the warrants
and provide for payment and delivery on a future date specified in an
accompanying prospectus supplement. We will describe any such arrangement in the
prospectus supplement. Any such institutional investor may be subject to
limitations on the minimum amount of debt securities and warrants that it may
purchase or on the portion of the aggregate principal amount of such debt
securities and warrants that it may sell under such arrangements. Institutional
investors from which such offers may be solicited include:
o commercial and savings banks;
o insurance companies;
o pension funds;
o investment companies;
o educational and charitable institutions; and
o such other institutions as we may approve.
Such institutional investors' obligations under such delayed delivery
and payment arrangements will not be subject to any conditions except:
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o the institutional investor's purchase of the particular debt
securities and warrants shall not be prohibited at the time of
delivery under the laws of any jurisdiction in the United States
to which that institution is subject; and
o if the particular debt securities and warrants are being sold to
underwriters, we shall have sold to the underwriters the total
principal amount of the debt securities and warrants less the
principal amount of such debt securities and warrants covered by
such arrangements.
Underwriters will not have any responsibility in respect of the
validity of any delayed delivery and payment arrangements or the performance by
us or such institutional investors under such arrangements.
If any underwriter or any selling group member intends to engage in
stabilizing, syndicate short covering transactions, penalty bids or any other
transaction in connection with the offering of the debt securities and warrants
that may stabilize, maintain, or otherwise affect the price of such debt
securities and warrants, such intention and a description of such transactions
will be described in an accompanying prospectus supplement.
We may have agreements with the agents and underwriters entitling them
to indemnification by us against certain civil liabilities, including
liabilities under the Securities Act of 1933, or to contribution with respect to
payments that they may be required to make relating to such liabilities. Agents
and underwriters may engage in transactions with or perform services for us in
the ordinary course of business.
LEGAL OPINIONS
The legality of the debt securities and the warrants to purchase debt
securities will be passed upon for us by E. Ellis Zahra, Jr., Esq., Senior Vice
President and General Counsel of Winn-Dixie, and by LeBoeuf, Lamb, Greene &
MacRae, L.L.P., a limited liability partnership including professional
corporations, New York, New York. The legality of the debt securities and
warrants for purchase of debt securities will be passed upon for any underwriter
or agent by counsel identified in the applicable prospectus supplement.
EXPERTS
The consolidated financial statements and schedule of Winn-Dixie as of
June 28, 2000 and June 30, 1999, and for each of the three years in the period
ended June 28, 2000, have been incorporated by reference herein and in the
registration statement in reliance upon the reports of KPMG LLP, independent
certified public accountants, incorporated by reference herein and upon the
authority of said firm as experts in accounting and auditing. To the extent that
KPMG LLP audits and reports on consolidated financial statements of Winn-Dixie
issued at future dates, and consents to the use of their report thereon, such
consolidated financial statements also will be incorporated by reference in the
registration statement in reliance upon their reports and said authority.
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PART II. INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. Other Expenses of Issuance and Distribution
Filing Fee - Securities and Exchange Commission.................... $264,000
Accounting Fees and Expenses....................................... 5,000
Legal Fees and Expenses............................................ 50,000
Printing and Engraving............................................. 10,000*
Trustee's and Warrant Agent's Charges.............................. 13,000*
Rating Agency Fees................................................. 473,000
Blue Sky Fees and Expenses......................................... 2,500
Miscellaneous...................................................... 10,000
--------
Total............................................ $850,000
========
----------
* Estimated subject to future contingencies.
ITEM 15. Indemnification of Directors and Officers
Under the provisions of Section 607.0850, Florida Statutes, the
Registrant is empowered generally to indemnify any officer or director against
liability incurred in connection with any proceeding if such officer or director
acted in good faith and in a manner such officer or director reasonably believed
to be in, or not opposed to, the best interests of the Registrant and, with
respect to any criminal action or proceeding, had no reasonable cause to believe
his or her conduct was unlawful.
Article XIII of the Registrant's By-Laws provides for indemnification
of directors, officers, employees and agents of the Registrant to the fullest
extent permitted by law, subject to court determination or authorization in each
specific case by majority vote of a quorum of the Registrant's disinterested
directors or shareholders, or of a disinterested committee appointed by the
Registrant's directors, or by independent legal counsel, upon a determination
that the applicable standard of conduct prescribed by the Florida Statutes was
met. Such indemnification may also be ordered by a court of competent
jurisdiction upon application of the director, officer, employee or agent
seeking such indemnification.
Reference is made to the form of Underwriting Agreement included herein
as an exhibit to the Registration Statement for provisions regarding
indemnification of Winn-Dixie's officers, directors and controlling persons
against certain liabilities.
II-1
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ITEM 16. Exhibits
Exhibit No. Description of Instrument
1 Any Underwriting Agreement relating to debt securities and
warrants to purchase debt securities and any selling agency or
distribution agreement with any agent will be filed as an exhibit
to a Current Report on Form 8-K and incorporated herein by
reference.
*4.1 Form of Indenture for senior debt securities dated as of November
22, 2000 between Winn-Dixie and First Union National Bank as
Trustee. The form or forms of senior debt securities with respect
to each particular offering will be filed as an exhibit to a
Current Report on Form 8-K and incorporated herein by reference.
4.2 Form of Indenture for senior debt securities between Winn-Dixie
and one or more banking institutions to be qualified as Trustee
pursuant to Section 305(b)(2) of the Trust Indenture Act of 1939
is hereby incorporated by reference to Exhibit 4.1 (except for
name of Trustee). The form or forms of senior debt securities
with respect to each particular offering will be filed as an
exhibit to a Current Report on Form 8-K and incorporated herein
by reference.
4.3 Form of Warrant Agreement to be entered into between Winn-Dixie
and the Warrant Agent (including form of Warrant Certificate)
will be filed as an exhibit to a Current Report on Form 8-K and
incorporated herein by reference.
*5 Opinion of E. Ellis Zahra, Jr., Senior Vice President and General
Counsel of Winn-Dixie, regarding the legality of the Securities.
*12 Computation of Ratio of Earnings to Fixed Charges.
23 Consent of KPMG LLP (included on p. II-7 herein)
23(a)Consent of E. Ellis Zahra, Jr., Senior Vice President and
General Counsel of Winn-Dixie. (included in Exhibit 5)
23(b)Consent of LeBoeuf, Lamb, Greene & MacRae, L.L.P. (included on
p. II-6 herein)
24 Power of Attorney of certain officers and directors. (included as
part of the signature pages hereof)
*25 Statement of Eligibility of the Trustee on Form T-1.
-----------------
*Filed herewith.
ITEM 17. Undertakings.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933 (the "Act");
(ii)To reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
registration statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Commission
pursuant to 424(b) of the Act if, in the aggregate, the changes in volume
and price represent no more than a 20% change in the maximum aggregate
offering price set forth in the "Calculation of Registration Fee" table in
the effective registration statement; and
(iii) To include any material information with respect to the plan of
distribution not previously
II-2
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disclosed in the registration statement or any material change to such
information in the registration statement; provided, however, that
paragraphs (1)(i) and (1)(ii) do not apply if the registration statement is
on Form S-3, Form S-8 or Form F-3, and the information required to be
included in a post-effective amendment by those paragraphs is contained in
periodic reports filed with or furnished to the Commission by the
registrant pursuant to Section 13 or 15(d) of the Securities Exchange Act
of 1934 that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the Act, each
such post-effective amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
(4) That, for the purposes of determining any liability under the Act, each
filing of the registrant's annual report pursuant to Section 13(a) or 15(d) of
the Securities Exchange Act of 1934 that is incorporated by reference in this
registration statement shall be deemed to be a new registration statement
relating to the securities offered herein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(5) To file an application for the purpose of determining the eligibility
of the trustee to act under subsection (a) of Section 310 of the Trust Indenture
Act in accordance with the rules and regulations prescribed by the Commission
under Section 305(b)(2) of the Trust Indenture Act.
Insofar as indemnification for liabilities arising under the Act may be
permitted to directors, officers and controlling persons of the registrant
pursuant to the provisions described under Item 15 above, or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
II-3
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Winn-Dixie
Stores, Inc. certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Jacksonville, State of Florida, on the
twenty-second day of November, 2000.
Winn-Dixie Stores, Inc.
By:__/s/ ALLEN R. ROWLAND__________
--------------------
Title: Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature to this
Registration Statement appears below hereby constitutes and appoints E. Ellis
Zahra, Jr. and Richard P McCook, or any one or more of them, as such person's
true and lawful attorney-in-fact and agent with full power of substitution for
such person and in such person's name, place and stead, in any and all
capacities, to sign and to file with the Securities and Exchange Commission any
and all amendments and post-effective amendments to this Registration Statement,
with exhibits thereto, any registration statement filed pursuant to Rule 462(b)
promulgated under the Securities Act of 1933 and any and all other documents
filed in connection with such filings, granting unto each said attorney-in-fact
and agent full power and authority to do and perform each and every act and
thing requisite and necessary to be done in and about the premises, as fully to
all intents and purposes as such person might or could do in person, hereby
ratifying and confirming all that each said attorney-in-fact and agent, or any
substitute therefor, may lawfully do or cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed by the following persons in the capacities indicated
on November 22 , 2000.
Signature Title
/s/ A. DANO DAVIS
-----------------------------------------
(A. Dano Davis) Chairman and Director
/s/ ALLEN R. ROWLAND President and Director
------------------------------------------
(Allen R. Rowland) (Chief Executive Officer)
/s/ RICHARD P. McCOOK Senior Vice President
------------------------------------------
(Richard P. McCook) (Chief Financial Officer)
/s/ D. MICHAEL BYRUM Corporate Controller
------------------------------------------
(D. Michael Byrum) (Chief Accounting Officer)
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Signature Title
/s/ RONALD TOWNSEND
------------------------------------------
(Ronald Townsend) Director
/s/ T. WAYNE DAVIS
------------------------------------------
(T. Wayne Davis) Director
/s/ RADFORD D. LOVETT
------------------------------------------
(Radford D. Lovett) Director
/s/ CHARLES P. STEPHENS
------------------------------------------
(Charles P. Stephens) Director
/s/ ARMANDO M. CODINA
------------------------------------------
(Armando M. Codina) Director
/s/ CARLETON T. RIDER
------------------------------------------
(Carleton T. Rider) Director
/s/ JULIA B. NORTH
------------------------------------------
(Julia B. North) Director
II-5
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CONSENT OF INDEPENDENT AUDITORS
We consent to the use of our report incorporated herein by reference
and to the reference to our firm under the heading "Experts" in the prospectus.
KPMG LLP
Jacksonville, Florida
November 22 , 2000
CONSENT OF COUNSEL
We consent to the reference made to us under the heading "Legal
Opinions" in the prospectus relating to debt securities and warrants to purchase
debt securities filed with this registration statement on Form S-3 of Winn-Dixie
Stores, Inc.
LeBoeuf, Lamb, Greene & MacRae L.L.P.,
a limited liability partnership including
professional corporations
New York, New York
November 22, 2000
II-6
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INDEX TO EXHIBITS
Exhibit Number Description of Instrument
Exhibit No. Description of Instrument
1 Any Underwriting Agreement relating to debt securities and
warrants to purchase debt securities and any selling agency or
distribution agreement with any agent will be filed as an exhibit
to a Current Report on Form 8-K and incorporated herein by
reference.
*4.1 Form of Indenture for senior debt securities dated as of November
22, 2000 between Winn-Dixie and First Union National Bank as
Trustee. The form or forms of senior debt securities with respect
to each particular offering will be filed as an exhibit to a
Current Report on Form 8-K and incorporated herein by reference.
4.2 Form of Indenture for senior debt securities between Winn-Dixie
and one or more banking institutions to be qualified as Trustee
pursuant to Section 305(b)(2) of the Trust Indenture Act of 1939
is hereby incorporated by reference to Exhibit 4.1 (except for
name of Trustee). The form or forms of senior debt securities
with respect to each particular offering will be filed as an
exhibit to a Current Report on Form 8-K and incorporated herein
by reference.
4.3 Form of Warrant Agreement to be entered into between Winn-Dixie
and the Warrant Agent (including form of Warrant Certificate)
will be filed as an exhibit to a Current Report on Form 8-K and
incorporated herein by reference.
*5 Opinion of E. Ellis Zahra, Jr., Senior Vice President and General
Counsel of Winn-Dixie, regarding the legality of the Securities.
*12 Computation of Ratio of Earnings to Fixed Charges.
23 Consent of KPMG LLP (included on p. II-7 herein)
23(a)Consent of E. Ellis Zahra, Jr., Senior Vice President and
General Counsel of Winn-Dixie. (included in Exhibit 5)
23(b)Consent of LeBoeuf, Lamb, Greene & MacRae, L.L.P. (included on
p. II-6 herein)
24 Power of Attorney of certain officers and directors. (included as
part of the signature pages hereof)
*25 Statement of Eligibility of the Trustee on Form T-1.
*Filed herewith.
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