AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 24, 1995
REGISTRATION NO. 33-60161
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 2
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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BRUNO'S, INC.
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C>
ALABAMA 63-0411801
(State or other jurisdiction (I.R.S. Employer Identification No.)
of incorporation or organization)
</TABLE>
BRUNO'S, INC.
800 LAKESHORE PARKWAY
BIRMINGHAM, ALABAMA 35211
(205) 940-9400
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
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RONALD G. BRUNO
BRUNO'S, INC.
800 LAKESHORE PARKWAY
BIRMINGHAM, ALABAMA 35211
(205) 940-9400
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
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WITH COPIES TO:
Richard Cohn
Sirote & Permutt
2222 Arlington Avenue South
Birmingham, Alabama 35205
(205) 933-7111
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after this Registration Statement becomes effective.
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, 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. / /
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
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<PAGE>
SUBJECT TO COMPLETION, DATED JULY 24, 1995
PROSPECTUS
BRUNO'S, INC.
DEBT SECURITIES
COMMON STOCK
WARRANTS
Bruno's, Inc. (the "Company") intends to issue from time to time in one or
more series its (i) unsecured debt securities, which may either be senior (the
"Senior Debt Securities") or subordinated (the "Subordinated Debt Securities";
the Senior Debt Securities and the Subordinated Debt Securities being referred
to collectively as the "Debt Securities"), (ii) warrants to purchase the Debt
Securities (the "Debt Warrants"), (iii) shares of common stock, par value $.01
per share (the "Common Stock"), and (iv) warrants to purchase shares of Common
Stock ("Common Stock Warrants"; the Debt Warrants and Common Stock Warrants
being referred to herein collectively as the "Securities Warrants") having an
aggregate initial public offering price not to exceed $750,000,000 or the
equivalent thereof in one or more foreign currencies or composite currencies,
including ECU, on terms to be determined at the time of sale. The Debt
Securities, Common Stock and Securities Warrants offered hereby (collectively,
the "Offered Securities") may be offered, separately or as units with other
Offered Securities, in separate series in amounts, at prices and on terms to be
determined at the time of sale and to be set forth in a supplement to this
Prospectus (a "Prospectus Supplement").
The specific terms of the Offered Securities in respect of which this
Prospectus is being delivered, such as, where applicable (i) in the case of Debt
Securities, the specific designation, aggregate principal amount, currency,
denomination, maturity, priority, interest rate (which may be variable or
fixed), terms of subordination, if any, time of payment of interest, terms for
optional redemption or repayment or for sinking fund payments, terms for
required offers to repurchase Debt Securities, terms for conversion into or
exchange for other Offered Securities, the designation of the Trustee acting
under the applicable Indenture, covenants and the initial public offering price;
(ii) in the case of Common Stock, the number of shares and the terms of the
offering and sale thereof; (iii) in the case of Securities Warrants, the
duration, offering price, exercise price and detachability thereof; and (iv) in
the case of all Offered Securities, whether such Offered Security will be
offered separately or as a unit with other Offered Securities, will be set forth
in the accompanying Prospectus Supplement. The Prospectus Supplement will also
contain information, where applicable, about certain United States federal
income tax considerations relating to any listing on a securities exchange and
any other special terms of the Offered Securities covered by the Prospectus
Supplement.
The Offered Securities may be sold directly to purchasers or through
underwriters, dealers or agents. If any underwriters, dealers or agents are
involved in the sale of any Offered Securities, their names and any applicable
fee, commission or discount arrangements will be set forth in the Prospectus
Supplement. The principal amount or number of shares of Offered Securities, the
purchase price thereof and the net proceeds to the Company from sales of Offered
Securities will be set forth in the Prospectus Supplement. The net proceeds to
the Company of the sale of Offered Securities will be the purchase price of such
Offered Securities less attributable issuance expenses, including underwriters',
dealers' or agents' compensation arrangements. See "Plan of Distribution" for
indemnification arrangements for underwriters, dealers and agents.
This Prospectus may not be used to consummate sales of Offered Securities
unless accompanied by a Prospectus Supplement.
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS
PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
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The date of this Prospectus is , 1995.
<PAGE>
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
<PAGE>
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith, files reports, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information filed by the Company with the Commission can be
inspected and copied at the public reference facilities maintained by the
Commission at Room 1024, 450 Fifth Street, N.W., Judiciary Plaza, Washington,
D.C. 20549 or at its regional offices located at 7 World Trade Center, Suite
1300, New York, New York 10048 and 500 West Madison Street, Suite 1400, Chicago,
Illinois 60661. Copies of such material can be obtained by mail from the Public
Reference Section of the Commission at 450 Fifth Street, N.W., Washington, D.C.
20549, at prescribed rates.
The Company has filed with the Commission a Registration Statement on Form
S-3 (the "Registration Statement") under the Securities Act of 1933, as amended
(the "Securities Act"), with respect to the Offered Securities. This Prospectus
does not contain all of the information set forth in the Registration Statement
and the exhibits and schedules thereto. For further information with respect to
the Company and the Offered Securities, reference is hereby made to the
Registration Statement and the exhibits and schedules filed therewith, which may
be obtained from the principal office of the Commission in Washington, D.C.,
upon the payment of fees prescribed by the Commission.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The following documents filed by the Company with the Commission are
incorporated herein by reference: (i) Annual Report on Form 10-K for the fiscal
year ended July 2, 1994; (ii) Quarterly Reports on Form 10-Q for the fiscal
quarters ended September 24, 1994, December 31, 1994 and April 8, 1995; (iii)
Current Report on Form 8-K dated April 27, 1995, as amended by the Current
Report on Form 8-K/A dated May 30, 1995; (iv) Current Report on Form 8-K dated
May 18,
1995; (v) Current Report on Form 8-K dated June 12, 1995, as amended by the
Current Report on
Form 8-K/A dated July 17, 1995 and; (vi) Current Report on Form 8-K dated June
22, 1995.
All reports and other documents filed by the Company pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this Prospectus
and before the termination of the offering made hereby will be deemed to be
incorporated by reference herein and to be part hereof from the date of filing
of such reports and documents. Any statement contained in a document
incorporated or deemed to be incorporated by reference herein will be deemed to
be modified or superseded for purposes of this Prospectus to the extent that a
statement contained herein or in any other subsequently filed document, which
also is or is deemed to be incorporated by reference herein, modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this
Prospectus.
The Company will provide, without charge to each person, including any
beneficial owner, to whom a Prospectus is delivered, upon written or oral
request of such person, a copy of any or all of the documents incorporated
herein by reference (other than exhibits, unless such exhibits specifically are
incorporated by reference into such documents or this Prospectus). Requests for
such documents should be submitted in writing, addressed to the Assistant
Secretary, Bruno's, Inc., 800 Lakeshore Parkway, Birmingham, Alabama 35211.
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THE COMPANY
GENERAL
The information set forth below is as of July 1, 1995 unless otherwise
indicated. The Company is a leading supermarket operator in the Southeastern
United States and is the largest supermarket operator in the state of Alabama.
The Company operates 252 supermarkets of which 124 are located in Alabama, 86 in
Georgia, 19 in Florida, 11 in Tennessee, 7 in Mississippi and 5 in South
Carolina. Seventy-nine of the store sites are owned directly by the Company or
through joint ventures. The Company also operates two primary distribution
facilities, one in Birmingham, Alabama and one in Vidalia, Georgia, which total
2.1 million square feet. The Company operates stores under three principal
formats, each addressed to a different market segment: every day low price
("EDLP") stores aimed at the value conscious shopper, upscale stores targeted to
customers seeking service and selection, and neighborhood stores stressing
convenience in a community setting. Under the EDLP and upscale formats, the
Company also operates 16 Supercenter stores that offer an expanded mix of higher
margin perishables and general merchandise products as well as various one-stop
shopping conveniences, such as in-store pharmacies, banks, photo development
services and optical centers. Through its 60 years of operations, the Company
has developed a valuable and strategically located store base, strong name
recognition, customer loyalty and a reputation as a quality and service leader
among supermarket competitors. The Company believes that these factors have
enabled it to establish a leading market share in most of its principal markets,
including market shares of approximately 50% in Birmingham and 30% throughout
Alabama, its leading market.
STORE FORMATS
EVERY DAY LOW PRICE ("EDLP") FORMATS. The Company's two EDLP formats, Food
World and FoodMax, on a combined basis account for 125 of the Company's 252
stores and, for the 40 weeks ended April 8, 1995, contributed sales of $1.3
billion, or 57% of total sales. Both Food World (82 stores) and FoodMax (43
stores) are widely regarded as low price leaders, and both formats are
recognized for the breadth and high quality of their product offerings. Eight of
the EDLP stores are Supercenters. EDLP stores generated average weekly sales of
$248,000 for the 40 weeks ended April 8, 1995.
Food World. Food World stores are typically high volume stores designed
to appeal to a broad spectrum of customers. With a primary emphasis on
value, these stores offer every day low pricing along with an extensive
variety of name-brand merchandise and specialty departments. Food World
stores are promoted through television, newspaper, and radio advertising.
The Company's Food World stores average approximately 44,000 total square
feet. Since June 30, 1990, the number of Food World stores has increased
from 74 to 82 stores.
FoodMax. FoodMax stores are large stores with an open design,
warehouse-style ceilings, and expanded perishables departments. These stores
emphasize low prices and an extensive product selection while achieving low
overhead through reduced staffing. These stores enhance their EDLP image
through unadvertised in-store specials. The Company's FoodMax stores average
approximately 51,000 total square feet. Since June 30, 1990, the number of
FoodMax stores has increased from 28 to 43 stores.
UPSCALE FORMATS. The Company's upscale formats, which operate primarily
under the Bruno's name, account for 39 of the Company's 252 stores and, for the
40 weeks ended April 8, 1995, contributed sales of $456 million, or 21% of total
sales. Bruno's stores are widely regarded as quality, service, and perishables
leaders in the markets the Company serves, and generally have a substantial
breadth and depth of product offerings. These stores typically contain expanded
produce, bakery, delicatessen, and gourmet foods not generally found in
conventional supermarkets, a variety of health and beauty care products normally
found in large drug stores, and a wide range of general merchandise items.
Bruno's stores are generally located in suburban markets. Eight of the upscale
stores are
3
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Supercenters. The upscale stores average approximately 51,000 total square feet.
Since June 30, 1990, the number of upscale stores has increased from 18 to 39
stores. Upscale stores generated average weekly sales of $305,000 for the 40
weeks ended April 8, 1995.
NEIGHBORHOOD FORMATS. The Company has two principal neighborhood formats,
Piggly Wiggly and Food Fair. The neighborhood format, on a combined basis,
accounts for 88 of the Company's 252 stores, and, for the 40 weeks ended April
8, 1995, contributed sales of $477 million, or 22% of total sales. Piggly Wiggly
(54 stores) and Food Fair (31 stores) are generally smaller than the Company's
other supermarkets and emphasize friendly service and promotional pricing. For
its neighborhood stores, which are generally located in small to medium-sized
towns and suburban neighborhoods, the Company advertises primarily through
direct mail. Neighborhood stores generated average weekly sales of $131,000 for
the 40 weeks ended April 8, 1995.
Piggly Wiggly. Piggly Wiggly stores are located in medium to small towns
in central and southern Georgia. Piggly Wiggly stores are promoted primarily
through weekly advertised specials. Piggly Wiggly stores average
approximately 30,000 total square feet. Since June 30, 1990, the number of
Piggly Wiggly stores has decreased from 76 to 54 stores.
Food Fair. Food Fair stores, like Piggly Wiggly, are designed to operate
with lower overhead and competitive pricing in suburban neighborhoods and
towns in Alabama that will not support the volume necessary for a larger
supermarket. Food Fair stores average approximately 29,000 total square
feet. Since June 30, 1990, the number of Food Fair stores has increased from
28 to 31 stores.
The Company has approximately 25,600 employees in its stores, warehousing,
and business offices.
The principal executive offices of the Company are located at 800 Lakeshore
Parkway, Birmingham, Alabama 35211, and its telephone number is (205) 940-9400.
THE MERGER
The statements made under this heading relating to the Merger (as defined
below) are summaries of the agreements described therein, do not purport to be
complete and are qualified in their entirety by reference to such agreements,
which are incorporated herein by reference. See "Available Information."
Merger Agreement. The Company and Crimson Acquisition Corp. ("Crimson"), an
Alabama corporation and as of the date hereof, a wholly owned subsidiary of
Crimson Associates, L.P. ("Crimson Associates"), which is a partnership
organized by Kohlberg Kravis Roberts & Co. ("KKR"), entered into an Agreement
and Plan of Merger, dated as of April 20, 1995, and amended as of May 18, 1995
(as amended, the "Merger Agreement"), pursuant to which Crimson will be merged
with and into the Company ("the Merger"), with the Company continuing as the
surviving corporation. Upon consummation of the Merger, each share of the
Company's Common Stock outstanding immediately prior to the time the Merger
becomes effective (the "Effective Time of the Merger") will be converted at the
election of the holder thereof into either (i) the right to receive $12.00 in
cash from the Company following the Merger or (ii) the right to retain that
share of Common Stock. The Merger contemplates that approximately 94.7% of the
presently issued and outstanding shares of the Company's Common Stock will be
converted into cash, and that approximately 5.3% of the presently issued and
outstanding shares will be retained by shareholders. Because the Company's
existing shareholders will retain 4,173,682 shares of Common Stock, the right to
receive $12.00 in cash or to retain Common Stock will be subject to proration.
Such number of retained shares will represent approximately 16.67% of the Common
Stock expected to be outstanding after the Merger.
4
<PAGE>
As a result of the Merger, Crimson Associates will hold 20,833,333 shares,
or approximately 83.33%, of the Common Stock expected to be outstanding after
the Merger, and 10,000,000 warrants (the "Warrants") to purchase up to an
additional 10,000,000 shares of Common Stock in the aggregate at an exercise
price of $12.00 per share, subject to certain anti-dilution adjustments. Each
Warrant will be exercisable in whole or in part during the ten year period
following the Effective Time of the Merger and, upon exercise, may be exchanged,
at the option of the holder, for either (i) such number of shares of Common
Stock for which the Warrant is then exercisable upon payment by the holder to
the Company of the aggregate exercise price or (ii) that number of shares of
Common Stock having a value equal to the difference between the "fair market
value" at the time of exercise of such number of shares of Common Stock for
which the Warrant is then exercisable and the exercise price. If the Warrants
were exercised in full by the payment of the aggregate cash exercise price
immediately after the Merger, Crimson Associates would hold approximately 88% of
the outstanding shares of Common Stock.
The Company will submit the Merger Agreement to its shareholders for
approval at a special meeting, which is expected to be held on August 18, 1995
(the "Special Meeting"). In addition, the Company will submit to the
shareholders for their consent (i) a proposal to increase the Company's "bonded
indebtedness" under Alabama law to finance the conversion into cash of
approximately 94.7% of the issued and outstanding shares of Common Stock upon
the consummation of the Merger, to refinance certain outstanding indebtedness of
the Company and to provide for working capital requirements and (ii) a proposal
to amend and restate the Company's Articles of Incorporation to, among other
things, reduce the authorized shares of Common Stock from 200,000,000 to
60,000,000. The affirmative vote of the holders of two-thirds of the shares of
Common Stock entitled to vote thereon is required for approval and adoption of
the Merger Agreement and the transactions contemplated thereby. The affirmative
vote of the holders of a majority of the shares of Common Stock entitled to vote
thereon is required for approval and adoption of each of the increase in bonded
indebtedness and the Amended and Restated Articles of Incorporation. Approval of
the increase in bonded indebtedness and the Amended and Restated Articles of
Incorporation will be sought at the Special Meeting only if the shareholders
approve the Merger. Pursuant to a Stockholders Agreement, dated as of April 20,
1995 (the "Stockholders Agreement"), among Crimson and the shareholders parties
thereto (the "Shareholders"), holders of approximately 24% of Common Stock have
agreed, among other things and subject to certain conditions, to vote in favor
of the Merger Agreement.
In addition to the obtaining of shareholder approval, the respective
obligations of the Company and Crimson to effect the Merger are subject to the
satisfaction, at or prior to the consummation thereof, of certain conditions,
including, but not limited to, (i) the termination or expiration of the relevant
waiting period under the Hart-Scott-Rodino Antitrust Improvements Act of 1976,
as amended ("HSR Act"), (ii) the absence of any judicial order or legal
restraint preventing the consummation of the Merger and (iii) the effectiveness
of a registration statement on Form S-4 used in connection with the Merger and
the absence of any stop order or proceeding seeking a stop order suspending such
effectiveness. On June 20, 1995, the Federal Trade Commission and the Antitrust
Division of the Department of Justice granted early termination of the waiting
period under the HSR Act with respect to the Merger. On July 17, 1995, the
registration statement on Form S-4 was declared effective by the Commission. The
obligations of Crimson to effect the Merger are further subject to (i) the
receipt, in form and substance reasonably satisfactory to Crimson, of such
licenses (including beer, wine and/or liquor licenses), permits, consents,
approvals, authorizations, qualifications and orders of governmental authorities
and other third parties as are necessary in connection with the transactions
contemplated by the Merger Agreement, (ii) the absence of any pending or
threatened governmental suit, action or proceeding (or, with respect to any
person, any suit, action or proceeding which has a reasonable likelihood of
success) challenging any of the transactions contemplated in connection with the
Merger and (iii) the receipt of proceeds of financing on terms satisfactory to
Crimson in an amount sufficient to consummate the transactions contemplated by
the Merger Agreement, including, without limitation, (a) the payment of the cash
merger consideration, (b) the refinancing of outstanding indebtedness of the
Company, (c) the
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payment of transaction fees associated with the Merger and the financing thereof
and (d) the provision of working capital needs of the Company following the
Merger.
The Merger Agreement contains customary representations and warranties as
well as covenants which, among other things, provide that the Company will, and
will cause its subsidiaries to, up to the Effective Time of the Merger, act and
carry on their respective businesses in the usual, regular and ordinary course
of business consistent with past practice. In addition, the Company has agreed,
among other things and subject to certain exceptions, that it will not, and will
not permit any of its subsidiaries to, without the prior consent of Crimson, (i)
declare or pay any dividends on its capital stock (other than certain dividends
which have already been declared and paid); (ii) split or reclassify its capital
stock; (iii) acquire Common Stock; (iv) encumber its capital stock or that of
its subsidiaries; (v) acquire any new business; (vi) encumber or sell any of its
properties or assets; (vii) incur any indebtedness, except for short-term
borrowings and lease obligations; (viii) acquire any material assets or make any
capital expenditures; (ix) authorize a liquidation, merger or restructuring; (x)
except upon mutual agreement of the parties, enter into any collective
bargaining agreement; (xi) change any material accounting principle; or (xii)
settle any litigation. The Company has also agreed, subject to certain
exceptions, that neither it nor any of its subsidiaries will adopt or amend any
employee benefit plan, grant any new or modified severance or termination
arrangement, effectuate any plant closing or mass layoff, make any tax election
or settle any tax liability.
The Merger Agreement provides for termination thereof at any time prior to
the Effective Time of the Merger, whether before or after approval of the Merger
by the shareholders of the Company, (i) upon the mutual written consent of
Crimson and the Company, (ii) by Crimson or the Company, upon the taking of any
final and nonappealable action prohibiting the Merger by any federal, state or
local governmental authority, or if the Merger is not consummated on or before
October 31, 1995 and (iii) by Crimson, among other things, upon (a) the failure
to obtain Company shareholder approval, (b) the withdrawal, modification or
amendment of the Company's recommendation of the Merger and (c) the taking of
certain actions by the Company with respect to a third party transaction
proposal or the failure by the Company to take certain actions during the
pendency of such a proposal or in pursuance of the Merger Agreement.
If the Merger is consummated in accordance with the Merger Agreement, the
Company will pay KKR, on the closing date of the Merger, a fee of $15 million in
cash, and will also reimburse KKR for all of its expenses in connection with the
transactions contemplated by the Merger Agreement. If the Merger is not
consummated in accordance with the Merger Agreement, among other things and
subject to certain conditions, (i) the Company will reimburse KKR for all its
expenses contemplated by the Merger Agreement, up to an aggregate of $3 million,
or (ii) the Company will reimburse KKR for up to an aggregate of $12.5 million
of its expenses and will pay KKR $30 million in addition to such reimbursement
if the Merger Agreement is terminated under certain circumstances generally
related to the presence of a third party transaction proposal or the acquisition
by a third party of Common Stock.
The Company expects that the Merger will be financed by the proceeds of term
loans ($550.0 million), debt securities ($350.0 million), revolving credit loans
($5.1 million) and an equity contribution by Crimson ($250.0 million). The
proceeds of such financings will be applied to cash merger consideration ($880.1
million), repayment of historical debt ($200.0 million) and fees and expenses
($75.0 million). The fees and expenses are anticipated to consist of (i) fees
and expenses related to financing the Merger, including bank syndication and
commitment fees and underwriting discounts and commissions, (ii) fees in
connection with the prepayment of historical debt and an interest rate swap,
(iii) professional, advisory and investment banking fees and expenses and (iv)
miscellaneous fees and expenses, such as printing and filing fees. Included in
the $75.0 million of estimated fees and expenses is the $15 million fee payable
by the Company to KKR in the event the Merger closes in accordance with the
Merger Agreement. It is expected that the most substantial portion of the
remaining estimated fees and expenses will relate to financing the Merger.
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Stockholders Agreement. Pursuant to the Stockholders Agreement, holders of
approximately 24% of the Common Stock have agreed, among other things and
subject to certain conditions, to vote in favor of the Merger Agreement and to
refrain from soliciting competing transaction proposals and from taking certain
other actions. Except for certain covenants which will survive the Effective
Time of the Merger, the covenants and agreements in the Stockholders Agreement
terminate on the first to occur of (a) the Effective Time of the Merger and (b)
the date the Merger Agreement is terminated in accordance with its terms.
Stock Option Agreement. Pursuant to a Stock Option Agreement, dated as of
April 20, 1995, as amended as of May 18, 1995 (the "Option Agreement"), between
the Company and Crimson, the Company has granted to Crimson an irrevocable
option, expiring upon the first to occur of the Effective Time of the Merger and
April 30, 1996, which may be exercised by Crimson or its designee (which may be
an affiliate or a third party), in whole or in part, to purchase up to
15,541,570 newly issued shares of Common Stock (or 16.6% of the outstanding
Common Stock after giving effect to the issuance of such shares) at an exercise
price of $12.00 per share in cash (the "Exercise Price"). Any such issuance
would dilute the proportionate holdings of all of the Company's shareholders.
Such shares would be cancelled and would not be entitled to be converted into
any merger consideration in the Merger. The terms of the Option Agreement
provide, among other things, for upward adjustment of the Exercise Price in
certain circumstances. The number and kind of securities subject to the Option
Agreement and the Exercise Price are also subject to adjustments in the event of
certain changes in the number of issued and outstanding shares of Common Stock.
The Option Agreement also includes customary provisions relating to the
registration and listing of such option shares.
USE OF PROCEEDS
The Offered Securities may be offered by the Company from time to time as
determined by the Company. Unless otherwise indicated in the applicable
Prospectus Supplement, the net proceeds from the sale of the Offered Securities
will be added to the Company's funds and be used for general corporate purposes,
including development, acquisition or capital improvement of its stores and
operations. If the Merger is consummated, the Company may use a portion of the
net proceeds from one or more series of the Offered Securities to (i) pay a
portion of the $880.1 million of cash merger consideration, (ii) refinance all
or a portion of $200.0 million of indebtedness and (iii) pay all or a portion of
an estimated $75.0 million of fees and expenses related to the Merger. The
indebtedness that may be refinanced consists of $100.0 million aggregate
principal amount of 6.62% Series A Senior Notes due 2003 and $100.0 million
aggregate principal amount of 7.09% Series B Senior Notes due 2008.
7
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RATIOS OF EARNINGS TO FIXED CHARGES
The following table sets forth the ratios of earnings to fixed charges for
the Company and its consolidated subsidiaries for the periods indicated.
<TABLE>
<CAPTION>
PRO
FORMA
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JUNE 30, JUNE 29, JUNE 27, JULY 3, JULY 2, APRIL 9, APRIL 8, APRIL 8,
1990 1991 1992 1993 1994 1994 1995 1995
(52 WEEKS) (52 WEEKS) (52 WEEKS) (53 WEEKS) (52 WEEKS) (40 WEEKS) (40 WEEKS) (40 WEEKS)
---------- ----------- ---------- ---------- ---------- ---------- ---------- ----------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Ratio of earnings to
fixed charges (1).... 4.59 5.08 4.09 3.20 2.91 2.77 2.03(2) 0.78(3)
</TABLE>
- ------------
(1) For purposes of computing the ratio of earnings to fixed charges, "earnings"
consist of income before income taxes and extraordinary loss on
extinguishment of debt, plus fixed charges. "Fixed charges" consist of
interest expense and one-third of rental expense (the portion deemed
representative of the interest factor).
(2) The ratio of earnings to fixed charges for the 40 weeks ended April 8, 1995
reflects a $22.2 million charge ($19.0 million of which is nonrecurring) due
to a change in accounting estimate relating to the Company's self-insurance
reserves.
(3) The pro forma calculation of earnings to fixed charges for the 40 weeks
ended April 8, 1995 assumes that the Merger was completed on July 3, 1994
and (i) the issuance by the Company on such date of $555.1 million of term
loans and revolving credit loans (assumed 9.0% average rate), (ii) the
issuance by the Company of $350 million of other debt securities (assumed
10.75% average rate) and (iii) the repayment of $100 million of 6.62% Series
A Senior Notes due 2003 and $100 million of 7.09% Series B Senior Notes due
2008. On a pro forma basis, earnings were insufficient to cover fixed
charges by $18.1 million.
DESCRIPTION OF THE DEBT SECURITIES
The following description of the terms of the Debt Securities sets forth
certain general terms and provisions of the Debt Securities to which any
Prospectus Supplement may relate. The particular terms of the Debt Securities
being offered (the "Offered Debt Securities"), the extent, if any, to which such
general provisions may apply to the Offered Securities and any modifications of
or additions to the general terms of the Debt Securities applicable in the case
of the Offered Debt Securities will be described in the Prospectus Supplement
relating to such Debt Securities.
The Senior Debt Securities are to be issued under an indenture to be dated
as of a date on or prior to the first issuance of Senior Debt Securities, as
supplemented from time to time (the "Senior Indenture"), between the Company and
First Trust of New York, National Association (the "Senior Debt Trustee"), and
the Subordinated Debt Securities are to be issued under an indenture to be dated
as of a date on or prior to the first issuance of Subordinated Debt Securities,
as supplemented from time to time (the "Subordinated Indenture"), between the
Company and Marine Midland Bank (the "Subordinated Debt Trustee"). The term
"Trustee" as used herein shall refer to either the Senior Debt Trustee or the
Subordinated Debt Trustee, as appropriate, for Senior Debt Securities or
Subordinated Debt Securities. The form of the Senior Indenture and the form of
the Subordinated Indenture (being referred to herein collectively as the
"Indentures" and individually as an "Indenture") are filed as exhibits to the
Registration Statement. The Indentures are subject to and governed by the Trust
Indenture Act of 1939, as amended (the "TIA"). The statements made under this
heading relating to the Debt Securities and the Indentures are summaries of the
provisions thereof and are qualified in their entirety by reference to the
Indentures, including the definitions of certain terms therein and in the TIA.
Certain capitalized terms used below but not defined herein have the meanings
ascribed to them in the applicable Indenture.
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GENERAL
The Debt Securities will be direct, unsecured obligations of the Company.
The indebtedness represented by the Senior Debt Securities will rank equally
with all other unsecured and unsubordinated indebtedness of the Company. The
indebtedness represented by the Subordinated Debt Securities will be
subordinated in right of payment to the prior payment in full of the Senior
Indebtedness of the Company (including the Senior Debt Securities) as described
under "Subordination" below. The Indentures provide that the Debt Securities may
be issued without limit as to aggregate principal amount, in one or more series,
in each case as established from time to time in or pursuant to authority
granted by a resolution of the Board of Directors of the Company or as
established in one or more indentures supplemental to the Indenture. All Debt
Securities of one series need not be issued at the same time and, unless
otherwise provided, a series may be reopened, without the consent of the holders
of the Debt Securities of such series, for issuances of additional Debt
Securities of such series.
The Indentures provide that there may be more than one Trustee thereunder,
each with respect to one or more series of Debt Securities. Any Trustee under
the Indentures may resign or be removed with respect to one or more series of
Debt Securities, and a successor Trustee may be appointed to act with respect to
such series. In the event that two or more persons are acting as Trustee with
respect to different series of Debt Securities, each such Trustee shall be a
Trustee of a trust under the Indenture separate and apart from the trust
administered by any other Trustee, and, except as otherwise indicated herein,
any action described herein to be taken by the Trustee may be taken by each such
Trustee with respect to, and only with respect to, the one or more series of
Debt Securities for which it is Trustee under the applicable Indenture.
The accompanying Prospectus Supplement will set forth the terms of the
Offered Debt Securities, which may include the following:
(1) The title of the Offered Debt Securities and whether they are
Senior Debt Securities or Subordinated Debt Securities (which shall
distinguish the Debt Securities of such Offered Debt Securities from all
other series of Debt Securities).
(2) The aggregate principal amount of the Offered Debt Securities and
any limit on the aggregate principal amount of the Offered Debt Securities
of such series.
(3) The percentage of the principal amount at which the Offered Debt
Securities will be issued and, if other than the principal amount thereof,
the portion of the principal amount thereof payable upon declaration of
acceleration of the maturity or upon redemption thereof or the method by
which such portion shall be determined.
(4) The date or dates on which or periods during which the Offered Debt
Securities may be issued, and the date or dates, or the method by which such
date or dates will be determined, on which the principal of (and premium, if
any, on) the Offered Debt Securities are, or may be, payable (which may be
determined by the Company from time to time as set forth in the Prospectus
Supplement for such Offered Debt Securities).
(5) The rate or rates (which may be variable or fixed) at which the
Offered Debt Securities will bear interest, if any, or the method by which
such rate or rates shall be determined, the date or dates from which such
interest, if any, shall accrue or the method by which such date or dates
shall be determined, the interest payment dates on which such interest will
be payable (or the method of determination thereof) and the record dates, if
any, for the interest payable on such interest payment dates, and the
notice, if any, to holders regarding the determination of interest and the
manner of giving such notice, the basis upon which interest shall be
calculated if other than that of a 360-day year of twelve 30-day months and
any conditions or contingencies as to the payment of interest in cash or
otherwise, if any.
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<PAGE>
(6) The place or places where the principal of (and premium, if any)
and interest on the Offered Debt Securities shall be payable; the extent to
which, or the manner in which, any interest payable on any Global Note (as
defined below) on an interest payment date will be paid, and the manner in
which any principal of, or premium, if any, on, any Global Note will be paid
and whether any Global Note will require any notation to evidence payment of
principal or interest.
(7) The obligation, if any, of the Company to redeem, repay, purchase
or offer to purchase the Offered Debt Securities pursuant to any mandatory
redemption, sinking fund or analogous provisions or upon other conditions or
at the option of the Holder thereof and the period or periods within which,
or the dates on which, the prices at which and the terms and conditions upon
which the Offered Debt Securities shall be redeemed, repaid, purchased or
offered to be purchased, in whole or in part, pursuant to such obligation.
(8) The right, if any, of the Company to redeem the Offered Debt
Securities at its option and the period or periods within which, or the date
or dates on which, the price or prices at which, and the terms and
conditions upon which Offered Debt Securities may be redeemed, if any, in
whole or in part, at the option of the Company or otherwise.
(9) If the coin or currency in which the Offered Debt Securities shall
be issuable is U.S. dollars, the denominations of the Offered Debt
Securities if other than denominations of $1,000 and any integral multiple
thereof.
(10) Whether the Offered Debt Securities are to be issued as original
issue discount securities ("Discount Securities") and the amount of discount
at which such Offered Debt Securities may be issued and, if other than the
principal amount thereof, the portion of the principal amount of Offered
Debt Securities which shall be payable upon declaration of acceleration of
the Maturity thereof upon an Event of Default.
(11) Provisions, if any, for the defeasance or discharge of certain of
the Company's obligations with respect to the Offered Debt Securities.
(12) Whether the Offered Debt Securities are to be issued as registered
securities ("Registered Securities") or bearer securities ("Bearer
Securities") or both, and, if Bearer Securities are issued, whether any
interest coupons appertaining thereto ("Coupons") will be attached thereto,
whether such Bearer Securities may be exchanged for Registered Securities
and the circumstances under which, and the place or places at which, any
such exchanges, if permitted, may be made.
(13) Whether provisions for payment of additional amounts or tax
redemptions shall apply and, if such provisions shall apply, such
provisions; and, if any of the Offered Debt Securities are to be issued as
Bearer Securities, the applicable procedures and certificates relating to
the exchange of temporary Global Notes for definitive Bearer Securities.
(14) If other than U.S. dollars, the currency, currencies or currency
units (the term "currency" as used herein will include currency units,
including European Currency Units ("ECU"), in which the Offered Debt
Securities shall be denominated or in which payment of the principal of (and
premium, if any) and interest on the Offered Debt Securities may be made,
and particular provisions applicable thereto and, if applicable, the amount
of the Offered Debt Securities which entitles the holder or its proxy to one
vote for purposes of the Indenture.
(15) If the principal of (and premium, if any) or interest on the
Offered Debt Securities are to be payable, at the election of the Company or
a Holder thereof, in a currency other than that in which the Offered Debt
Securities are denominated or payable without such election, in addition to
or in lieu of the applicable provisions of the Indentures, the period or
periods within which and the terms and conditions upon which, such election
may be made and the time and the manner of determining the exchange rate or
rates between the currency or currencies in which the Offered
10
<PAGE>
Debt Securities are denominated or payable without such election and the
currency or currencies in which the Offered Debt Securities are to be paid
if such election is made.
(16) The date as of which any Offered Debt Securities shall be dated.
(17) If the amount of payments of principal of (and premium, if any) or
interest on the Offered Debt Securities may be determined with reference to
an index, including, but not limited to, an index based on a currency or
currencies other than that in which the Offered Debt Securities are
denominated or payable, or any other type of index, the manner in which such
amounts shall be determined.
(18) If the Offered Debt Securities are denominated or payable in a
foreign currency, any other terms concerning the payment of principal of
(and premium, if any) or any interest on the Offered Debt Securities
(including the currency or currencies of payment thereof).
(19) The designation of the original currency determination agent, if
any.
(20) The applicable overdue interest rate, if any.
(21) If the Offered Debt Securities do not bear interest, applicable
dates for determining record holders of Offered Debt Securities.
(22) Any addition to, or modification or deletion of, any Events of
Default, covenants or terms of the subordination provided for in the
applicable Indenture with respect to the Offered Debt Securities.
(23) If any of the Offered Debt Securities are to be issued as Bearer
Securities, (x) whether interest in respect of any portion of a temporary
Debt Security in global form payable in respect of any interest payment date
prior to the exchange of such temporary Offered Debt Security for definitive
Offered Debt Securities shall be paid to any clearing organization with
respect to the portion of such temporary Offered Debt Security held for its
account and, in such event, the terms and conditions (including any
certification requirements) upon which any such interest payment received by
a clearing organization will be credited to the persons entitled to interest
payable on such interest payment date, (y) the terms upon which interests in
such temporary Offered Debt Security in global form may be exchanged for
interests in a permanent Global Note or for definitive Offered Debt
Securities and the terms upon which interests in a permanent Global Note, if
any, may be exchanged for definitive Offered Debt Securities and (z) the
cities and publications designated for the purposes of giving notices to
Holders.
(24) Whether the Offered Debt Securities shall be issued in whole or in
part in the form of one or more Global Notes and, in such case, the
depositary or any common depositary for such Global Notes; and if the
Offered Debt Securities are issuable only as Registered Securities, the
manner in which and the circumstances under which Global Notes representing
Offered Debt Securities may be exchanged for Registered Securities in
definitive form.
(25) The designation, if any, of any depositaries, trustees (other than
the applicable Trustee), paying agents, authenticating agents, security
registrars (other than the Trustee) or other agents with respect to the
Offered Debt Securities.
(26) If the Offered Debt Securities are to be issuable in definitive
form only upon receipt of certain certificates or other documents or upon
satisfaction of certain conditions, the form and terms of such certificates,
documents or conditions.
(27) Whether the Offered Debt Securities will be convertible into shares
of Common Stock and, if so, the terms and conditions, which may be in
addition to or in lieu of the provisions
11
<PAGE>
contained in the Indentures, upon which such Offered Debt Securities will be
so convertible, including the conversion price and the conversion period.
(28) The portion of the principal amount of the Offered Debt Securities
which will be payable upon declaration of acceleration of the maturity
thereof, if other than the principal amount thereof.
(29) The nature, content and dates for reports by the Company to the
holders of the Offered Debt Securities or the Trustees.
(30) Any other terms of the Offered Debt Securities not specified in the
Indenture under which such Offered Debt Securities are to be issued.
Each Indenture provides that the aggregate principal amount of Debt
Securities that may be issued thereunder is unlimited. The Debt Securities may
be issued in one or more series thereunder, in each case as authorized from time
to time by the Board of Directors of the Company, or any committee thereof or
any duly authorized officer.
In the event that Discount Securities are issued, the Federal income tax
consequences and other special considerations applicable to such Discount
Securities will be described in the Prospectus Supplement relating thereto.
The general provisions of the Indentures do not contain any provisions that
would limit the ability of the Company or its Subsidiaries to incur indebtedness
or that would afford holders of Debt Securities protection in the event of a
highly leveraged or similar transaction involving the Company or its
Subsidiaries. Reference is made to the accompanying Prospectus Supplement for
information with respect to any deletions from, modifications of or additions,
if any, to the Events of Default of the Company described below that are
applicable to the Offered Debt Securities or any covenants or other provisions
providing event risk or similar protection.
All of the Debt Securities of a series need not be issued at the same time,
and may vary as to interest rate, maturity and other provisions and unless
otherwise provided, a series may be reopened for issuance of additional Debt
Securities of such series.
The Debt Securities of certain series may be issued under the Indentures
upon the exercise of Securities Warrants issued with other Debt Securities or
upon exchange or conversion of exchangeable or convertible Debt Securities. The
specific terms of any such Securities Warrants, the specific terms of exchange
or conversion of any such Debt Securities and the specific terms of the Debt
Securities issuable upon the exercise of any such Securities Warrants or upon
any such exchange or conversion will be described in the Prospectus Supplement
relating to any Debt Securities issued with Securities Warrants or any such
exchangeable or convertible Debt Securities.
DENOMINATIONS, REGISTRATION AND TRANSFER
Unless specified in the Prospectus Supplement, the Debt Securities of any
series shall be issuable only as Registered Securities in denominations of
$1,000 and any integral multiple thereof and shall be payable only in U.S.
dollars. The Indentures also provide that Debt Securities of a series may be
issuable in global form. See "Book-Entry Debt Securities."
Unless otherwise indicated in the Prospectus Supplement, Bearer Securities
(other than in global form) will have Coupons attached.
Registered Securities of any series will be exchangeable for other
Registered Securities of the same series of like aggregate principal amount and
of like Stated Maturity and with like terms and conditions. If so specified in
the Prospectus Supplement, at the option of the Holder thereof, to the extent
permitted by law, any Bearer Security of any series which by its terms is
registrable as to
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<PAGE>
principal and interest may be exchanged for a Registered Security of such series
of like aggregate principal amount and of a like Stated Maturity and with like
terms and conditions, upon surrender of such Bearer Security at the corporate
trust office of the applicable Trustee or at any other office or agency of the
Company designated for the purpose of making any such exchanges. Subject to
certain exceptions, any Bearer Security issued with Coupons surrendered for
exchange must be surrendered with all unmatured Coupons and any matured Coupons
in default attached thereto.
Notwithstanding the foregoing, the exchange of Bearer Securities for
Registered Securities will be subject to the provisions of United States income
tax laws and regulations applicable to Debt Securities in effect at the time of
such exchange.
Except as otherwise specified in the Prospectus Supplement, in no event may
Registered Securities, including Registered Securities received in exchange for
Bearer Securities, be exchanged for Bearer Securities.
Upon surrender for registration of transfer of any Registered Security of
any series at the office or agency of the Company maintained for such purpose,
the Company shall deliver, in the name of the designated transferee, one or more
new Registered Securities of the same series of like aggregate principal amount
of such denominations as are authorized for Registered Securities of such series
and of a like Stated Maturity and with like terms and conditions. No service
charge will be made for any transfer or exchange of Debt Securities, but the
Company may require payment of a sum sufficient to cover any tax or other
governmental charge payable in connection therewith.
The Company shall not be required (i) to register, transfer or exchange Debt
Securities of any series during a period beginning at the opening of business 15
days before the day of the transmission of a notice of redemption of Debt
Securities of such series selected for redemption and ending at the close of
business on the day of such transmission, or (ii) to register, transfer or
exchange any Debt Security so selected for redemption in whole or in part,
except the unredeemed portion of any Debt Security being redeemed in part.
EVENTS OF DEFAULT
Under the Indentures, "Event of Default" with respect to the Debt Securities
of any series means any one of the following events (whatever the reason for
such Event of Default and whether it shall be voluntary or involuntary or be
effected by operation of law, pursuant to any judgment, decree or order of any
court or any order, rule or regulation of any administrative or governmental
body): (1) default in the payment of any interest upon any Debt Security or any
payment with respect to the Coupons, if any, of such series when it becomes due
and payable, and continuance of such default for a period of 30 days; (2)
default in the payment of the principal of (and premium, if any, on) any Debt
Security of such series at its Maturity; (3) default in the deposit of any
sinking fund payment, when and as due by the terms of a Debt Security of such
series; (4) default in the performance, or breach, of any covenant or warranty
in the applicable Indenture (other than a covenant or warranty a default in
whose performance or whose breach is elsewhere specifically dealt with or which
expressly has been included in the applicable Indenture solely for the benefit
of Debt Securities of a series other than such series), and continuance of such
default or breach for a period of 30 days after there has been given by
registered or certified mail, to the Company by the applicable Trustee or to the
Company and the applicable Trustee by the Holders of at least 30% in principal
amount of the outstanding Debt Securities of such series, a written notice
specifying such default or breach and requiring it to be remedied and stating
that such notice is a "Notice of Default"; (5) certain events of bankruptcy,
insolvency or reorganization with respect to the Company; or (6) any other Event
of Default provided with respect to Debt Securities of that series.
Each Indenture requires the Company to file with the applicable Trustee,
annually, an officers' certificate as to the Company's compliance with all
conditions and covenants under the applicable Indenture. Each Indenture provides
that the applicable Trustee may withhold notice to the Holders of a
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series of Debt Securities of any default (except payment defaults on such Debt
Securities) if it considers such withholding to be in the interest of the
Holders of such series of Debt Securities.
If an Event of Default with respect to Debt Securities of any series at the
time outstanding occurs and is continuing, then in every case the applicable
Trustee or the Holders of not less than 25% in principal amount of the
outstanding Debt Securities of such series may declare the principal amount (or,
if any Debt Securities of such series are Discount Securities, such portion of
the principal amount of such Discount Securities as may be specified in the
terms of such Discount Securities) of all the Debt Securities of such series to
be due and payable immediately, by a notice in writing to the Company (and to
the applicable Trustee if given by Holders), and upon any such declaration such
principal amount (or specified amount), plus accrued and unpaid interest (and
premium, if any) shall become immediately due and payable. Upon payment of such
amount in the currency in which such Debt Securities are denominated (except as
otherwise provided in the applicable Indenture or specified in the Prospectus
Supplement), all obligations of the Company in respect of the payment of
principal of the Debt Securities of such series shall terminate.
Subject to the provisions of each Indenture relating to the duties of the
applicable Trustee, in case an Event of Default with respect to Debt Securities
of a particular series shall occur and be continuing, the applicable Trustee
shall be under no obligation to exercise any of its rights or powers under such
Indenture at the request, order or direction of any of the Holders of Debt
Securities of that series, unless such Holders shall have offered to the
applicable Trustee reasonable security or indemnity against the costs, expenses
and liabilities which might be incurred by it in complying with such request or
direction. Subject to such provisions for the indemnification of the applicable
Trustee, the Holders of a majority in principal amount of the outstanding Debt
Securities of such series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the applicable
Trustee under such Indenture, or exercising any trust or power conferred on the
applicable Trustee with respect to the Debt Securities of that series.
At any time after such a declaration of acceleration with respect to Debt
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the applicable Trustee as provided
in the Indentures, the Holders of a majority in principal amount of the
outstanding Debt Securities of such series, by written notice to the Company and
the applicable Trustee, may rescind and annul such declaration and its
consequences, subject to any terms or conditions specified in the applicable
Prospectus Supplement.
MERGER OR CONSOLIDATION
Each Indenture provides that the Company may not consolidate with or merge
with or into or wind up into (whether or not the Company is the surviving
corporation) or sell, assign, convey, transfer or lease its properties and
assets substantially as an entirety to any Person, unless (1) the corporation
formed by such consolidation or into which the Company is merged or the Person
which acquires by conveyance or transfer, or which leases, the properties and
assets of the Company substantially as an entirety (the "successor corporation")
is a corporation organized and existing under the laws of the United States or
any State or territory thereof or the District of Columbia and expressly assumes
by a supplemental indenture the due and punctual payment of the principal of
(and premium, if any) and interest on all the Debt Securities and Coupons, if
any, issued under the applicable Indenture and the performance of every covenant
in the applicable Indenture on the part of the Company to be performed or
observed; (2) immediately after giving effect to such transaction, no Event of
Default under the applicable Indenture, and no event which, after notice or
lapse of time, or both, would become such an Event of Default, shall have
happened and be continuing; and (3) such other conditions as may be specified in
the applicable Prospectus Supplement.
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MODIFICATION OR WAIVER
Without prior notice to or consent of any Holders, the Company and the
applicable Trustee, at any time and from time to time, may modify the applicable
Indenture for any of the following purposes: (1) to evidence the succession of
another corporation to the rights of the Company and the assumption by such
successor of the covenants and obligations of the Company in the applicable
Indenture and in the Debt Securities and Coupons, if any, issued thereunder in
accordance with the terms of the applicable Indenture; (2) to add to the
covenants of the Company for the benefit of the Holders of all or any series of
Debt Securities and the Coupons, if any, appertaining thereto (and if such
covenants are to be for the benefit of less than all series, stating that such
covenants are expressly being included solely for the benefit of such series),
or to surrender any right or power conferred in the applicable Indenture upon
the Company; (3) to add any additional Events of Default (and if such Events of
Default are to be applicable to less than all series, stating that such Events
of Default are expressly being included solely to be applicable to such series);
(4) to add or change any of the provisions of the applicable Indenture to such
extent as shall be necessary to permit or facilitate the issuance thereunder of
Debt Securities of any series in bearer form, registrable or not registrable,
and with or without Coupons, to permit Bearer Securities to be issued in
exchange for Registered Securities, to permit Bearer Securities to be issued in
exchange for Bearer Securities of other authorized denominations or to permit
the issuance of Debt Securities of any series in uncertificated form, provided
that any such action shall not adversely affect the interests of the Holders of
Debt Securities of any series or any related Coupons in any material respect;
(5) to change or eliminate any of the provisions of the applicable Indenture,
provided that any such change or elimination will become effective only when
there is no outstanding Debt Security issued thereunder or Coupon of any series
created prior to such modification which is entitled to the benefit of such
provision and as to which such modification would apply; (6) to secure the Debt
Securities issued thereunder or to provide that any of the Company's obligations
under the Debt Securities or the applicable Indenture shall be guaranteed and
the terms and conditions for the release or substitution of such security or
guarantee; (7) to supplement any of the provisions of the applicable Indenture
to such extent as is necessary to permit or facilitate the defeasance and
discharge of any series of Debt Securities, provided that any such action will
not adversely affect the interests of the Holders of Debt Securities of such
series or any other series of Debt Securities issued under such Indenture or any
related Coupons in any material respect; (8) to establish the form or terms of
Debt Securities and Coupons, if any, as permitted by the applicable Indenture;
(9) to evidence and provide for the acceptance of appointment thereunder by a
successor Trustee with respect to one or more series of Debt Securities and to
add to or change any of the provisions of the applicable Indenture as is
necessary to provide for or facilitate the administration of the trusts
thereunder by more than one Trustee; or (10) to cure any ambiguity, to correct
or supplement any provision in the applicable Indenture which may be defective
or inconsistent with any other provision therein, to eliminate any conflict
between the terms of the applicable Indenture and the Debt Securities issued
thereunder and the TIA or to make any other provisions with respect to matters
or questions arising under the applicable Indenture which will not be
inconsistent with any provision of the applicable Indenture; provided such other
provisions shall not adversely affect the interests of the Holders of
outstanding Debt Securities or Coupons, if any, of any series created thereunder
prior to such modification in any material respect.
With the written consent of the Holders of not less than a majority in
principal amount of the outstanding Debt Securities of each series affected by
such modification voting separately, the Company and the applicable Trustee may
modify the applicable Indenture for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of the applicable
Indenture or of modifying in any manner the rights of the Holders of Debt
Securities and Coupons, if any, under the applicable Indenture; provided,
however, that such modifications may not, without the consent of the Holder of
each outstanding Debt Security of each series affected, conflict with the
required provisions of the TIA or make any change or modification specified in
the applicable Prospectus Supplement.
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A modification which changes or eliminates any covenant or other provision
of the applicable Indenture with respect to one or more particular series of
Debt Securities and Coupons, if any, or which modifies the rights of the Holders
of Debt Securities and Coupons of such series with respect to such covenant or
other provision, shall be deemed not to affect the rights under the applicable
Indenture of the Holders of Debt Securities and Coupons, if any, of any other
series.
Each of the Indentures provides that the Holders of not less than a majority
in aggregate principal amount of the then outstanding Debt Securities of any
series, by notice to the relevant Trustee, may on behalf of the Holders of the
Debt Securities of such series waive any Default or Event of Default and its
consequences under the applicable Indenture, except (1) a continuing Default or
Event of Default in the payment of interest on, premium, if any, or the
principal of, any such Debt Security held by a non-consenting Holder or (2) a
default in respect of a covenant or provision hereof which cannot be modified or
amended without the consent of the Holder of each outstanding Debt Security of
each series affected.
SUBORDINATION
Upon any distribution of assets of the Company upon the dissolution, winding
up, liquidation or reorganization of the Company, the payment of the principal
of (and premium, if any) and interest on the Subordinated Debt Securities will
be subordinated to the extent provided in the Subordinated Indenture or as
described in the applicable Prospectus Supplement in right of payment to the
prior payment in full of all Senior Indebtedness, including Senior Debt
Securities, but the obligation of the Company to make payment of principal (and
premium, if any) or interest on the Subordinated Debt Securities will not
otherwise be affected. Unless otherwise indicated in a Prospectus Supplement, no
payment on account of principal (and premium, if any), sinking funds or interest
may be made on the Subordinated Debt Securities at any time when there is a
default in the payment of principal (and premium, if any), interest or certain
other obligations on Senior Indebtedness. In addition, the Prospectus Supplement
for each series of Subordinated Debt Securities may provide that payments on
account of principal (any premium, if any) or interest in respect of such
Subordinated Debt Securities may be delayed or not paid under the circumstances
and for the periods specified in such Prospectus Supplement. Unless otherwise
indicated in a Prospectus Supplement, in the event that, notwithstanding the
foregoing, any payment by the Company described in the foregoing sentence is
received by the Trustee under the Subordinated Indenture or the Holders of any
of the Subordinated Debt Securities before all Senior Indebtedness is paid in
full, such payment or distribution shall be paid over to the Holders of such
Senior Indebtedness or on their behalf for application to the payment of all
such Senior Indebtedness remaining unpaid until all such Senior Indebtedness
shall have been paid in full, after giving effect to any concurrent payment or
distribution to the Holders of such Senior Indebtedness. Subject to payment in
full of Senior Indebtedness, the Holders of the Subordinated Debt Securities
will be subrogated to the rights of the Holders of the Senior Indebtedness to
the extent of payments made to the Holders of such Senior Indebtedness out of
the distributive share of the Subordinated Debt Securities.
By reason of such subordination, in the event of a distribution of assets
upon insolvency, certain general creditors of the Company may recover more,
ratably, than holders of the Subordinated Debt Securities. The Subordinated
Indenture provides that the subordination provisions thereof shall not apply to
money and securities held in trust pursuant to the satisfaction and discharge
and the legal defeasance provisions of the Subordinated Indenture.
If this Prospectus is being delivered in connection with the offering of a
series of Subordinated Debt Securities, the accompanying Prospectus Supplement
or the information incorporated by reference therein will set forth the
approximate amount of Senior Indebtedness outstanding as of a recent date.
"Senior Indebtedness" with respect to any series of Subordinated Debt Securities
shall have the meaning specified in the applicable Prospectus Supplement for
such series.
16
<PAGE>
DISCHARGE, LEGAL DEFEASANCE AND COVENANT DEFEASANCE
The applicable Indenture with respect to the Debt Securities of any series
may be discharged, subject to certain terms and conditions as specified in the
applicable Prospectus Supplement when either (A) all Debt Securities (with
certain exceptions as provided in the Indenture) and the Coupons, if any, of
such series have been delivered to the applicable Trustee for cancellation, (B)
all Debt Securities and the Coupons, if any, of such series not theretofore
delivered to the applicable Trustee for cancellation (i) have become due and
payable, (ii) will become due and payable at their Stated Maturity within one
year or (iii) are to be called for redemption within one year or (C) certain
events or conditions occur as specified in the applicable Prospectus Supplement.
In addition, each series of Debt Securities may provide additional or different
terms or conditions for the discharge or defeasance of some or all of the
obligations of the Company as may be specified in the applicable Prospectus
Supplement.
If provision is made for the defeasance of Debt Securities of a series, and
if the Debt Securities of such series are Registered Securities and denominated
and payable only in U.S. dollars, then the provisions of each Indenture relating
to defeasance shall be applicable except as otherwise specified in the
applicable Prospectus Supplement for Debt Securities of such series. Defeasance
provisions, if any, for Debt Securities denominated in a foreign currency or
currencies or for Bearer Securities may be specified in the applicable
Prospectus Supplement.
At the Company's option, either (a) the Company shall be deemed to have been
discharged from its obligations with respect to Debt Securities of any series
("legal defeasance option") or (b) the Company shall cease to be under any
obligation to comply with certain provisions of the applicable Indenture with
respect to the certain covenants, if any, specified in the applicable Prospectus
Supplement with respect to Debt Securities of any series ("covenant defeasance
option") at any time after the conditions set forth in the applicable Prospectus
Supplement have been satisfied.
PAYMENT AND PAYING AGENTS
The Company covenants and agrees for the benefit of each series of Debt
Securities and Coupons, if any, that it will duly and punctually pay the
principal of (and premium, if any) and interest on the Debt Securities in
accordance with the terms of the Debt Securities, the Coupons, if any, and the
applicable Indenture.
If Debt Securities of a series are issuable only as Registered Securities,
the Company will maintain in each Place of Payment for such series an office or
agency where Debt Securities of that series may be presented or surrendered for
payment, where Debt Securities of that series may be surrendered for
registration of transfer or exchange and where notices and demands to or upon
the Company in respect of the Debt Securities of that series and the applicable
Indenture may be served.
If Debt Securities of a series are issuable as Bearer Securities, the
Company will maintain or cause to be maintained (A) in the Borough of Manhattan,
The City and State of New York, an office or agency where any Registered
Securities of that series may be presented or surrendered for payment, where any
Registered Securities of that series may be surrendered for registration of
transfer, where Debt Securities of that series may be surrendered for exchange
or redemption, where notices and demands to or upon the Company in respect of
the Debt Securities of that series and the applicable Indenture may be served
and where Bearer Securities of that series and related Coupons may be presented
or surrendered for payment in the circumstances described in the following
paragraph (and not otherwise), (B) subject to any laws or registration
applicable thereto, in a Place of Payment for that series which is located
outside the United States, an office or agency where Debt Securities of that
series and related Coupons may be presented and surrendered for payment
(including payment of any additional amounts payable on Debt Securities of that
series, if so provided in such series; provided, however, that if the Debt
Securities of that series are listed on The Stock Exchange of the United Kingdom
and the Republic of Ireland, the Luxembourg Stock Exchange or any other stock
exchange
17
<PAGE>
located outside the United States and such stock exchange shall so require, the
Company will maintain a Paying Agent for the Debt Securities of that series in
London, Luxembourg or any other required city located outside the United States,
as the case may be, so long as the Debt Securities of that series are listed on
such exchange, and (C) subject to any laws or regulations applicable thereto, in
a Place of Payment for that series located outside the United States an office
or agency where any Registered Securities of that series may be surrendered for
registration of transfer, where Debt Securities of that series may be
surrendered for exchange or redemption and where notices and demands to or upon
the Company in respect of the Debt Securities of that series and the applicable
Indenture may be served. The Company will give prompt written notice to the
applicable Trustee of the locations, and any change in the locations, of such
offices or agencies. If at any time the Company shall fail to maintain any such
required office or agency or shall fail to furnish the applicable Trustee with
the address thereof, such presentations, surrenders, notices and demands may be
made or served at the corporate trust office of the applicable Trustee, except
that Bearer Securities of that series and the related coupons may be presented
and surrendered for payment at the offices specified in the applicable Debt
Security and the Company has appointed the applicable Trustee (or in the case of
Bearer Securities, may appoint such other agent as may be specified in the
applicable Prospectus Supplement) as its agent to receive all presentations,
surrenders, notices and demands.
No payment of principal, premium or interest on Bearer Securities shall be
made at any office or agency of the Company in the United States or by check
mailed to any address in the United States or by transfer to an account
maintained with a bank located in the United States; provided, however, that, if
the Debt Securities of a series are denominated and payable in U.S. dollars,
payment of principal of and any premium and interest on Debt Securities
(including any additional amounts payable on Securities of such series) of such
series, if specified in the applicable Prospectus Supplement, shall be made at
the office of the Company's Paying Agent in the Borough of Manhattan, the City
and State of New York, if (but only if) payment in U.S. dollars of the full
amount of such principal, premium, interest or additional amounts, as the case
may be, at all offices or agencies outside the United States maintained for the
purpose by the Company in accordance with the applicable Indenture is illegal or
effectively precluded by exchange controls or other similar restrictions.
BOOK-ENTRY DEBT SECURITIES
The Debt Securities of a series may be issued in whole or in part in global
form that will be deposited with, or on behalf of, a depositary identified in
the Prospectus Supplement. Global Notes may be issued in either registered or
bearer form and in either temporary or permanent form (each a "Global Note").
CONVERSION RIGHTS
The terms and conditions, if any, upon which Debt Securities being offered
are convertible into Common Stock will be set forth in the Prospectus Supplement
relating thereto. Such terms will include the conversion price, the conversion
period, provisions as to whether conversion will be at the option of the Holder
or the Company, the events requiring an adjustment of the conversion price and
provisions affecting conversion in the event of the redemption of such Debt
Securities.
CORPORATE EXISTENCE
Subject to the terms of the applicable Indenture, the Company will do or
cause to be done all things necessary to preserve and keep in full force and
effect its corporate existence, rights (charter and statutory) and franchises;
provided, however, that the Company shall not be required to preserve any such
right or franchise if the Company shall determine that the preservation thereof
is no longer desirable in the conduct of the business of the Company.
18
<PAGE>
DESCRIPTION OF CAPITAL STOCK
The authorized capital stock of the Company consists of 200,000,000 shares
of Common Stock, par value $.01 per share, of which 77,503,341 shares were
outstanding as of April 7, 1995. The Company is not authorized to issue
preferred stock. Upon the consummation of the Merger and adoption of the Amended
and Restated Articles of Incorporation, the authorized capital stock of the
Company will consist of 60,000,000 shares of Common Stock, par value $.01 per
share, of which 25,715,000 shares of Common Stock will be outstanding and
10,000,000 shares of Common Stock will be reserved for issuance upon the
exercise of the Warrants. Although the Common Stock is currently traded on the
Nasdaq National Market, the Company anticipates that it will seek to have the
Common Stock delisted.
Voting Rights. The holders of the Common Stock are entitled to one vote per
share on all matters submitted for action by the shareholders. There is no
provision for cumulative voting with respect to the election of directors.
Accordingly, the holders of more than 50% of the shares of Common Stock can, if
they choose to do so, elect all of the directors. In such event, the holders of
the remaining shares will not be able to elect any directors.
Dividend Rights. All shares of Common Stock are entitled to share equally in
such dividends as the Board of Directors may declare from sources legally
available therefor.
Liquidation Rights. Upon liquidation or dissolution of the Company, whether
voluntary or involuntary, all shares of Common Stock are entitled to share
equally in the assets available for distribution to shareholders after payment
of all prior obligations of the Company.
Other Matters. The holders of the Common Stock have no preemptive rights.
All outstanding shares of Common Stock are, and the Common Stock offered hereby
will be, fully paid and non-assessable.
DESCRIPTION OF SECURITIES WARRANTS
The Company may issue Securities Warrants for the purchase of Debt
Securities or Common Stock. Securities Warrants may be issued independently or
together with Debt Securities or Common Stock offered by any Prospectus
Supplement and may be attached to or separate from any such Offered Securities.
Each series of Securities Warrants will be issued under a separate warrant
agreement (a "Securities Warrant Agreement") to be entered into between the
Company and a bank or trust company, as warrant agent (the "Securities Warrant
Agent"), all as set forth in the Prospectus Supplement relating to the
particular issue of Securities Warrants. The Securities Warrant Agent will act
solely as an agent of the Company in connection with the Securities Warrants and
will not assume any obligation or relationship of agency or trust for or with
any holders of Securities Warrants or beneficial owners of Securities Warrants.
The following summary of certain provisions of the Securities Warrants does not
purport to be complete and is subject to, and is qualified in its entirety by
reference to, all provisions of the Securities Warrant Agreements.
Reference is made to the Prospectus Supplement relating to the particular
issue of Securities Warrants offered thereby for the terms of such Securities
Warrants, including, where applicable: (i) the designation, aggregate principal
amount, currencies, denominations, and terms of the series of Debt Securities
purchasable upon exercise of Debt Warrants and the price at which such Debt
Securities may be purchased upon such exercise; (ii) the number of shares of
Common Stock purchasable upon the exercise of Common Stock Warrants and the
price at which such number of shares of Common Stock may be purchased upon such
exercise; (iii) the date on which the right to exercise such Securities Warrants
shall commence and the date on which such right shall expire (the "Expiration
Date"); (iv) United States Federal income tax consequences applicable to such
Securities Warrants; and (v) any
19
<PAGE>
other terms of such Securities Warrants. Common Stock Warrants will be offered
and exercisable for U.S. dollars only. Securities Warrants will be issued in
registered form only. The exercise price for Securities Warrants will be subject
to adjustment in accordance with the applicable Prospectus Supplement.
Each Securities Warrant will entitle the holder thereof to purchase such
principal amount of Debt Securities or such number of shares of Common Stock at
such exercise price as shall in each case be set forth in, or calculable from,
the Prospectus Supplement relating to the Securities Warrants, which exercise
price may be subject to adjustment upon the occurrence of certain events as set
forth in such Prospectus Supplement. After the close of business on the
Expiration Date (or such later date to which such Expiration Date may be
extended by the Company), unexercised Securities Warrants will become void. The
place or places where, and the manner in which, Securities Warrants may be
exercised shall be specified in the Prospectus Supplement relating to such
Securities Warrants.
Prior to the exercise of any Securities Warrants to purchase Debt Securities
or Common Stock, holders of such Securities Warrants will not have any of the
rights of holders of the Debt Securities or Common Stock, as the case may be,
purchasable upon such exercise, including the right to receive payments of
principal of, premium, if any, or interest, if any, in the Debt Securities
purchasable upon such exercise or to enforce covenants in the applicable
Indenture, or to receive payments of dividends, if any, on the Common Stock
purchasable upon such exercise, or to exercise any applicable right to vote.
PLAN OF DISTRIBUTION
The Company may sell the Offered Securities to which this Prospectus relates
to or for resale to the public through one or more underwriters, acting alone or
in underwriting syndicates led by one or more managing underwriters, and also
may sell such Offered Securities directly to other purchasers or dealers or
through agents.
The distribution of Offered Securities may be effected from time to time in
one or more transactions at a fixed price or prices, which may be changed from
time to time, at market prices prevailing at the time of sale, at prices related
to such prevailing market prices, or at negotiated prices. Each Prospectus
Supplement will describe the method of distribution of the Offered Securities.
In connection with the sale of Offered Securities, such underwriters,
dealers, and agents may receive compensation from the Company, or from
purchasers of Offered Securities for whom they may act as agents, in the form of
discounts, concessions, or commissions. Underwriters, dealers, and agents that
participate in the distribution of Offered Securities and, in certain cases,
direct purchasers from the Company, may be deemed to be "underwriters" and any
discounts or commissions received by them and any profit on the resale of
Offered Securities by them may be deemed to be underwriting discounts and
commissions under the Securities Act. Any such underwriters, dealers, or agents
will be identified and any such compensation will be described in the applicable
Prospectus Supplement.
Under agreements which may be entered into by the Company, underwriters,
dealers, and agents who participate in the distribution of Offered Securities
may be entitled to indemnification by the Company against certain liabilities,
including liabilities under the Securities Act. The place and time of delivery
for Offered Debt Securities in respect of which this Prospectus is delivered
will be set forth in the applicable Prospectus Supplement.
20
<PAGE>
LEGAL MATTERS
The validity of the Offered Securities will be passed upon for the Company
by Sirote & Permutt, P.C., Birmingham, Alabama, and for any underwriters by
counsel to be specified in the accompanying Prospectus Supplement. As of July
11, 1995, lawyers of Sirote & Permutt, P.C. who have participated in the
preparation of the Registration Statement of which this Prospectus is a part
and/or serve as members of the Board of Directors of the Company beneficially
own 49,915 shares of Common Stock of the Company individually or in various
fiduciary capacities. Although other members of the firm may also own securities
of the Company, no inquiry as to such ownership has been made. As to matters of
New York law, Sirote & Permutt, P.C. will rely on the opinion of Simpson Thacher
& Bartlett (a partnership which includes professional corporations), New York,
New York.
INDEPENDENT PUBLIC ACCOUNTANTS
The consolidated financial statements of the Company as of July 2, 1994 and
July 3, 1993 and for each of the three years in the period ended July 2, 1994,
incorporated by reference in the Company's Annual Report on Form 10-K for the
year ended July 2, 1994 have been audited by Arthur Andersen LLP, independent
public accountants as indicated in their report with respect thereto and
incorporated herein by reference. Such consolidated financial statements are
incorporated herein by reference in reliance upon the authority of said firm as
experts in giving said reports.
21
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION:
The estimated expenses in connection with the distribution are as follows:
<TABLE>
<CAPTION>
AMOUNT TO BE PAID
-----------------
<S> <C>
Securities and Exchange Commission Registration Fee........................ $ 258,625
Legal Fees and Expenses.................................................... 50,000
Accounting Fees and Expenses............................................... 30,000
Printing and Engraving..................................................... 20,000
Trustee Fees............................................................... 30,000
Miscellaneous.............................................................. 10,000
-----------------
TOTAL.............................................................. $ 368,625
-----------------
-----------------
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Sections 10-2B-8.51 and 10-2B-8.56, of the Alabama Business Corporation Act
(the "ABCA") allow indemnification by a corporation, under certain
circumstances, of any person who was or is a party (or is threatened to be made
a party) to any threatened, pending or completed claim, suit or proceeding,
whether civil, criminal, administrative or investigative, by reason of the fact
that he is or was a director, officer, employee or agent of the corporation, or
is or was serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise; provided, that such person acted in
good faith and in a manner he reasonably believed to be, in the case of conduct
in his or her official capacity with the corporation, in its best interests,
and, in all other cases, in or not opposed to its best interests and, with
respect to any criminal action or proceeding, had no reasonable cause to believe
his conduct was unlawful. A corporation also has the power under Section
10-2B-8.57 of the ABCA to purchase and maintain indemnity insurance against such
threatened, pending or completed claim, action, suit or proceeding on behalf of
any person who is or was a director, officer, employee or agent of the
corporation, or who is or was serving at the request of the corporation as a
director, officer, partner, trustee, employee or agent of another corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise.
Article IX of the Bylaws of Bruno's, Inc. provides that the Company may, at
the discretion of the Board of Directors, indemnify any director, officer or
employee of the Company against expenses reasonably incurred by him in
connection with any action, suit or proceeding to which he is a party by reason
of his being or having been a director, officer or employee of the Company or,
at the Company's request, his being or having been a director, officer or
employee of another corporation provided such director, officer or employee
acted in good faith in what he reasonably believed to be the best interests of
the Company, and in addition, in any criminal action or proceeding, had no
reasonable cause to believe that his conduct was unlawful. No indemnification
shall be made to such person who is adjudged to be liable for negligence or
misconduct except to the extent the court determines such person is fairly and
reasonably entitled to indemnity.
The Registrant maintains officers' and directors' insurance covering certain
liabilities that may be incurred by officers and directors in the performance of
their duties.
II-1
<PAGE>
ITEM 16. EXHIBITS
Set forth below is a list of the exhibits included as part of this
Registration Statement:
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ------- ------------------------------------------------------------------------------------
<C> <S>
*1 Form of Underwriting Agreement between the Company and the Underwriters.
2 Agreement and Plan of Merger dated as of April 20, 1995 between Crimson Acquisition
Corp. and Bruno's, Inc., as amended on May 18, 1995 (incorporated by reference to
Exhibit 10.1 to the Current Report on Form 8-K dated April 27, 1995 and Exhibit
10.1 to the Current Report on Form 8-KA dated May 30, 1995).
4.1 Form of Indenture with respect to the Senior Debt Securities.
4.2 Form of Indenture with respect to the Subordinated Debt Securities.
*4.3 Form of Warrant Agreement for Debt Securities.
*4.4 Form of Warrant Certificate for Debt Securities.
*4.5 Form of Warrant Agreement for Common Stock.
*4.6 Form of Warrant Certificate for Common Stock.
**5.1 Opinion of Sirote & Permutt, P.C.
5.2 Opinion of Simpson Thacher & Bartlett.
12 Computation of Earnings to Fixed Charges.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Sirote & Permutt, P.C. (included in Exhibit 5.1).
23.3 Consent of Simpson Thacher & Bartlett (included in Exhibit 5.2).
24 Powers of Attorney (included in the signature pages to this Registration Statement)
25.1 Form T-1 (Statement of Eligibility of Senior Debt Trustee).
25.2 Form T-1 (Statement of Eligibility of Subordinated Debt Trustee).
</TABLE>
- ------------
* To be filed by a Current Report on Form 8-K.
** Filed herewith.
ITEM 17. UNDERTAKINGS
The 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;
(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; and
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement;
provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if
the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed by the registrant
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of
1934 that are incorporated by reference in the Registration Statement.
II-2
<PAGE>
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, 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.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Company's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities and Exchange
Act of 1934) that is incorporated by reference in the registration statement
shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, 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 Securities Act
of 1933 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 thereof 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 Securities Act of 1933 and will be
governed by the final adjudication of such issue.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
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 Amendment No. 1 to
the Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Birmingham, State of Alabama, on this
24th day of July 1995.
BRUNO'S, INC.
By /s/ RONALD G. BRUNO
...................................
Ronald G. Bruno
Chief Executive Officer and
Chairman of the Board
II-4
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears
below constitutes and appoints Ronald G. Bruno and Glenn J. Griffin, and each of
them, his true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for such person and in such person's name,
place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Registration Statement, and to
file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents 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 and to all intents and purposes as such person might or could
do in person, hereby ratifying and confirming all that said attorneys-in-fact
and agents, or their substitute or substitutes, may lawfully do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Amendment
No. 1 to the Registration Statement has been signed by the following persons in
the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------------- ------------------------------------- -------------
<S> <C> <C>
..................................... Chairman Emeritus of the Board of
Joseph S. Bruno Directors
/s/ RONALD G. BRUNO Chairman of the Board of Directors July 24, 1995
..................................... and Chief Executive Officer
Ronald G. Bruno (Principal Executive Officer)
PAUL F. GARRISON* President, Chief Operating Officer July 24, 1995
..................................... and Director
Paul F. Garrison
GLENN J. GRIFFIN* Executive Vice President, Chief July 24, 1995
..................................... Financial Officer, Treasurer,
Glenn J. Griffin Assistant Secretary and Director
(Principal Financial and Accounting
Officer)
KENNETH J. BRUNO* Executive Vice President and Director July 24, 1995
.....................................
Kenneth J. Bruno
..................................... Director
Judy M. Merritt
RICHARD COHN* Director July 24, 1995
.....................................
Richard Cohn
BENNY M. LA RUSSA, JR.* Director July 24, 1995
.....................................
Benny M. La Russa, Jr.
J. MASON DAVIS JR.* Director July 24, 1995
.....................................
J. Mason Davis Jr.
..................................... Director
Bart Starr
*By: /s/ RONALD G. BRUNO
................................
Ronald G. Bruno
Attorney-in-Fact
</TABLE>
II-5
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- -------- -----------------------------------------------------------------------------------
<C> <S>
*1 Form of Underwriting Agreement between the Company and the Underwriters.
2 Agreement and Plan of Merger dated as of April 20, 1995 between Crimson Acquisition
Corp. and Bruno's, Inc., as amended on May 18, 1995 (incorporated by reference to
Exhibit 10.1 to the Current Report on Form 8-K dated April 27, 1995 and Exhibit
10.1 to the Current Report on Form 8-KA dated May 30, 1995).
4.1 Form of Indenture with respect to the Senior Debt Securities.
4.2 Form of Indenture with respect to the Subordinated Debt Securities.
*4.3 Form of Warrant Agreement for Debt Securities.
*4.4 Form of Warrant Certificate for Debt Securities.
*4.5 Form of Warrant Agreement for Common Stock.
*4.6 Form of Warrant Certificate for Common Stock.
**5.1 Opinion of Sirote & Permutt, P.C.
5.2 Opinion of Simpson Thacher & Bartlett.
12 Computation of Earnings to Fixed Charges.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Sirote & Permutt, P.C. (included in Exhibit 5.1).
23.3 Consent of Simpson Thacher & Bartlett (included in Exhibit 5.2).
24 Powers of Attorney (included in the signature pages to this Registration Statement)
25.1 Form T-1 (Statement of Eligibility of Senior Debt Trustee).
25.2 Form T-1 (Statement of Eligibility of Subordinated Debt Trustee).
</TABLE>
- ------------
* To be filed by a Current Report on Form 8-K.
** Filed herewith.
EXHIBIT 5.1
S I R O T E
&
P E R M U T T
[Letterhead]
July 24, 1995
Bruno's, Inc.
800 Lakeshore Parkway
Birmingham, AL 35211
Dear Sirs:
We have acted as counsel to Bruno's, Inc., an Alabama
corporation (the "Corporation"), in connection with the
Corporation's Registration Statement on Form S-3 (File No. 33-
60161) (the "Registration Statement") filed by the Corporation
under the Securities Act of 1933, as amended, relating to (i)
debt securities, which may be either senior (the "Senior
Securities") or subordinated (the "Subordinated Securities")
(collectively, the "Debt Securities"), (ii) warrants to purchase
the Debt Securities (the "Debt Warrants"), (iii) shares of common
stock of the Corporation, par value $0.01 per share (the "Common
Stock"), (iv) warrants to purchase shares of Common Stock (the
"Common Stock Warrants"), (v) Debt Securities and Common Stock
which may be issued upon exercise of Securities Warrants (as
defined below) and (vi) such indeterminate amount of Offered
Securities (as defined below) as may be issued in exchange for or
upon conversion of, as the case may be, the Offered Securities,
with an aggregate initial public offering price of up to
$750,000,000 or the equivalent thereof in one or more foreign
currencies or composite currencies. The Corporation will not
receive separate consideration for any Offered Securities that
are issued in exchange for or upon conversion of, as the case may
be, Offered Securities, or upon exercise of Securities Warrants.
The Debt Warrants and Common Stock Warrants are hereinafter
referred to collectively as the "Securities Warrants," and the
Debt Securities, Common Stock and Securities Warrants are
hereinafter referred to collectively as the "Offered Securities."
The Offered Securities will be sold or delivered from time
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to time as set forth in the Registration Statement, any amendment
thereto, the prospectus contained therein (the "Prospectus") and
supplements to the Prospectus (the "Prospectus Supplements").
The Senior Debt Securities will be issued under an Indenture (the
"Senior Debt Indenture") between the Company and First Trust of
New York, as Trustee (the "Senior Debt Trustee"). The
Subordinated Debt Securities will be issued under an Indenture
(the "Subordinated Debt Indenture," together with the Senior Debt
Indenture, the "Indentures") between the Company and Marine
Midland Bank, as Trustee (the "Subordinated Debt Trustee;"
together with the Senior Debt Trustee, the "Trustees"). The
Indentures are included as exhibits to the Registration
Statement.
We have examined the Registration Statement and the form of
each of the Indentures and the Securities. We have also
examined, and have relied as to matters of fact upon, originals
or copies, certified or otherwise identified to our satisfaction,
of such corporate records, agreements, documents and other
instruments and such certificates or comparable documents of
public officials and of officers and representatives of the
Corporation, and have made such other and further investigations,
as we have deemed relevant and necessary as a basis for the
opinions hereinafter set forth.
In such examination, we have assumed the genuineness of all
signatures, the legal capacity of natural persons, the
authenticity of all documents submitted to us as originals, the
conformity to the original documents of all documents submitted
to us as certified or photostatic copies, and the authenticity of
the originals of such latter documents. In addition, we have
assumed that (i) a Prospectus Supplement will have been prepared
and filed with the Commission describing the Offered Securities offered
thereby; (ii) all Offered Securities issued will be issued and sold in
compliance with applicable federal and state securities laws and
solely in the manner stated in the Registration Statement and the
appropriate Prospectus Supplement; (iii) a definitive purchase,
underwriting or similar agreement and, to the extent applicable, a debt
warrant agreement and a common stock warrant agreement, with respect to any
Offered Securities, will have been duly authorized and validly executed and
delivered by the Corporation and the other parties thereto; (iv)
the Common Stock, when issued, will be authorized and issued in
compliance with Section 234 of the Alabama Constitution, will be
authorized pursuant to the articles of incorporation of the
Corporation in accordance with Section 234 of the Alabama
Constitution and Section 10-2B-6.01 of the 1975 Code of Alabama
(the "Code"), and the issuance thereof and the consideration to
be received therefor, will have been authorized, determined and
approved by the Board of Directors of the Corporation pursuant to
Section 10-2B-6.21 of the Code; (v) the Debt Securities, when
issued, will be authorized and issued in compliance with Section
234 of the Alabama Constitution, will have been authorized and
approved by the Board of Directors of the Corporation; (vi) the
Securities Warrants, when issued, will be duly authorized by the
Board of Directors of the Corporation and, to the extent applicable,
will be issued in accordance with Section 10-2B-6.24 of the Code;
and (vii) any Debt Securities or Common Stock issuable upon
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conversion, exchange or exercise of any Securities Warrants being offered
will be duly authorized, created and, if appropriate, reserved for
issuance upon such conversion, exchange or exercise and will satisfy
all conditions set forth in clause (iv) and (v) of this paragraph.
Based on the foregoing, and subject to the qualifications
and limitations stated herein, we are of the opinion that:
1. With respect to the Debt Securities, when (i) the
Indentures have been duly authorized and validly executed and
delivered by the Corporation to the Trustees, (ii) the Indentures
have been duly qualified under the Trust Indenture Act of 1939,
as amended, (iii) the Registration Statement has become effective
under the Securities Act of 1933, as amended (the "Act"), (iv)
the Board of Directors of the Company or, to the extent permitted
by Alabama law, a duly constituted and acting committee thereof
(such Board of Directors or committee being hereinafter referred
to as the "Board") has taken all necessary corporate action to
approve the issuance and terms of such Debt Securities, the terms
of the Offering thereof and related matters, and (v) the Debt
Securities have been duly executed and authenticated in accordance with
the terms of the Indentures and delivered and sold as contemplated by
the Registration Statement against receipt of adequate consideration
therefor, the Debt Securities will constitute valid and legally
binding obligations of the Corporation enforceable against the Corporation
in accordance with their terms.
2. The shares of Common Stock have been duly authorized
and (i) when the Registration Statement has become effective
under the Act and (ii) when the shares of Common Stock in the
form filed as an exhibit to the Registration Statement have been
duly executed, countersigned and delivered and sold by the
Corporation in the transactions contemplated by the Registration
Statement and the consideration therefor has been received by the
Corporation, such shares of Common Stock will be validly issued,
fully paid and nonassessable.
3. The Securities Warrants have been duly authorized and,
(i) when the Registration Statement has become effective under
the Act, (ii) upon the execution and delivery of a debt warrant
agreement or common stock warrant agreement, as the case may be,
relating to such Securities Warrants in the form to be filed as an
exhibit to the Registration Statement through the filing of a
Current Report on Form 8-K, and (iii) when such Securities Warrants
have been duly executed, countersigned, delivered and sold in the
applicable form to be filed as an exhibit to the Registration Statement
through the filing of a Current Report on Form 8-K and as contemplated
by the Registration Statement against receipt of adequate consideration
therefor, such Securities Warrants will constitute valid and legally
binding obligations of the Corporation enforceable against the
Corporation in accordance with their terms.
In rendering the opinions expressed herein, we have assumed
without investigation that, with respect to each offer, issuance,
sale, and delivery by the Corporation of Offered Securities and
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each purchase by the purchasers thereof, (a) at the time thereof
and at all times subsequent thereto, such offer, issuance, sale,
delivery, and purchase did not violate, result in a breach of, or
conflict with any law, rule, regulation, order, judgment, or
decree, in each case whether then or subsequently in effect; (b)
at the time thereof and at all times subsequent thereto, the
persons authorizing each such offer, issuance, sale, delivery or
purchase, did not violate any fiduciary or other duty owed by
them; (c) no event has taken place subsequent to any such offer,
issuance, sale, delivery or purchase, or will take place which
would cause any such offer, issuance, sale, delivery, or
purchase, not to comply with any law, rule, regulation,
order, judgement, decree, or duty, or which would permit the
Corporation or any other party at any time thereafter to
cancel, rescind, or otherwise avoid any such offer, issuance,
sale, delivery or purchase; (d) there was no misrepresentation,
omission, or deceit by the Corporation, or any such other party,
in connection with any such offer, issuance, sale, delivery or
purchase; (e) each offer, issuance, sale, delivery or purchase
is governed by the laws of the State of Alabama; (f) each other
party to such offer, issuance, sale, delivery or purchase,
(i) had the power, authority, and the capacity to consummate
such purchase, (ii) duly authorized such purchase, and each such
transaction, (iii) has duly and validly taken all necessary
corporate or other proceedings of the directors (or a committee
of directors), stockholders, and all other bodies to authorize the
purchase, and (iv) has not violated or breached any term of the
certificate of incorporation, bylaws or other governing documents
by any such purchase.
Our opinion set forth in paragraphs 1 and 3 above are
subject to the effects of bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws
relating to or affecting creditors' rights generally, general
equitable principles (whether considered in a proceeding in
equity or at law) and an implied covenant of good faith, fair
dealing, and conscionability; and we are not rendering any opinion
with respect to any provisions of the Debt Securities and Debt Warrants
dealing with (a) choice of law, (b) severability, (c) exculpation,
(d) indemnification and contribution, (e) arbitration, (f)
restriction of available remedies or attempts to establish a
remedy, and (g) release of unmatured claims.
In accordance with the general polices of this law firm in
rendering legal opinion, we have assumed for the purposes of the
opinions expressed herein that no fraud exists with respect to
any of the matters relevant to the opinions expressed herein,
although we have no reason to believe that there exists any fraud
which would render invalid the opinions expressed below.
We are members of the Bar of the State of Alabama, and
we do not express any opinion concerning any law other than the
law of the State of Alabama and the Federal law of the United
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States. To the extent the opinions herein relate to matters governed
by New York law, we rely on the opinion of Simpson Thacher & Bartlett
dated as of July 18, 1995 and filed as an exhibit to the Registration
Statement.
We hereby consent to the filing of this opinion as an
exhibit to the Registration Statement and to the reference to
this firm appearing under the heading "Legal Opinions" in the
Registration Statement.
Very truly yours,
SIROTE & PERMUTT, P.C.
FOR THE FIRM
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