<PAGE>
As filed with the Securities and Exchange Commission on September 5, 1995
REGISTRATION NO. 33-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
_______________________
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
_______________________
THE GRAND UNION COMPANY
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 22-1518276
(STATE OR OTHER JURISDICTION (I.R.S. EMPLOYER
OF INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
201 WILLOWBROOK BOULEVARD
WAYNE, NEW JERSEY 07470-0966
(ADDRESS, OF PRINCIPAL EXECUTIVE OFFICES, INCLUDING ZIP CODE)
KENNETH R. BAUM
The Grand Union Company
201 Willowbrook Boulevard
Wayne, New Jersey 07470-0966
(201) 890-6000
(NAME AND ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE
NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE)
__________________
Please send copies of all communications to:
WINTHROP G. MINOT, ESQUIRE
Ropes & Gray
One International Place
Boston, Massachusetts 02110
(617) 951-7000
Approximate date of commencement of proposed sale to the public: From time to
time after the effectiveness of the Registration Statement.
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/
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF EACH CLASS AMOUNT TO OFFERING PRICE AGGREGATE OFFERING REGISTRATION
SECURITIES TO BE REGISTERED BE REGISTERED PER SHARE(1) PRICE(1) FEE
- ---------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock -- $1.00 Par Value 3,243,826 Shares $13.50 $43,791,651 $15,101
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12% Senior Notes due September 1, 2004 $178,373 95% $169,454 $100
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<FN>
(1) Estimated solely for the purpose of determining the registration fee in accordance with Rule 457(c) under the Securities Act of
1933.
</TABLE>
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 Securities and Exchange Commission, acting
pursuant to said Section 8(a), may determine.
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<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.
SUBJECT TO COMPLETION
PRELIMINARY PROSPECTUS DATED SEPTEMBER 5, 1995
PROSPECTUS
THE GRAND UNION COMPANY
COMMON STOCK
3,243,826 SHARES
12% SENIOR NOTES DUE SEPTEMBER 2004
$178,373 PRINCIPAL AMOUNT
_______________
This Prospectus covers the resale by certain holders (the "Selling
Securityholders") of up to 3,243,826 shares of Common Stock (the "Common Stock")
and $178,373 principal amount of 12% Senior Notes due September 1, 2004 (the
"Senior Notes" and, collectively with the Common Stock offered hereby, the
"Offered Securities") of The Grand Union Company (the "Company" or "Grand
Union"). Grand Union will not receive any proceeds from the sales of the Offered
Securities by the Selling Securityholders.
The Senior Notes will mature on September 1, 2004 and accrue interest
beginning September 1, 1995 at the rate of 12% per annum, payable semi-annually
on March 1 and September 1, beginning March 1, 1996. The Senior Notes are not
redeemable at the option of the Company prior to September 1, 2000, except that
up to 33 1/3% of the principal amount of Senior Notes may be redeemed upon the
payment of a premium ranging from 103% to 106% of the principal amount thereof
plus accrued and unpaid interest to the redemption date with the proceeds of one
or more issuances of equity securities prior to September 1, 1998. The Senior
Notes are redeemable, in whole or in part, at the option of Grand Union, at any
time, upon not less than 30 nor more than 60 days' notice, on or after September
1, 2000 at redemption prices commencing at 104% of the principal amount thereof
plus accrued and unpaid interest to the redemption date on September 1, 2000
and reducing to the principal amount thereof commencing September 1, 2003 plus
accrued and unpaid interest to the redemption date.
SEE "RISK FACTORS" FOR A DESCRIPTION OF CERTAIN RISKS WHICH SHOULD BE
CONSIDERED IN CONNECTION WITH AN INVESTMENT IN THE COMMON STOCK OR SENIOR
NOTES. _______________
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURI-
TIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED
UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTA-
TION TO THE CONTRARY IS A CRIMINAL OFFENSE.
____________________
The Selling Securityholders named herein directly, through agents to be
designated from time to time, or through dealers or underwriters also to be
designated, may sell the Offered Securities from time to time in one or more
transactions, on the New York Stock Exchange (in the case of the Senior Notes),
on the National Market System of the NASD (in the case of the Common Stock), and
otherwise in the over-the-counter market and in negotiated transactions, on
terms to be determined at the time of sale. To the extent required, the specific
Offered Securities to be sold, the names of the Selling Securityholders, the
respective purchase prices and public offering prices, the names of any such
agent, dealer or underwriter, and any applicable commissions or discounts with
respect to a particular offer will be set forth in any accompanying Prospectus
Supplement or, if appropriate, a post-effective amendment to the Registration
Statement of which this Prospectus is a part. See "Plan of Distribution." By
agreement, the Company will pay all the expenses of the registration of the
Offered Securities by holders thereof other than underwriting discounts and
commissions and transfer taxes, if any. Such expenses to be borne by the
Company are estimated at $56,000.
The Selling Securityholders and any broker-dealers, agents or underwriters
that participate with the Selling Securityholders in the distribution of the
Offered Securities may be deemed to be "underwriters" within the meaning of the
Securities Act of 1933, as amended (the "1933 Act"), and any commissions
received by them and any profit on the resale of the Offered Securities
purchased by them may be deemed underwriting commissions or discounts under the
1933 Act.
_______________
The date of this Prospectus is September 5, 1995.
<PAGE>
AVAILABLE INFORMATION
Grand Union is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "1934 Act"), and, in accordance therewith,
files periodic reports and other information with the Securities and Exchange
Commission (the "Commission").
Grand Union has filed with the Commission a Registration Statement (of
which this Prospectus is a part) under the 1933 Act with respect to the Offered
Securities. This Prospectus does not contain all of the information set forth
in the Registration Statement. Certain portions of the Registration Statement
have been omitted as permitted by the rules and regulations of the Commission.
Statements made in this Prospectus as to the contents of any contract,
agreement, or other document are not necessarily complete. With respect to each
such contract, agreement or document filed as an exhibit to the Registration
Statement, reference is hereby made to such exhibit for a more complete
description of the matter involved and each such statement shall be deemed
qualified in its entirety by such reference.
The Registration Statement, the exhibits and schedules thereto, and the
reports and other information filed by Grand Union with the Commission may be
inspected at the public reference facilities maintained by the Commission at
Room 1024, Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549 and
at the regional offices of the Commission located at 7 World Trade Center, 13th
Floor, New York, New York 10048; and Northwestern Atrium Center, 500 West
Madison Street, Suite 1400, Chicago, Illinois 60661-2511. Copies of all or any
part of such materials also may be obtained from the Public Reference Section of
the Commission at 450 Fifth Street, N.W., Washington, D.C. 20549 at prescribed
rates.
The Common Stock is traded on the National Association of Securities
Dealers ("NASD") National Market System under the symbol GUCO. Reports and
other information concerning the Company may be inspected at the National
Association of Securities Dealers, Inc., 1725 K Street, N.W., Washington, D.C.
20006. The Company plans to list the Senior Notes on the New York Stock
Exchange, and has applied to have such listing become effective prior to or
simultaneously with the Registration Statement of which this Prospectus is a
part.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents previously or simultaneously filed with the
Securities and Exchange Commission (the "Commission") by the Company are
incorporated herein by reference and made a part hereof:
(a) The Company's Annual Report on Form 10-K for the fiscal year ended
April 1, 1995.
(b) The Company's Quarterly Report on Form 10-Q for the quarter ended July
22, 1995.
(c) The description of the Company's Common Stock, contained in the
Company's Registration Statement on Form 8-A, including any amendment
or report filed for the purpose of updating such description.
(d) The description of the Company's Senior Notes, contained in the
Company's Registration Statement on Form 8-A, including any amendment
or report filed for the purpose of updating such description.
All documents subsequently filed by the Registrant pursuant to Section 13(a),
Section 13(c), Section 14 and Section 15(d) of the Exchange Act after the date
of this Prospectus prior to the termination of the offering shall be deemed
incorporated herein by reference from the date of filing of such documents.
The Company will provide without charge to each person to whom this
Prospectus is delivered, upon the written or oral request of such person, a copy
of any or all of the documents that have been incorporated by reference in this
Prospectus, other than exhibits to such documents. Such documents may be
obtained by writing to The Grand Union
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<PAGE>
Company, Investor Relations, 201 Willowbrook Boulevard, Wayne, New Jersey
07470-0966, or by calling (201) 890-6000.
No person has been authorized to give any information or to make any
representations other than those contained or incorporated by reference in this
Prospectus in connection with the offer contained in this Prospectus, and, if
given or made, such information or representations must not be relied upon as
having been authorized by the Company. This Prospectus relates solely to the
Offered Securities and it may not be used or relied on in connection with any
other offer or sale of securities of the Company. Neither the delivery of this
Prospectus nor any sale made hereunder shall, under any circumstances, create
any implication that there has been no change in the affairs of the Company
since the date hereof. This Prospectus does not constitute an offer or
solicitation in any state in which, or to any person to whom, it is unlawful to
make such offer or solicitation.
THE GRAND UNION COMPANY
Grand Union is a leading food retailer in the northeastern United States. Grand
Union has been engaged in the food retailing business for 120 years, making it
one of the oldest major retail food companies in the United States. Grand Union
currently operates 231 supermarkets and food markets under the "Grand Union"
name in six states.
Grand Union is incorporated under the laws of the State of Delaware. Its
principal executive offices are located at 201 Willowbrook Boulevard, Wayne, New
Jersey 07470-0966 and its telephone number is (201) 890-6000.
RISK FACTORS
The following risk factors should be carefully considered together with the
other information contained in this Prospectus in evaluating an investment in
the Company and its business before deciding to purchase either the Common Stock
or the Senior Notes offered hereby.
RECENT EMERGENCE FROM BANKRUPTCY
The Company filed a voluntary petition for reorganization under Chapter 11
of the Bankruptcy Code on January 25, 1995 to effectuate the terms of a capital
restructuring negotiated with the Company's major creditor groups. The
Company's Chapter 11 Plan was confirmed by an order of the bankruptcy court
dated May 31, 1995, and became effective on June 15, 1995. At the time of the
Company's bankruptcy filing, cash flow from operations was not sufficient to
fund the Company's debt service requirements and its capital expenditure
program. For the terms of this restructuring, see the Company's most recent
annual report incorporated herein by reference.
As a result of the adoption of "fresh start" reporting for the periods
subsequent to June 15, 1995, in accordance with the American Institute of
Certified Public Accountants Statement of Position 90-7, "Financial Reporting by
Entities in Reorganization Under the Bankruptcy Code," the carrying values of
the Company's assets and liabilities were adjusted to fair value, and the
Company recorded an intangible asset of approximately $526 million, which
represented the excess of a determined reorganization value over the fair value
of the Company's assets. This intangible asset is being amortized over five
years and will decrease net income by the amount amortized.
HIGHLY LEVERAGED POSITION
Even after its restructuring, the Company continues to be highly leveraged.
The Company's annual interest expense is expected to be approximately $100
million. There can be no assurance that the cash flow of the Company, after
giving effect to operating requirements, will be adequate to fund fully the
payment of interest when due and all capital expenditures contemplated in the
Company's business plan.
- 3 -
<PAGE>
The ability of the Company to service its indebtedness and to repay or
refinance its indebtedness at maturity may depend on its ability to raise
sufficient new equity capital, or, possibly, on its ability to sell selected
assets or the Company as a whole. There can be no assurance that such financing
will be obtained, and that, even if obtained, will be on favorable terms, or
that the Company will be able to be sold in whole or in part on terms that will
yield sufficient proceeds to pay off the Company's obligations.
There can be no assurance that the Company will be able to comply with the
financial performance tests contained in the terms of certain of the Company's
indebtedness. Failure to meet such financial tests or other covenants would
result in a default thereunder. If any such default were not remedied within the
applicable grace period, lenders would be entitled to declare the amounts
outstanding thereunder due and payable and to accelerate the payment of all such
amounts, and certain lenders would be entitled to foreclose upon all of the
tangible and intangible assets (including leases) of the Company and its
subsidiaries.
The degree to which the Company is leveraged could have important
consequences to holders of the Common Stock and Senior Notes, including the
following: (i) the Company's ability to obtain additional financing in the
future for working capital, capital expenditures, acquisitions, general
corporate purposes or other purposes may be impaired; (ii) a substantial portion
of the Company's cash flow from operations must be dedicated to the payment of
the principal of and interest on its existing indebtedness, which materially
decreases the funds available to the Company to finance its working capital,
capital expenditures and general business operations; (iii) the terms of the
Company's indebtedness impose significant financial and operating restrictions
which, if violated, could permit the Company's creditors to accelerate payments
thereunder; (iv) the Company is more highly leveraged than its principal
competitors, which may place the Company at a competitive disadvantage; and (v)
the Company's high degree of leverage may make it vulnerable to economic
downturns and may limit its ability to withstand competitive pressures and
adverse changes in government regulation and to capitalize on significant
business opportunities.
There can be no assurance that the Company's performance, the Company's
ability to repay the Senior Notes and the value of the Common Stock will not be
adversely affected by one or a combination of the above or other factors.
RECENT OPERATING PERFORMANCE
Since fiscal 1994, the Company's EBITDA and EBITDA as a percentage of sales
have decreased to $135.6 million and 5.7% for fiscal 1995, from $180.1 million
and 7.3% for fiscal 1994; in addition, for the first fiscal quarter of fiscal
1996 (the sixteen-week period ended July 22, 1995), EBITDA and EBITDA as a
percentage of sales decreased to $44.3 million and 6.1%, from $60.1 million and
8.0% for the corresponding period of fiscal 1995. For these purposes, EBITDA is
defined as earnings before LIFO provision, depreciation and amortization,
amortization of excess reorganization value, reorganization items, interest
expense, income taxes and extraordinary gain on debt discharge. The Company
believes that EBITDA and EBITDA as a percentage of sales are preferred
indicators of the profitability of the Company's operations. Also, in both
fiscal 1995 and fiscal 1994, the Company experienced significant decreases in
same-store sales, although the first quarter of 1996 showed a very small
increase compared with the corresponding period of fiscal 1995.
There can be no assurance that the Company will be able to generate
sufficient EBITDA to meet its requirements for working capital, capital
expenditures and, given its highly-leveraged capital structure, debt service.
In addition, the Company expects to report operating losses in the future,
principally as a result of the amortization of intangibles discussed above. The
reporting of net losses could negatively effect the prices at which the
Company's securities trade.
- 4 -
<PAGE>
COMPETITION
The food retailing business is highly competitive. The Company competes
with numerous national, regional and local supermarket chains, particularly A&P,
Price Chopper, Hannaford Brothers, ShopRite, Pathmark, Foodtown and Stop & Shop.
The Company also competes with convenience stores, stores owned and operated or
otherwise affiliated with large food wholesalers, unaffiliated independent food
stores, warehouse/merchandise clubs, discount drugstore chains and discount
general merchandise chains. Some of the Company's competitors have greater
financial resources than the Company and could use those resources to take steps
which would adversely affect the Company's competitive position. In order to
maintain its competitive position in the industry, the Company will be required
to upgrade existing stores, open new and replacement stores, keep abreast of
technology and continue to pursue a competitive pricing structure, all of which
may require funds that exceed the Company's resources.
NECESSITY FOR, AND LIMITATIONS ON, CAPITAL EXPENDITURES
The Company's future performance will be heavily dependent upon its ability
to make major capital expenditures over the next several years. Such capital
expenditures are necessary in order for the Company to maintain, as well as
improve, its competitive position in critical markets.
In recent years the Company has been unable to make desired amounts of
capital expenditures due to the significant amount of debt in its capital
structure and its operating results. In addition, the financial resources
provided for after the consummation of the Chapter 11 Plan may not be sufficient
to fund the capital expenditures which are necessary to enable the Company to
achieve a level of profitability which will allow the Company to service its
debt, including the Senior Notes. Under the terms of the Company's indebtedness,
restrictive financial and operating covenants and prohibitions limit the
Company's ability to make capital expenditures. Failure to make necessary
capital expenditures could have an adverse effect on the Company's ability to
remain competitive and on profitability.
SALES BY INSTITUTIONAL INVESTORS
The Common Stock was issued in the Company's reorganization in exchange for
the cancellation of certain high yield debt instruments, which had been held in
significant amounts by institutional investors. The charter and other governing
documents of such institutional investors may require a minimum allocation of
portfolio assets to high yield investments for which the Common Stock would not
qualify and, in any event, the Common Stock may not be deemed to be a desirable
investment for these institutional investors given their desire for current
income. The potential need by these institutional investors to sell their
shares of Common Stock so as to remain within their desired or permitted asset
allocation structures may place adverse pressure on the price of the Common
Stock.
ENVIRONMENTAL REGULATION AND LITIGATION
The Company is subject to extensive regulation under environmental and
occupational health and safety laws and regulations. In addition, the
Comprehensive Environmental Response, Compensation and Liability Act generally
imposes joint and several liability for clean-up and enforcement costs, without
regard to fault on parties allegedly responsible for contaminations at a site.
While the Company believes it has provided adequate reserves for its share of
potential costs associated with the clean-up of hazardous substances at various
sites no assurance can be given that the reserved amounts will be sufficient to
satisfy the Company's obligations.
COLLECTIVE BARGAINING AGREEMENTS
As of August 1, 1995, the Company had approximately 16,000 employees, of
whom approximately 60% were employed on a part-time basis. Approximately 50% of
the Company's employees are covered by collective bargaining agreements
negotiated with fourteen local unions. Approximately 88% of the employees
covered by these collective
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<PAGE>
bargaining agreements are employed in store locations and approximately 12% are
employed in distribution facilities. These contracts expire at various times
through December 1999. The Company considers its labor relations satisfactory.
POTENTIAL ILLIQUIDITY OF SECURITIES
The Common Stock is currently listed on the NASDAQ National Market System,
and the Senior Notes are expected to be listed on the New York Stock Exchange.
However, there can be no assurance that an active public market for the Common
Stock or Senior Notes will develop or continue for the life of the Common Stock
or Senior Notes. Future trading prices of the Common Stock and Senior Notes
will depend on many factors, including, among other things, prevailing interest
rates and general economic conditions. Accordingly, no assurance can be given
as to the price at which any holder may sell the Common Stock or Senior Notes or
whether a liquid market will exist at the time of any given sale.
USE OF PROCEEDS
The Company will not receive any of the proceeds of the Offered Securities
offered hereunder by the Selling Securityholders.
RATIO OF EARNINGS TO FIXED CHARGES
For each of the fiscal years of the Company ending March 30, 1991 through
April 1, 1995 and the 16 weeks ended July 22, 1995, earnings were inadequate to
cover fixed charges. For this purpose, (i) earnings consist of earnings before
income taxes, extraordinary charges, the cumulative effect of accounting change
and fixed charges and (ii) fixed charges consist of total interest expense plus
the estimated interest component of operating leases. The coverage deficiency
was $159.8 million in 1995, $87.6 million in 1994, $261.2 million in 1993, $52.5
million in 1992, $60 million in 1991 and $38.4 million for the 16 weeks ended
July 22, 1995.
SELLING SECURITYHOLDERS
The following table sets forth certain information with respect to the
Selling Securityholders, including the number of shares of Common Stock and/or
the principal amount of Senior Notes beneficially owned by, and being registered
for, each Selling Securityholder's account. Since the Selling Securityholders
may sell all or some of their Offered Securities, no estimate can be made of the
aggregate amount of Common Stock or Senior Notes which would be owned by each
Selling Securityholder upon completion of the offering to which this Prospectus
relates.
None of the Selling Securityholders holds any position or office with, has
been employed by, or otherwise has a material relationship with the Company, or
any of its predecessors or affiliates, other than as stockholders and creditors
of the Company.
<TABLE>
<CAPTION>
NUMBER OF SHARES OF COMMON
SELLING SECURITYHOLDER STOCK BENEFICIALLY OWNED (1)
- ---------------------- ----------------------------
<S> <C>
Putnam Capital Manager Trust -- PCM High Yield Fund 157,742
Putnam Embassy Funds Ltd. Diversified Income Fund 12,371
Putnam Asset Allocation Funds -- Balanced Portfolio 9,986
Putnam High Yield Managed Trust 22,093
Putnam High Yield Trust 1,688,769
Marsh & McLennan Companies, Inc. U.S. Retirement Plan 12,371
Putnam Asset Allocation Funds -- Conservative Portfolio 3,270
Ameritech Pension Trust 15,348
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<PAGE>
Putnam High Yield Advantage Fund 322,554
Putnam High Income Convertible and Bond Fund 23,860
US Bond Trust 94-03 17,674
Putnam Asset Allocation Funds -- Growth Portfolio 4,153
US Bond Trust 93 8,837
Putnam Managed High Yield Trust 40,650
Southern Farm Bureau Annuity Insurance Company 11,488
Putnam Convertible Opportunities and Income Fund 20,000
US Bond Trust 91 4,418
US Bond Trust 92 4,418
Putnam Master Income Trust 57,441
Putnam Premier Income Trust 136,975
Putnam Master Intermediate Income Trust 53,022
Putnam Diversified Income Trust 539,505
Putnam Capital Manager Trust -- PCM Diversified Income 41,976
US Bond Trust 93-11 26,511
Putnam Diversified Income Portfolio/Smith Barney Travelers Series Fund 1,325
Putnam Global Governmental Income Trust 7,069
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<FN>
(1) Does not include any shares which the named stockholder may receive in the future upon exercise of warrants
received under the Chapter 11 Plan.
</TABLE>
<TABLE>
<CAPTION>
PRINCIPAL AMOUNT OF
SELLING SECURITYHOLDER SENIOR NOTES OWNED
- ---------------------- -------------------
<S> <C>
Carolyn T. Haas $11,000
James and Nancy W. Tibbetts $11,000
Evelyn Sanz $5,000
Wilfred Varieur $30,000
Jack E. Sher $11,373
Steven Bagdan $30,000
Lyle and Phyllis Erblich $5,000
Susan Margolin $9,000
Ann C. Baddock $5,000
Thomas R. Tibbetts $11,000
Leopold W. Montanaro and Leonore A. Montanaro $50,000
</TABLE>
PLAN OF DISTRIBUTION
The Offered Securities may be sold from time to time by any of the Selling
Securityholders on the New York Stock Exchange (in the case of the Senior
Notes), on the National Market System of the NASD (in the case of the Common
Stock), in the over-the-counter market, in negotiated transactions, through the
writing of options on the shares of Common Stock, through the pledge of shares
of Common Stock as collateral for margin accounts, or through a combination of
such methods of sale. The Selling Securityholders may from time to time offer
the Offered Securities through underwriters, dealers or agents, who may receive
compensation in the form of discounts and commissions; such compensation, which
may be in excess of ordinary brokerage commissions, may be paid by the Selling
Securityholders and/or the purchasers of Offered Securities for whom such
underwriters, dealers or agents may act. The Selling Securityholders will act
independently of the Company in making decisions with respect to the timing,
manner and size of each sale. The Selling Securityholders and any dealers or
agents that participate in the distribution of Offered Securities may be deemed
to be "underwriters" as defined in the 1933 Act and any profit on the sale of
- 7 -
<PAGE>
Offered Securities by them and any discounts, commissions or concessions
received by any such dealers or agents might be deemed to be underwriting
discounts and commissions under the 1933 Act.
To the extent required, the specific Offered Securities to be sold, the
names of the Selling Securityholders, the respective purchase prices and public
offering prices, the names of any such agent, dealer or underwriter, and any
applicable commissions or discounts with respect to a particular offer will be
set forth in an accompanying Prospectus Supplement or, if appropriate, a post-
effective amendment to the Registration Statement of which this Prospectus is a
part.
The Offered Securities may be sold from time to time in one or more
transactions at a fixed offering price, which may be changed, or at varying
prices determined at the time of sale or at negotiated prices. Pursuant to NASD
regulations, the compensation which may be received by any NASD member which
sells securities for a Selling Securityholder may not exceed 8%.
Pursuant to registration rights agreements executed between the Company and
holders of the Common Stock and Senior Notes, the Company will pay substantially
all the expenses incurred by the Selling Securityholders and the Company
incident to the offering and sale of the Common Stock and Senior Notes to the
public hereunder, but excluding any underwriting discounts, commissions or
transfer taxes. Also pursuant to these agreements, the Company will indemnify
the Selling Securityholders against certain liabilities in connection with the
offering pursuant hereto including liabilities under the 1933 Act.
- 8 -
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF DISTRIBUTION
<TABLE>
<CAPTION>
<S> <C>
SEC registration fee . . . . . . . . . $15,201
Legal fees and expenses* . . . . . . . $20,000
Accounting fees and expenses* . . . . . . $10,000
Miscellaneous* . . . . . . . . . . $10,799
-------
Total Expenses . . . . . . . . . $56,000
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<FN>
* Estimated
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Article Five Section 3 of the Restated Certificate of Incorporation of The
Grand Union Company, requires that the Company indemnify directors and officers
to the maximum extent permitted by Delaware law, and also, upon request, advance
litigation expenses to directors and officers. Article Five Section 4 provides
that no director of the Company shall be liable for any breach of fiduciary
duty, except to the extent that exculpation from liability is not permitted
under the Delaware General Corporation Law.
Section 145 of the Delaware General Corporation Law provides that a corporation
may indemnify any person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (other than an action
by or in the right of the corporation) by reason of the fact that he is or was a
director, officer, employee or agent of the corporation, or is or was serving at
the request of the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise,
against expenses (including attorney's fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. Section 145 further
provides that a corporation similarly may indemnify any such person serving in
any such capacity who was or is a party, or is threatened to be made a party to
any threatened, pending or completed action or suit by or in the right of the
corporation to procure a judgment in its favor, against expenses actually and
reasonably incurred by him in connection with the defense or settlement of such
action or suit, if he acted in good faith and in a manner reasonably believed to
be in or not opposed to the best interests of the corporation, except that no
indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable to the corporation
unless and only to the extent that the Delaware Court of Chancery or such other
court in which such action or suit was brought shall determine upon application
that, despite the adjudication of liability but in view of all the circumstances
of the case, such person is fairly and reasonably entitled to indemnity for such
expenses which the Court of Chancery or such other court shall deem proper.
Section 102(b)(7) of the Delaware General Corporation Law, as amended, permits a
corporation to eliminate or limit the personal liability of a director to the
Corporation and its stockholders for monetary damages for any breach of
fiduciary duty, except for liability (i) for any breach of the director's duty
of loyalty to the Company or its stockholders, (ii) for acts or omissions not in
good faith or which involve intentional misconduct or a knowing violation of
law, or (iii) for any transaction from which the director derived an improper
personal benefit.
For the undertaking with respect to indemnification, see Item 17 herein.
II - 1
<PAGE>
ITEM 16. EXHIBITS
TITLE OF EXHIBIT
2.1 Second Amended Chapter 11 Plan of Reorganization of The Grand
Union Company ("Grand Union"), dated as of April 19, 1995 and
confirmed by the United States Bankruptcy Court, District of
Delaware, on May 31, 1995, incorporated by reference to Exhibit
2.1 to Grand Union's Annual Report on Form 10-K for the fiscal
year ended April 1, 1995 (the "Grand Union 1995 10-K").
4.1 Indenture dated as of June 15, 1995, between Grand Union, as
Issuer and IBJ Schroder Bank & Trust Company, as Trustee for the
12% Senior Notes due September 1, 2004, including form of the 12%
Senior Note due 2004, incorporated by reference to Exhibit No.
4.2 to the Grand Union 1995 10-K.
4.2 Warrant Agreement dated as of June 15, 1995, between Grand Union
and American Stock Transfer & Trust Company, as Warrant Agent for
300,000 Series 1 Warrants and 600,000 Series 2 Warrants,
incorporated by reference to Exhibit No. 4.5 to the Grand Union
1995 10-K.
4.3 Registration Rights Agreement dated as of June 15, 1995, among
Grand Union and Each of the Persons Named in Schedule A thereto
for the New Common Stock, incorporated by reference to Exhibit
No. 4.6 to the Grand Union 1995 10-K.
4.4 Registration Rights Agreement dated as of June 15, 1995, by and
among Grand Union and The Holders Named therein for the
Registrable Notes, incorporated by reference to Exhibit No. 4.7
to the Grand Union 1995 10-K.
5.1 Opinion of Ropes & Gray re legality.
12.1 Statement re computation of ratios.
23.1 Consent of Price Waterhouse LLP.
ITEM 17. UNDERTAKINGS
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement: (i) To
include any prospectus required by Section 10(a)(3) of the Securities
Act of 1933; (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
II - 2
<PAGE>
distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement;
PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (a)(1)(ii) shall 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;
(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.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities 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.
(c) 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 Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Registrant of expenses incurred
or paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
II - 3
<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 registration
statement on Form S-3 to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Wayne, State of New Jersey, on the 5th day of
September, 1995.
THE GRAND UNION COMPANY
By: /s/ Kenneth R. Baum
---------------------
KENNETH R. BAUM
SENIOR VICE PRESIDENT,
CHIEF FINANCIAL OFFICER
AND SECRETARY
II - 4
<PAGE>
POWER OF ATTORNEY
We, the undersigned officers and directors of The Grand Union Company,
hereby severally constitute Joseph J. McCaig, William A. Louttit and David Y.
Ying, and each of them singly, our true and lawful attorneys with full power to
them, and each of them singly, to sign for us and in our names in the capacities
indicated below, the Registration Statement filed herewith and any and all
amendments to said Registration Statement (including post-effective amendments),
and generally to do all such things in our name and behalf in our capacities as
officers and directors to enable The Grand Union Company to comply with the
provisions of the Securities Act of 1933, and all requirements of the Securities
and Exchange Commission, hereby ratifying and confirming our signatures as they
may be signed by our said attorneys, or any of them, to said Registration
Statement and any and all amendments thereto.
Witness our hands and common seal on the date set forth below.
Pursuant to the requirement of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURE CAPACITY IN WHICH SIGNED DATE
- --------- ------------------------ ----
/s/ Joseph J. McCaig Chief Executive Officer, September 5, 1995
- --------------------------- President and Director
JOSEPH J. McCAIG (Principal Executive Officer)
/s/ William A. Louttit Executive Vice President, September 5, 1995
- --------------------------- Chief Operating Officer
WILLIAM A. LOUTTIT and Director
/s/ Kenneth R. Baum Senior Vice President, September 5, 1995
- --------------------------- Chief Financial Officer
KENNETH R. BAUM and Secretary (Principal
Financial Officer and
Principal Accounting Officer)
/s/ Roger E. Stangeland Director September 5, 1995
- ---------------------------
ROGER E. STANGELAND
/s/ Daniel E. Josephs Director September 5, 1995
- ---------------------------
DANIEL E. JOSEPHS
/s/ William G. Kagler Director September 5, 1995
- ---------------------------
WILLIAM G. KAGLER
/s/ Douglas T. McClure, Jr. Director September 5, 1995
- ---------------------------
DOUGLAS T. McCLURE, JR.
/s/ David Y. Ying Director September 5, 1995
- ---------------------------
DAVID Y. YING
II - 5
<PAGE>
EXHIBIT INDEX
NUMBER TITLE OF EXHIBIT PAGE
- ------ ---------------- ----
2.1 Second Amended Chapter 11 Plan of
Reorganization of The Grand Union
Company ("Grand Union"), dated as
of April 19, 1995 and confirmed by
the United States Bankruptcy Court,
District of Delaware, on May 31, 1995,
incorporated by reference to Exhibit
2.1 to Grand Union's Annual Report on
Form 10-K for the fiscal year ended
April 1, 1995 (the "Grand Union 1995 10-K").
4.1 Indenture dated as of June 15, 1995,
between Grand Union, as Issuer and
IBJ Schroder Bank & Trust Company, as
Trustee for the 12% Senior Notes due
September 1, 2004, including form of
the 12% Senior Note due 2004, incorporated
by reference to Exhibit No. 4.2 to the
Grand Union 1995 10-K.
4.2 Warrant Agreement dated as of June 15,
1995, between Grand Union and American
Stock Transfer & Trust Company, as Warrant
Agent for 300,000 Series 1 Warrants and
600,000 Series 2 Warrants, incorporated by
reference to Exhibit No. 4.5 to the Grand
Union 1995 10-K.
4.3 Registration Rights Agreement dated as of
June 15, 1995, among Grand Union and Each
of the Persons Named in Schedule A thereto
for the New Common Stock, incorporated by
reference to Exhibit No. 4.6 to the Grand
Union 1995 10-K.
4.4 Registration Rights Agreement dated as of
June 15, 1995, by and among Grand Union and
The Holders Named therein for the Registrable
Notes, incorporated by reference to Exhibit
No. 4.7 to the Grand Union 1995 10-K.
5.1 Opinion of Ropes & Gray re legality is filed herewith.
12.1 Statement re computation of ratios is filed herewith.
23.1 Consent of Price Waterhouse LLP if filed herewith.
<PAGE>
EXHIBIT 5.1
ROPES & GRAY
One International Place
Boston, Massachusetts 02110-2624
(617) 951-7000
Telecopier: (617) 951-7050
September 5, 1995
The Grand Union Company
201 Willowbrook Boulevard
Wayne, New Jersey 07470-0966
Ladies and Gentlemen:
This opinion is rendered to you in connection with the Registration
Statement on Form S-3 of The Grand Union Company (the "Company") to be filed
with the Securities and Exchange Commission under the Securities Act of 1933, as
amended (the "Registration Statement"), covering the offering and possible
future sale by certain holders of (i) 3,243,826 shares of common stock of the
Company (the "Common Stock") and (ii) $178,373 in aggregate principal amount of
12% Senior Notes due September 1, 2004 of the Company.
We have acted as counsel to the Company in connection with the preparation
and filing of the Registration Statement. For purposes of our opinion, we have
examined and relied upon such documents, records, certificates and other
instruments as we have deemed necessary. We have assumed the genuineness and
authenticity of all documents submitted to us as originals and the conformity to
originals of all documents submitted to us as copies.
We call your attention to the fact that each of the Senior Notes and the
Indenture dated as of June 15, 1995 (the "Indenture") relating to the Senior
Notes provides that it is to be governed by and construed in accordance with the
internal laws of the State of New York. For purposes of rendering the opinions
expressed in paragraph 3 below, we have assumed that laws of the State of
New York are in all respects identical to the laws of The Commonwealth of
Massachusetts.
We express no opinion as to the laws of any jurisdiction other than those
of The Commonwealth of Massachusetts, the General Corporation Law of the State
of Delaware, and the federal laws of the United States of America.
For purposes of this opinion, we have examined and relied upon the
information set forth in the Registration Statement and such other documents
and records that we have deemed necessary.
<PAGE>
Based on and subject to the foregoing, we are of the opinion that:
1. The Company is a corporation duly organized and validly existing under
the laws of the State of Delaware.
2. The shares of Common Stock have been duly authorized and validly
issued and are fully paid and nonassessable.
3. The Senior Notes have been validly authorized, have been duly
executed, authenticated, issued and delivered in accordance with the terms of
the Indenture, and constitute valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms, subject to
(i) bankruptcy, insolvency, moratorium, reorganization and other laws of
general application affecting the rights and remedies of creditors and
(ii) the general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
We understand that this opinion is to be used in connection with the
Company's Registration Statement relating to the Common Stock and the Senior
Notes to be filed with the Securities and Exchange Commission under the
Securities Act of 1933, as amended. We consent to the filing of this opinion
with and as a part of said Registration Statement and the use of our name
therein.
Very truly yours,
/s/ Ropes & Gray
Ropes & Gray
<PAGE>
EXHIBIT 12.1
COMPUTATION OF RATIO OF EARNINGS
AVAILABLE TO COVER FIXED CHARGES
(Dollars in thousands)
<TABLE>
<CAPTION>
THE GRAND UNION COMPANY
------------------------------------------------------------------------
52 Weeks 52 Weeks 53 Weeks 52 Weeks 52 Weeks 16 Weeks
Ended Ended Ended Ended Ended Ended
March 30, March 29, April 13, April 2, April 1, July 22,
1991 1992 1993 1994 1995 1995
----------- ---------- ----------- ---------- ----------- ----------
<S> <C> <C> <C> <C> <C> <C>
Loss before income taxes and extraordinary $ (60,042) $ (52,521) $ (261,223) $ (87,645) $ (159,830) $ (38,359)
charges and cumulative effect of accounting change
Fixed charges:
Interest expenses:
Debt 146,082 142,283 152,384 164,015 157,689 22,573
Capital lease obligations 11,032 12,301 13,191 14,951 19,226 5,591
Amortization of deferred financing fees 7,431 18,018 9,378 4,831 5,101 1,173
Interest factor included in operating leases (1) 12,753 13,677 12,909 10,057 10,633 3,272
---------- --------- ---------- ------- ---------- ---------
Total fixed charges 177,298 186,279 187,862 193,854 192,649 32,609
----------- ---------- ----------- ---------- ----------- ----------
Earnings before fixed charges $ 117,256 $ 133,758 $ (73,361) $ 106,209 $ 32,819 $ (5,750)
---------- --------- ---------- --------- ---------- ---------
---------- --------- ---------- --------- ---------- ---------
Ratio of earnings available to cover fixed charges - - - - - -
---------- --------- ---------- --------- ---------- ---------
---------- --------- ---------- --------- ---------- ---------
Deficiency in earnings available to cover fixed $ 60,042 $ 52,521 $ 261,223 $ 87,645 $ 159,830 $ 38,359
charges ---------- --------- ---------- --------- ---------- ---------
---------- --------- ---------- --------- ---------- ---------
<FN>
(1) The interest component of operating leases expenses is provided as one third operating lease expense because
management believes it to be a reasonable approximation of the interest factor.
</TABLE>
<PAGE>
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement on Form S-3 of our report dated
June 16, 1995 appearing on page F-1 of The Grand Union Company's Annual Report
on Form 10-K for the fiscal year ended April 1, 1995.
/s/ Price Waterhouse LLP
PRICE WATERHOUSE LLP
New York, New York
September 1, 1995
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