<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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SCHEDULE 14D-1/A
TENDER OFFER STATEMENT PURSUANT TO SECTION 14(d)(1)
OF THE SECURITIES EXCHANGE ACT OF 1934
(Amendment No. 1)
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Kash n' Karry Food Stores, Inc.
(Name of Subject Company)
KK Acquisition Corp.
FLI Holding Corp.
Food Lion, Inc.
(Bidder(s))
Common Stock, $0.01 par value
(including Preferred Share Purchase Rights
issued with respect thereto)
(Title of Class of Securities)
48577P106
(CUSIP Number of Class of Securities)
R. William McCanless, Esq.
Senior Vice President and Chief Administrative Officer
Food Lion, Inc.
P.O. Box 1330
2110 Executive Drive
Salisbury, North Carolina 28145
Telephone: (704) 633-8250
(Name, address and telephone number of Persons
Authorized to Receive Notices and Communications
on behalf of Bidder)
Copy to:
Bruce S. Mendelsohn and
Russell W. Parks, Jr., P.C.
Akin, Gump, Strauss, Hauer & Feld, L.L.P.
1333 New Hampshire Avenue, N.W.
Suite 400
Washington, D.C. 20036
Telephone: (202) 887-4000
December 5, 1996
CALCULATION OF FILING FEE
Transaction Value Amount of Filing Fee
$121,532,164(1) $24,307(2)
/X/ Check box if any part of the fee is offset as provided by Rule 0-11(a)(2)
and identify the filing with which the offsetting fee was previously paid.
Identify the previous filing by registration statement number, or the Form
or Schedule and the date of its filing.
Amount Previously Paid: $24,307 Filing Party:
Form or Registration No.: Schedule 14D-1 KK Acquisition Corp.
FLI Holding Corp.
Food Lion, Inc.
Date Filed: November 15, 1996
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(1) Calculated by multiplying $26.00, the per share tender offer price, by
4,674,314, the number of shares of Common Stock sought in the Offer.
(2) 1/50 of 1% of the Transaction Valuation.
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This Amendment No. 1 is filed by KK Acquisition Corp., a corporation
organized and existing under the laws of the State of Delaware ("Purchaser") and
a wholly owned subsidiary of FLI Holding Corp. ("Holding"), a Delaware
corporation and a wholly owned subsidiary of Food Lion, Inc., a North Carolina
corporation ("Parent"), to amend its Tender Offer Statement filed on November
15, 1996 (the "Schedule 14D-1") relating to the purchase of all outstanding
shares of common stock, par value $0.01 per share (the "Shares"), of Kash n'
Karry Food Stores, Inc., a corporation organized and existing under the laws of
the State of Delaware (the "Company"), including the associated Preferred Share
Purchase Rights (the "Rights") issued pursuant to the Rights Agreement, dated as
of April 13, 1995, between the Company and Fleet National Bank (successor in
interest to Shawmut Bank Connecticut, N.A.), as Rights Agent, as amended by the
First Amendment to Rights Agreement dated as of June 13, 1995, and the Second
Amendment to Rights Agreement dated as of October 30, 1996 (the "Rights
Agreement"). All references herein to the Rights include all benefits which may
inure to stockholders of the Company pursuant to the Rights Agreement, and
unless the context requires otherwise, all references herein to Shares include
the Rights. Capitalized terms used herein and not defined shall have the
meanings set forth in the Offer to Purchase, dated November 15, 1996, filed as
Exhibit (a)(1) to the Schedule 14D-1.
ITEM 11. MATERIAL TO BE FILED AS EXHIBITS.
(a)(1) Offer to Purchase, dated November 15, 1996.
(a)(2) Letter of Transmittal.
(a)(3) Notice of Guaranteed Delivery.
(a)(4) Form of Letter to Brokers, Dealers, Commercial Banks, Trust
Companies and Nominees.
(a)(5) Letter from Brokers, Dealers, Commercial Banks, Trust Companies
and Nominees to Clients.
(a)(6) Guidelines for Certification of Taxpayer Identification Number on
Substitute Form W-9.
(a)(7) Summary Advertisement as published in THE WALL STREET JOURNAL on
November 15, 1996.
(a)(8) Press Release issued by Parent and the Company on October 31,
1996 (incorporated herein by reference to Exhibit 99 to the
Company's Current Report on Form 8-K filed November 4, 1996).
(a)(9) Press Release issued by Parent on November 8, 1996.
(a)(10) Press Release issued by Parent on November 15, 1996.
(a)(11) Amendment and Supplement, dated December 5, 1996 to Offer to
Purchase, dated November 15, 1996.
(b) Food Lion, Inc. Senior Credit Facilities Commitment Letter from
Chase Securities, Inc. to Parent, dated October 29, 1996.
(c)(1) Agreement and Plan of Merger, dated as of October 31, 1996, among
Parent, Purchaser and the Company (incorporated herein by
reference to Exhibit 2 to the Company's Current Report on
Form 8-K filed November 4, 1996).
(c)(2) Stockholders Agreement, dated as of October 31, 1996, among
BankAmerica Capital Corporation, Citicorp North America, Inc.,
Landmark Equity Partners III, L.P., Landmark Equity Partners IV,
L.P., The Prudential Insurance Company of America, Prudential
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Property & Casualty Company, Pruco Life Insurance Company of
Arizona, PaineWebber Capital Inc., UBS Capital LLC, High Yield
Portfolio, IDS Bond Fund, Inc., IDS Life Advantage Fund, Pruco
Life Insurance Company, Wells, Fargo & Company, the Company,
Parent and Purchaser (incorporated herein by reference to
Exhibit 10 to the Company's Current Report on Form 8-K filed
November 4, 1996).
(c)(3) Confidentiality Agreement between Company and Parent, dated May
20, 1996.
(c)(4) Confidentiality Agreement between Parent and Company, dated May
21, 1996.
(d) None.
(e) Not applicable.
(f) Not applicable.
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EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NO.
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ITEM
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<C> <S>
(a)(1) Offer to Purchase, dated November 15, 1996
(a)(2) Letter of Transmittal
(a)(3) Notice of Guaranteed Delivery
(a)(4) Letter from the Information Agent to Brokers, Dealers, Commercial
Banks, Trust Companies and Nominees
(a)(5) Letter from Brokers, Dealers, Commercial Banks, Trust Companies
and Nominees to Clients
(a)(6) Guidelines for Certification of Taxpayer Identification Number on
Substitute Form W-9
(a)(7) Summary Advertisement as published in THE WALL STREET JOURNAL on
November 15, 1996
(a)(8) Press Release issued by Parent and the Company on October 31,
1996
(a)(9) Press Release issued by Parent on November 8, 1996
(a)(10) Press Release issued by Parent on November 15, 1996
(a)(11) Amendment and Supplement, dated December 5, 1996 to Offer to
Purchase, dated November 15, 1996
(b) Food Lion, Inc. Senior Credit Facilities Commitment Letter from
Chase Securities, Inc. to Parent, dated October 29, 1996
(c)(3) Confidentiality Agreement between Company and Parent, dated May
20, 1996
(c)(4) Confidentiality Agreement between Parent and Company, dated May
21, 1996
(d) None
(e) Not applicable
(f) Not applicable
</TABLE>
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Exhibit (a)(11)
AMENDMENT AND SUPPLEMENT TO
OFFER TO PURCHASE
The Offer to Purchase dated November 15, 1996 is amended and supplemented as
follows.
SECTION 1 - The sixth paragraph of Section 1 is amended and restated as follows:
On November 1, 1996, Etablissements Delhaize Freres et Cie "Le Lion" S.A.,
the owner of approximately 52%(1) of the voting stock of Parent ("Delhaize"),
and the Company, each, filed with the Federal Trade Commission (the "FTC") and
the Antitrust Division of the Department of Justice (the "Antitrust Division") a
Premerger Notification and Report Form under the HSR Act (each a "Premerger
Notification"). The applicable waiting period under the HSR Act would have
expired on December 1, 1996. In order to provide the FTC and the Antitrust
Division more time to review the proposed transaction without the necessity of
issuing a second request under the HSR Act, Delhaize withdrew its Premerger
Notification on November 27, 1996, and refiled the Premerger Notification with
the Antitrust Division and the FTC on December 2, 1996. The waiting period is
currently scheduled to expire at 11:59 p.m., New York City time, on December 17,
1996. Prior to the expiration or termination of such waiting period, the FTC
or the Antitrust Division may extend such waiting period by requesting
additional information from Delhaize. If such a request is made, the waiting
period will expire at 11:59 p.m., New York City time, on the tenth calendar day
after substantial compliance by Delhaize with such a request. The waiting period
under the HSR Act may be terminated prior to its expiration by the FTC and the
Antitrust Division. See Section 15 for additional information regarding the HSR
Act.
SECTION 2 - The first paragraph of Section 2 is amended and restated in its
entirety as follows:
2. ACCEPTANCE FOR PAYMENT AND PAYMENT FOR SHARES. Upon the terms and
subject to the conditions of the Offer (including, in the event the Offer is
extended or amended, the terms and conditions of any such extension or
amendment), Purchaser will accept for payment, and will pay for, all Shares
validly tendered prior to the Expiration Date and not properly withdrawn,
promptly after the later to occur of (i) the Expiration Date, and (ii) the
satisfaction of the Regulatory Approval Condition (as defined in Section 14
below). Subject to applicable rules of the Commission, Purchaser expressly
reserves the right to delay acceptance of payment of, or payment for, Shares
pending receipt of any regulatory approvals specified in Section 15 or in order
to comply in whole or in part with any other applicable law. See Section 15.
SECTION 14 - Section 14 is amended and restated in its entirety as follows:
14. CERTAIN CONDITIONS OF THE OFFER. Notwithstanding any other provision
of the Offer, Purchaser shall not be required to accept for payment or, subject
to any applicable rules and regulations of the Commission, including
Rule 14e-1(c) under the Exchange Act (relating to Purchaser's obligation to pay
for or return tendered Shares promptly after termination or withdrawal of the
Offer), pay for, and may (subject to any such rule or regulation) delay the
acceptance for payment of or payment for any tendered Shares, and may (except as
provided in the Merger Agreement) amend or terminate the Offer as to any Shares
not then paid for, if, prior to the Expiration Date,
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(1) Includes shares held of record by Delhaize's wholly owned subsidiary,
Delhaize The Lion America, Inc., a Delaware corporation.
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(i) the condition that Shares representing at least a majority of the
number of Shares outstanding on a fully diluted basis shall have been validly
tendered and not properly withdrawn prior to the expiration of the Offer shall
not have been satisfied (referred to herein as the "Minimum Condition"), or
(ii) at any time on or after the date of the Merger Agreement and before
the time of payment for any such Shares (whether or not any Shares have
theretofore been accepted for payment or paid for pursuant to the Offer), any of
the following events shall have occurred and remain in effect other than as a
result of any action or inaction of Parent or any of its subsidiaries that
constitutes a breach of the Merger Agreement:
(a) there shall have been any law or order promulgated, entered,
enforced, enacted, issued or deemed applicable to the Offer, the Merger or
the Stockholders Agreement by any court of competent jurisdiction or other
competent governmental or regulatory authority which, directly or
indirectly, (1) prohibits, or imposes any material limitations on, Parent's
or Purchaser's ownership or operation (or that of any of their respective
subsidiaries or affiliates) of any portion of their or the Company's
businesses or assets which is material to the business of the Company and
its subsidiaries taken as a whole, or material to the business or assets of
Parent or its subsidiaries taken as a whole or compels Parent or Purchaser
(or their respective subsidiaries or affiliates) to dispose of or hold
separate any portion of their or the Company's business or assets which is
material to the business of the Company and its subsidiaries taken as a
whole, or material to the business of Parent and its subsidiaries taken as
a whole, (2) prohibits, restrains or makes illegal the acceptance for
payment, payment for or purchase of Shares pursuant to the Offer or the
Stockholders Agreement or the consummation of the Merger, (3) imposes
material limitations on the ability of Purchaser or Parent (or any of their
respective subsidiaries or affiliates) effectively to acquire or to hold or
to exercise full rights of ownership of the Shares purchased pursuant to
the Offer or the Stockholders Agreement including, without limitation, the
right to vote such Shares on all matters properly presented to the
Stockholders, (4) imposes limitations on the ability of Purchaser or Parent
(or any of their respective subsidiaries or affiliates) effectively to
control in any material respect any material portion of the business or
assets of the Company and its subsidiaries taken as a whole, or any
material portion of the business or assets of Parent and its subsidiaries
taken as a whole, or (5) has the effect of making illegal or otherwise
restricting, preventing or prohibiting consummation of the Offer or the
other transactions contemplated by the Merger Agreement;
(b) there shall be no instituted or pending action or proceeding
before any governmental or regulatory authority (or any such action
threatened by any governmental or regulatory authority) which (x) in the
case of any such action or proceeding brought by any governmental or
regulatory authority, seeks any order, decree or injunction having any
effect set forth in (a) above or (y) in the case of any such action or
proceeding brought by any other person, could reasonably be expected to
result in any order, decree or injunction having any effect set forth in
(a) above;
(c) there shall have occurred and be continuing (1) any general
suspension of trading in, or limitation on prices for, securities on any
United States national securities exchange or in the over-the-counter
market, (2) a decline of at least 35% in either the Dow Jones Average of
Industrial Stock or the Standard & Poors Index after the date hereof, (3) a
declaration of a banking moratorium or any suspension of payments in
respect of banks in the United States (whether or not mandatory), (4) any
limitation (whether or not mandatory) by any governmental or regulatory
authority on the extension of credit by banks or other financial
institutions, (5) a commencement of a war or armed hostilities or other
national or international crisis directly or indirectly involving the
United States having a significant adverse effect on the functionality of
the financial markets in the United States or (6) in the case of any of the
foregoing existing on the date of the Merger Agreement, in the reasonable
judgment of the Parent a material acceleration or worsening thereof;
(d) the representations and warranties made by the Company in the
Merger Agreement that are subject to, or qualified by, "material adverse
effect," "material adverse change" or other materiality qualification shall
not be true and correct or the representations and warranties made by the
Company in the Merger Agreement that are not so qualified shall not be true
and correct in any respect which could
<PAGE>
reasonably be expected to have a material adverse effect on the Company and
its subsidiaries taken as a whole, or Parent and its subsidiaries taken as
a whole, in each case as of the date of the consummation of the Offer as
though made on and as of such date or, in the case of representations and
warranties made as of a specific date earlier than the date of the
consummation of the Offer, on and as of such earlier date;
(e) the Company shall not have performed and complied with, in all
material respects (without reference to any materiality qualifications
contained therein), each agreement and covenant required by the Merger
Agreement to be performed or complied with by it; or
(f) the Merger Agreement shall have been terminated in accordance
with its terms;
which (in the case of paragraph (a), (b), (c), (d) or (e) above) makes it
inadvisable, as determined in the reasonable judgment of Purchaser, to proceed
with the Offer or with such acceptance for payment or payment.
Furthermore, notwithstanding any other provision of the Offer, Purchaser
shall not be required to accept for payment or, subject to any applicable rules
and regulations of the Commission, including Rule 14e-1(c) under the Exchange
Act (relating to Purchaser's obligation to pay for or return tendered Shares
promptly after termination or withdrawal of the Offer), pay for, and may
(subject to any such rule or regulation) delay the acceptance for payment of or
payment for any tendered Shares, and may (except as provided in the Merger
Agreement) amend or terminate the Offer as to any Shares not then paid for, if
(x) any applicable waiting period under the HSR Act shall not have
expired or terminated, prior to the expiration of the Offer, or (y) all
permits, consents, approvals, waivers and actions of, filings with and
notices to any governmental or regulatory authority or any other public or
private third parties required of Parent, the Company or any of their
respective subsidiaries to consummate the transactions contemplated by the
Merger Agreement shall not have been obtained or taken prior to the
expiration of the Offer (other than those the failure of which to be
obtained or taken could not be reasonably expected to have a material
adverse effect on Parent and its subsidiaries or the Company and its
subsidiaries, in each case taken as a whole, or on the ability of Parent
and the Company to consummate the transactions contemplated by the Merger
Agreement) and no such permit, consent, approval or waiver received or
action taken shall be subject to any condition which could reasonably be
expected prior to or following the consummation of the Offer to have a
material adverse effect on either Parent and its subsidiaries taken as a
whole, or on the Company and its Subsidiary taken as a whole, or otherwise
result in a material diminution of the benefits of the Merger to Parent
(referred to herein as the "Regulatory Approval Condition").
The foregoing conditions are for the sole benefit of Parent and Purchaser,
may be asserted by Parent and Purchaser regardless of the circumstances giving
rise to any such condition and, subject to the terms and conditions of the
Merger Agreement, may be waived by Parent and Purchaser, in whole or in part at
any time and from time to time in the sole discretion of Parent and Purchaser.
Any determination in the reasonable judgment of Purchaser concerning any of the
events described herein shall be final and binding. The failure by Parent and
Purchaser at any time to exercise any of the foregoing rights shall not be
deemed a waiver of any such right and each such right shall be deemed an ongoing
right which may be asserted at any time and from time to time.
SECTION 15 - The sixth paragraph of Section 15 is amended and restated as
follows:
Pursuant to the HSR Act, Parent (acting on behalf of Delhaize, as provided
under the HSR Act and the regulations thereunder) and Company each filed a
Premerger Notification and Report Form (the "Premerger Notification") with the
Antitrust Division and the FTC. Under the provisions of the HSR Act, the
purchase of Shares pursuant to the Offer may not be consummated until the
expiration of the applicable waiting period. The waiting period was scheduled
to expire on December 1, 1996. In order to provide the FTC and the Antitrust
Division more time to review the proposed transaction without the necessity of
issuing a second request under the HSR Act, Parent withdrew its Premerger
Notification on November 27, 1996 and refiled the
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Premerger Notification with the Antitrust Division and the FTC on December 2,
1996. The waiting period is currently scheduled to expire at 11:59 p.m., New
York City time, on December 17, 1996. Pursuant to the HSR Act, Parent has
requested early termination of the waiting period, but there can be no
assurance that early termination will be granted. Furthermore, if either the
FTC or the Antitrust Division were to request additional information or
documentary material from Parent with respect to the Offer, the applicable
waiting period would expire at 11:59 p.m., New York City time, on the tenth
calendar day after the date of substantial compliance by Parent with such
request. If the acquisition of Shares is delayed pursuant to a request by the
FTC or the Antitrust Division for additional information or documentary
material pursuant to the HSR Act, the Offer will be extended and, in any event,
the purchase of and payment for Shares will be deferred until ten days after
the request is substantially complied with and for such additional time that
the Parent voluntarily agrees to grant the FTC and/or the Antitrust Division to
review this matter. Any such extension of the Offer will not give rise to any
withdrawal rights not otherwise provided for by applicable law. See Section 4.
It is a condition to the Offer that the waiting period applicable under the HSR
Act to the Offer expire or be terminated and no legal action against Parent be
pending under the antitrust laws. See Section 2 and Section 14.
SECTION 17 - The first paragraph of Section 17 is amended and restated as
follows:
17. MISCELLANEOUS. Purchaser is not aware of any jurisdiction where
the making of the Offer is prohibited by any administrative or judicial action
pursuant to any valid state statute. If Purchaser becomes aware of any valid
state statute prohibiting the making of the Offer or the acceptance of Shares
pursuant thereto, Purchaser will make a reasonable effort to comply with any
such state statute. If, after such reasonable effort, Purchaser cannot comply
with any such state statute, the Offer will not be made to (nor will tenders be
accepted from or on behalf of) the holders of Shares in such state. In any
jurisdiction where the securities, blue sky or other laws require the Offer to
be made by a licensed broker or dealer, the Offer shall be deemed to be made on
behalf of Purchaser by the Dealer Manager or by one or more registered brokers
or dealers licensed under the laws of such jurisdiction.
EXCEPT AS MODIFIED BY THIS SUPPLEMENT, THE TERMS IN THE OFFER TO PURCHASE,
THE AMENDMENTS THERETO AND THE RELATED LETTER OF TRANSMITTAL REMAIN APPLICABLE
IN ALL RESPECTS TO THE OFFER AND THIS SUPPLEMENT SHOULD BE READ IN CONJUNCTION
WITH THE OFFER TO PURCHASE, THE AMENDMENTS THERETO AND THE RELATED LETTER OF
TRANSMITTAL.
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SIGNATURE
After due inquiry and to the best of each of the undersigned's knowledge
and belief, the undersigned do hereby certify that the information set forth in
this statement is true, complete and correct.
December 5, 1996 KK ACQUISITION CORP.
By: /s/ R. WILLIAM McCANLESS
Name: R. William McCanless
Title: Vice President
FLI HOLDING CORP.
By: /s/ R. WILLIAM McCANLESS
Name: R. William McCanless
Title: Vice President
FOOD LION, INC.
By: /s/ R. WILLIAM McCANLESS
Name: R. William McCanless
Title: Senior Vice President and
Chief Administrative Officer
