SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
AMENDMENT NO. 2
TO
SCHEDULE 14D-9
Solicitation/Recommendation Statement Pursuant to
Section 14(d)(4) of the Securities
Exchange Act of 1934
GIANT FOOD INC.
(Name of Subject Company)
GIANT FOOD INC.
(Name of Person(s) Filing Statement)
Class A Common Stock (Non-Voting), $1.00 par value
(Title of Class of Securities)
374478105
(Cusip Number of Class of Securities)
David W. Rutstein, Esq.
Senior Vice President and General Counsel
Giant Food Inc.
6300 Sheriff Road
Landover, Maryland 20785
(301) 341-4100
(Name, address and telephone number of person
authorized to receive notice and communications
on behalf of the person(s) filing statement)
Copy to:
Wayne K. Johnson, Esq.
Jorden Burt Boros Cicchetti Berenson & Johnson LLP
Suite 400 East
1025 Thomas Jefferson Street, N.W.
Washington, D.C. 20007
(202) 965-8100
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This Amendment No. 2 amends and supplements the
Solicitation/Recommendation Statement on Schedule 14D-9 filed on May 29, 1998
(the "Schedule 14D-9") on behalf of Giant Food Inc., a Delaware corporation (the
"Company"), relating to the tender offer by Giant Acquisition Corporation, a
Delaware corporation and indirect, wholly-owned subsidiary of Koninklijke Ahold
N.V., a public company with limited liability incorporated under the laws of The
Netherlands with its corporate seat in Zaandam (Municipality Zanstaad) (the
"Purchaser"), to purchase for cash all of the outstanding shares of the
Company's Class A Common Stock (Non-Voting), par value $1.00 per share (the
"Shares"), at a price of $43.50 per Share, net to the seller in cash, without
interest thereon (the "Offer Price"), upon the terms and subject to the
conditions set forth in the Purchaser's Offer to Purchase, dated May 19, 1998
(the "Offer to Purchase"), and in the related Letter of Transmittal and Notice
of Guaranteed Delivery. All capitalized terms not defined herein are used as
defined in the Schedule 14D-9.
ITEM 3. IDENTITY AND BACKGROUND.
Item 3(b) of the Schedule 14D-9 is hereby amended by adding at the end
thereof the following:
"Other. In October,1998, the Company entered into a Deductible
Indemnification Agreement (the "Indemnification Agreement")with the
MollyAnna Company, an indirect, wholly-owned subsidiary of the
Purchaser ("MollyAnna"), effective as of July 18, 1998. Under the
Indemnification Agreement, MollyAnna will indemnify the Company for
certain sums which the Company and its affiliates become legally
obligated to pay pursuant to their contractual obligations to indemnify
various insurers for incurred losses, retrospective premiums,
deductible losses, allocated loss adjustment expenses and unallocated
claims handling fees pursuant to retrospective premium plans,
deductible plans, co-insurance provisions or other similar contractual
provisions. In consideration, the Company paid MollyAnna a one-time
premium of $73 million. A copy of the Indemnification Agreement is
attached hereto as Exhibit 14 and is incorporated herein by reference."
ITEM 8. ADDITIONAL INFORMATION TO BE FURNISHED.
Item 8 is amended by adding the following:
On October 20, 1998, Royal Ahold issued a press release
announcing the Federal Trade Commission's acceptance of the proposed
divestiture settlement which will allow Royal Ahold's acquisition of
the Company to be completed.
ITEM 9. MATERIAL TO BE FILED AS EXHIBITS.
The information contained in Item 9 of the Schedule 14D-9 is hereby
amended by adding the following additional Exhibit:
Exhibit 14 -- Deductible Indemnification Agreement effective as of July 18,
1998 by and between The MollyAnna Company and Giant Food Inc.
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SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
GIANT FOOD INC.
By: /s/ David W. Rutstein
----------------------------------
David W. Rutstein
Senior Vice President and General
Counsel
Dated: October 20, 1998
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THE MOLLYANNA COMPANY
P.O. BOX 306, MONTPELIER, VERMONT 05601
(802) 229-5042
COVERAGE BINDER FOR: Giant Food, Inc.
6300 Sheriff Road
Landover, Maryland 20785
TYPE: Deductible Indemnification
POLICY NO.: 98-006
COVERAGE PERIOD: All periods prior to July 18, 1998 and the
period commencing July 18, 1998 and ending
July 17, 1999
COVERAGE/LIMITS: Indemnification of Giant Food, Inc., for all
sums which Giant shall become legally
obligated to pay pursuant to its Deductible
Obligations for Incurred Losses under the
Policies during the Effective Period of this
Agreement.
PREMIUM: $73,006,331
All terms and conditions as per wording of Policy and appropriate endorsement.
/s/ Andrew Sargeant
---------------------------
Andrew Sargeant
Authorized Representative
THE MOLYANNA COMPANY
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Policy No. 98-006
DEDUCTIBLE INDEMNIFICATION AGREEMENT
THIS DEDUCTIBLE INDEMNITY AGREEMENT ("Agreement") is made and effective as
of the 18th day of July, 1998 by and between:
(1) THE MOLLYANNA COMPANY, P.O. Box 306, Montpelier, VT 05601, a
Vermont insurance company ("MollyAnna"), and
(2) GIANT FOOD, INC., 6300 Sheriff Road, Landover, MD
20785, a company incorporated in Delaware, and its affiliates
as more completely disclosed on Schedule D ("Giant")
(collectively, the "Parties").
WITNESSETH:
WHEREAS, during the Coverage Period, Giant has insured and will continue to
insure certain workers compensation, general liability, and automobile risks
with various insurers (collectively, the "Insurer") under the Policies;
WHEREAS, Giant is obligated to indemnify the Insurer for liabilities
incurred by the Insurer with respect to a specified layer of risk pursuant to
various deductible provisions, endorsements, and retrospective rating plans
under the Policies;
WHEREAS, MollyAnna is duly licensed to transact the business of insurance
in Vermont and authorized to enter into this agreement;
NOW THEREFORE, in consideration of the premium set forth in Schedule A, the
Parties hereby agree as follows:
I. AGREEMENT
A. COVERAGE
MollyAnna will indemnify Giant for all sums which Giant shall become
legally obligated to pay pursuant to its Deductible Obligation for
Incurred Losses under the Policies during the effective period of this
Agreement.
B. EFFECTIVE PERIOD
This Agreement is effective as of the date listed above and will remain
in effect until canceled or terminated by either of the Parties or
until the Deductible Obligations under the Policies are exhausted.
C. NO OBLIGATION TO DEFEND
MollyAnna has no obligation to investigate or defend any claim or suit
against Giant.
II. DEFINITIONS
A. "DEDUCTIBLE OBLIGATIONS" means Giant's contractual obligations
under the Policies to indemnify the Insurer for Incurred Losses
pursuant to retrospective premiums plans, deductible plans,
co-insurance provisions or other similar contractual provisions
requiring Giant to indemnify the Insurer for Incurred Losses,
including with effect from March 1, 1999, Giant's contractual
obligation to indemnify the Insurer, or the amounts Giant is required
to pay as a result of its self-insured retention under a controlling
policy, providing the amount is not in excess of $1,000,000 per
occurence.
B. "INCURRED LOSS" or "INCURRED LOSSES" shall include, without limitation,
incurred losses, retrospective premiums (including any adjustments to
retrospective premiums for taxes and claims handling), deductible
losses, allocated loss adjustment expenses and unallocated claims
handling fees. Incurred Losses shall not include any sums paid by Giant
prior to the Effective Period.
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C. "COVERAGE PERIOD" shall mean all periods prior to July 18, 1998 and the
period commencing July 18, 1998 and ending July 17, 1999.
D. "POLICIES" means all workers compensation, general liability and
automobile insurance policies entered into by Giant which incepted or
will incept during the Coverage Period, including, without limitation,
the policies set forth on Schedule A.
E. Unless expressly provided in this Agreement or unless the context
requires otherwise, terms used in this Agreement shall have the
meanings attributed to them in the Policies.
III. CONDITIONS
A. CLAIMS REPORTING
Within [30 days] after the end of each [quarterly/annual] period, Giant
shall provide MollyAnna with a report reflecting the sums [paid to/due
to] the Insurer pursuant to the Deductible Obligations and proof of the
sums for which Giant seeks payment under this Agreement. Such proof
shall include:
1. the identity of each claim incurred by the Insurer;
2. for each claim:
a. the amounts paid or reserved for payment for Loss and
Allocated Loss Adjustment Expense; and
b. the amount of deductible payment applicable thereto;
and
c. the insurer's claim number, the claimant's name, and
the date of accident or occurrence; and
3. all tax factors and claims handling charges and fees. Giant shall
cooperate with MollyAnna and allow MollyAnna to obtain records
necessary to verify any of these items of information.
B. AUDIT & INSPECTION
MollyAnna shall have the right to examine and audit, at Giant's
expense, Giant's books and records at any time during the Effective
Period and within five years after the expiration of this Agreement,
or until all claims under the Policies have been settled or commuted,
whichever is later. MollyAnna shall have the further right to
physically inspect, at the expense of Giant, the premises of Giant to
review Giant's safety, labor and operational practices.
C. CHANGES
The terms of this Agreement cannot be changed except by written
amendment executed by Giant and MollyAnna.
D. ASSIGNMENT
This Agreement shall not be assigned or transferred without
MollyAnna's written consent.
E. NOVATION
Giant shall have the right to require that MollyAnna novate this
Agreement and transfer the liability hereunder to an insurer
designated by Giant, provided, however, that the insurer must have an
AM Best rating of "B" or higher. In the event Giant exercises this
right, MollyAnna shall be obligated to pay to the designated insurer
an amount equal to the premium set forth in Exhibit A minus the sums
paid by MollyAnna to Giant pursuant to this Agreement and MollyAnna
shall be relieved of any further liability under this Agreement.
F. PREMIUM
Upon execution of this Agreement, Giant immediately shall pay to
MollyAnna the premium amounts as set forth in Schedule C, subject to,
effective March 1, 1999, Giant retaining an amount of $1,000,000 per
occurrence under contractual obligations to the Insurer or
self-insured retention under a controlling policy. Should such an
amount change, the premium will be adjusted to reflect the higher or
lower amount.
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G. TRANSFER OF RIGHTS OF RECOVERY AGAINST OTHERS TO MOLLYANNA
Giant agrees to transfer to MollyAnna, any rights to recover all or
part of any payment to others under this Agreement, if these rights
arise for any reason, including contribution, subrogation,
indemnification or collection of any insurance proceeds that may
apply. Giant must take no action after a loss to impair these rights.
At MollyAnna's request, Giant will bring suit to enforce these rights
or will transfer these rights to MollyAnna and assist MollyAnna in
enforcing them.
H. BANKRUPTCY
Bankruptcy or insolvency of Giant, or the estate thereof, will not
relieve MollyAnna of its obligations under this Agreement.
I. ARBITRATION
Any dispute, claim, or controversy arising from or relating to this
Agreement or from any transaction related to this Agreement, shall be
submitted to arbitration proceeding in Montpelier, Vermont at the
request of any of the Parties.
1. The arbitration proceedings will be before three arbitrators.
Giant shall appoint one arbitrator and MollyAnna shall appoint
another one arbitrator; the two so appointed shall select a
third. If the two arbitrators fail to agree on a third
arbitrator for a period of sixty calendar days from the date
of their first attempt to select the third arbitrator, then on
request of Giant or MollyAnna such third arbitrator shall be
selected by the then president of the American Arbitration
Association. Giant and MollyAnna may by express agreement
determine the arbitral procedures to be followed. In the event
the parties do not agree, Vermont law shall govern all such
matters of arbitral procedure.
2. Unless the Parties agree otherwise, all arbitrators must be
executive officers or former executive officers of property or
casualty insurance or reinsurance companies or insurance
brokerage companies domiciled in the United States of America
not under the control of either of the Parties to this
Agreement.
3. Each of the Parties must submit its respective case to the
arbitrators within 30 days of the appointment of the third
arbitrator. The arbitrators must make their decisions within
60 days following termination of the hearing, unless the
Parties consent to an extension. The majority decision of any
two arbitrators, when filed with the Parties, will be final
and binding on the Parties.
4. The arbitrators must render their decision in writing, based
upon a hearing in which evidence may be introduced without
following strict rules of evidence, but in which cross
examination and rebuttal must be allowed.
5. The arbitrators may award compensatory damages and interest
thereupon. The arbitrators may also order the Parties to
release or provide collateral to the extent required by this
Agreement. They will have exclusive jurisdiction over the
entire matter in dispute, including any question as to its
arbitrability. However, they will not have the power to award
exemplary damages or punitive damages, however denominated,
whether or not multiplied, whether imposed by law or
otherwise.
6. The Parties must each bear the expense of their respective
arbitrator and must jointly and equally bear with each other
the expense of the third arbitrator and of the arbitration.
7. This Section will apply whether that dispute arises before or
after termination of this Agreement.
J. CHOICE OF LAW
This Agreement shall be governed and construed in accordance with the
laws of the State of Vermont.
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K.. COUNTERPARTS
This Agreement may be executed in counterparts, all of which together
shall constitute one document.
L. MODIFICATION
This Agreement may not be modified except upon written agreement of
both Parties.
WITNESS WHEREOF, the parties intending to be legally bound have executed
this Agreement.
THE MOLLYANNA COMPANY GIANT FOOD, INC.
By: Andrew Sargeant By: Kathleen Davis
Title: Attorney-in-fact
Title: Attorney-in-fact
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SCHEDULE A: Insurer and Policies
SCHEDULE B: Deductibles
SCHEDULE C: Premium
SCHEDULE D: Giant and its Affiliates
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