<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-----------------------------------------
SCHEDULE 13D
(RULE 13D-101)
UNDER THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. 3)
FRED MEYER, INC.
(Name of Issuer)
Common Stock, $.01 Par Value
(Title of Class of Securities)
592907-10-9
(CUSIP Number)
Robert P. Bermingham
The Yucaipa Companies
10000 Santa Monica Boulevard, Fifth Floor
Los Angeles, California 90067
(310) 789-7200
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
October 18, 1998
(Date of Event which Requires Filing of This Statement)
If the filing person has previously filed a statement on Schedule 13G to
report the acquisition which is the subject of this Schedule 13D, and is filing
this schedule because of Rule 13d-1(b)(3) or (4), check the following box: [ ]
The information required in the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 (the "Act") or otherwise subject to the liabilities of that section of the
Act but shall be subject to all other provisions of the Act (however, see the
Notes).
(Continued on following pages)
(Page 1 of 23 Pages)
<PAGE> 2
SCHEDULE 13D
- -------------------------------- --------------------------------
CUSIP NO. 592907-10-9 PAGE 2 OF 23
- -------------------------------- --------------------------------
- --------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
THE YUCAIPA COMPANIES
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [X]
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS
NA
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) [ ]
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
CALIFORNIA
- --------------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER
SHARES
BENEFICIALLY 4,856,211
OWNED BY EACH ----------------------------------------------------------
REPORTING 8 SHARED VOTING POWER
PERSON WITH
4,682,927
----------------------------------------------------------
9 SOLE DISPOSITIVE POWER
4,856,211
----------------------------------------------------------
10 SHARED DISPOSITIVE POWER
4,682,927
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
9,539,138
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES [ ]
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
6.2%
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
PN
- --------------------------------------------------------------------------------
<PAGE> 3
SCHEDULE 13D
- -------------------------------- --------------------------------
CUSIP NO. 592907-10-9 PAGE 3 OF 23
- -------------------------------- --------------------------------
- --------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
YUCAIPA ARIZONA PARTNERS, L.P.
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [X]
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS
NA
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) [ ]
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
CALIFORNIA
- --------------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER
SHARES
BENEFICIALLY 574,522
OWNED BY EACH ----------------------------------------------------------
REPORTING 8 SHARED VOTING POWER
PERSON WITH
0
----------------------------------------------------------
9 SOLE DISPOSITIVE POWER
574,522
----------------------------------------------------------
10 SHARED DISPOSITIVE POWER
0
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
574,522
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES [ ]
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.4%
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
PN
- --------------------------------------------------------------------------------
<PAGE> 4
SCHEDULE 13D
- -------------------------------- --------------------------------
CUSIP NO. 592907-10-9 PAGE 4 OF 23
- -------------------------------- --------------------------------
- --------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
YUCAIPA SMITTY'S PARTNERS, L.P.
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [X]
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS
NA
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) [ ]
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
CALIFORNIA
- --------------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER
SHARES
BENEFICIALLY 631,400
OWNED BY EACH ----------------------------------------------------------
REPORTING 8 SHARED VOTING POWER
PERSON WITH
0
----------------------------------------------------------
9 SOLE DISPOSITIVE POWER
631,400
----------------------------------------------------------
10 SHARED DISPOSITIVE POWER
0
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
631,400
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES [ ]
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.4%
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
PN
- --------------------------------------------------------------------------------
<PAGE> 5
SCHEDULE 13D
- -------------------------------- --------------------------------
CUSIP NO. 592907-10-9 PAGE 5 OF 23
- -------------------------------- --------------------------------
- --------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
YUCAIPA SMITTY'S PARTNERS II, L.P.
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [X]
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS
NA
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) [ ]
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
CALIFORNIA
- --------------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER
SHARES
BENEFICIALLY 287,264
OWNED BY EACH ----------------------------------------------------------
REPORTING 8 SHARED VOTING POWER
PERSON WITH
0
----------------------------------------------------------
9 SOLE DISPOSITIVE POWER
287,264
----------------------------------------------------------
10 SHARED DISPOSITIVE POWER
0
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
287,264
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES [ ]
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.2%
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
PN
- --------------------------------------------------------------------------------
<PAGE> 6
SCHEDULE 13D
- -------------------------------- --------------------------------
CUSIP NO. 592907-10-9 PAGE 6 OF 23
- -------------------------------- --------------------------------
- --------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
YUCAIPA SSV PARTNERS, L.P.
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [X]
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS
NA
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) [ ]
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
CALIFORNIA
- --------------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER
SHARES
BENEFICIALLY 2,744,594
OWNED BY EACH ----------------------------------------------------------
REPORTING 8 SHARED VOTING POWER
PERSON WITH
0
----------------------------------------------------------
9 SOLE DISPOSITIVE POWER
2,744,594
----------------------------------------------------------
10 SHARED DISPOSITIVE POWER
0
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,744,594
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES [ ]
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
1.8%
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
PN
- --------------------------------------------------------------------------------
<PAGE> 7
SCHEDULE 13D
- -------------------------------- --------------------------------
CUSIP NO. 592907-10-9 PAGE 7 OF 23
- -------------------------------- --------------------------------
- --------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
F4L EQUITY PARTNERS, L.P.
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [X]
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS
NA
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) [ ]
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
CALIFORNIA
- --------------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER
SHARES
BENEFICIALLY 3,798,525
OWNED BY EACH ----------------------------------------------------------
REPORTING 8 SHARED VOTING POWER
PERSON WITH
0
----------------------------------------------------------
9 SOLE DISPOSITIVE POWER
3,798,525
----------------------------------------------------------
10 SHARED DISPOSITIVE POWER
0
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
3,798,525
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES [ ]
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
2.5%
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
PN
- --------------------------------------------------------------------------------
<PAGE> 8
SCHEDULE 13D
- -------------------------------- --------------------------------
CUSIP NO. 592907-10-9 PAGE 8 OF 23
- -------------------------------- --------------------------------
- --------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
FFL PARTNERS
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [X]
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS
NA
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) [ ]
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
CALIFORNIA
- --------------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER
SHARES
BENEFICIALLY 365,429
OWNED BY EACH ----------------------------------------------------------
REPORTING 8 SHARED VOTING POWER
PERSON WITH
0
----------------------------------------------------------
9 SOLE DISPOSITIVE POWER
365,429
----------------------------------------------------------
10 SHARED DISPOSITIVE POWER
0
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
365,429
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES [ ]
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.2%
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
PN
- --------------------------------------------------------------------------------
<PAGE> 9
SCHEDULE 13D
- -------------------------------- --------------------------------
CUSIP NO. 592907-10-9 PAGE 9 OF 23
- -------------------------------- --------------------------------
- --------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
FRED MEYER/SMITH'S FOUNDATION
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [X]
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS
NA
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) [ ]
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
OREGON
- --------------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER
SHARES
BENEFICIALLY 28,165
OWNED BY EACH ----------------------------------------------------------
REPORTING 8 SHARED VOTING POWER
PERSON WITH
0
----------------------------------------------------------
9 SOLE DISPOSITIVE POWER
28,165
----------------------------------------------------------
10 SHARED DISPOSITIVE POWER
0
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
28,165
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES [ ]
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
LESS THAN 0.1%
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
OO
- --------------------------------------------------------------------------------
<PAGE> 10
SCHEDULE 13D
- -------------------------------- --------------------------------
CUSIP NO. 592907-10-9 PAGE 10 OF 23
- -------------------------------- --------------------------------
- --------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
YUCAIPA CAPITAL FUND
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [X]
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS
NA
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) [ ]
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
CALIFORNIA
- --------------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER
SHARES
BENEFICIALLY 335,711
OWNED BY EACH ----------------------------------------------------------
REPORTING 8 SHARED VOTING POWER
PERSON WITH
79,718
----------------------------------------------------------
9 SOLE DISPOSITIVE POWER
335,711
----------------------------------------------------------
10 SHARED DISPOSITIVE POWER
79,718
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
415,429
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES [ ]
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.3%
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
PN
- --------------------------------------------------------------------------------
<PAGE> 11
SCHEDULE 13D
- -------------------------------- --------------------------------
CUSIP NO. 592907-10-9 PAGE 11 OF 23
- -------------------------------- --------------------------------
- --------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
YUCAIPA/F4L PARTNERS
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [X]
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS
NA
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) [ ]
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
CALIFORNIA
- --------------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER
SHARES
BENEFICIALLY 79,718
OWNED BY EACH ----------------------------------------------------------
REPORTING 8 SHARED VOTING POWER
PERSON WITH
0
----------------------------------------------------------
9 SOLE DISPOSITIVE POWER
79,718
----------------------------------------------------------
10 SHARED DISPOSITIVE POWER
0
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
79,718
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES [ ]
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.1%
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
PN
- --------------------------------------------------------------------------------
<PAGE> 12
SCHEDULE 13D
- -------------------------------- --------------------------------
CUSIP NO. 592907-10-9 PAGE 12 OF 23
- -------------------------------- --------------------------------
- --------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
RONALD W. BURKLE
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [X]
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS
NA
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) [ ]
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
US
- --------------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER
SHARES
BENEFICIALLY 827,320
OWNED BY EACH ----------------------------------------------------------
REPORTING 8 SHARED VOTING POWER
PERSON WITH
13,701,539
----------------------------------------------------------
9 SOLE DISPOSITIVE POWER
827,320
----------------------------------------------------------
10 SHARED DISPOSITIVE POWER
13,701,539
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
14,528,859
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES [ ]
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
9.4%
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
IN
- --------------------------------------------------------------------------------
<PAGE> 13
Item 1. Security and Issuer.
This Amendment No. 3 to Schedule 13D (this "Amendment") is being filed
by The Yucaipa Companies, a California general partnership ("Yucaipa"), Yucaipa
Arizona Partners, L.P., a California limited partnership ("Arizona Partners"),
Yucaipa Smitty's Partners, L.P., a California limited partnership ("Smitty's
Partners"), Yucaipa Smitty's Partners II, L.P., a California limited partnership
("Smitty's Partners II"), Yucaipa SSV Partners, L.P., a California limited
partnership ("SSV Partners"), F4L Equity Partners, L.P., a California limited
partnership ("F4L Equity Partners"), FFL Partners, a California general
partnership ("FFL Partners"), Fred Meyer/Smith's Foundation, an Oregon
non-profit corporation ("Foundation"), Yucaipa Capital Fund, a California
limited partnership ("Yucaipa Capital Fund"), Yucaipa/F4L Partners, a California
general partnership ("Yucaipa/F4L Partners"), and Ronald W. Burkle
(collectively, the "Reporting Persons"). This Amendment No. 3 amends the
Statement on Schedule 13D dated September 9, 1997 filed with the Securities and
Exchange Commission (the "Commission") on September 19, 1997, Amendment No. 1
thereto dated November 6, 1997 filed with the Commission on November 17, 1997
and Amendment No. 2 thereto dated March 10, 1998 filed with the Commission on
March 20, 1998 (the "Statement") by the Reporting Persons relating to the common
stock, par value $.01 per share (the "Common Stock"), of Fred Meyer, Inc., a
Delaware corporation ("Fred Meyer" or the "Company"), which has its principal
executive offices located at 3800 S.E. 22nd Avenue, Portland, Oregon 97202. This
Amendment No. 3 reflects that the Reporting Persons have entered into a Voting
Agreement, dated as of October 18, 1998 (the "Voting Agreement"), with The
Kroger Co., an Ohio corporation ("Kroger"). Capitalized terms used herein that
are not otherwise defined shall have the meanings given to them in the
Statement.
Item 2. Identity and Background.
The response to Item 2 is amended as follows:
Item 2(a) is restated in its entirety as follows:
(a) This statement is being filed jointly by the Reporting Persons.
Yucaipa is the sole general partner of each of Arizona Partners, Smitty's
Partners, Smitty's Partners II and SSV Partners. Ronald W. Burkle, Robert I.
Bernstein, Linda McLoughlin Figel, Patrick L. Graham, Lawrence K. Kalantari,
Darren W. Karst and Ira L. Tochner are the general partners of Yucaipa. Ronald
W. Burkle, Yucaipa Capital Advisors, Inc., a California corporation ("Yucaipa
Capital Advisors"), and George G. Golleher are the sole general partners of F4L
Equity Partners. Ronald W. Burkle is the sole executive officer, director and
controlling stockholder of Yucaipa Capital Advisors. Ronald W. Burkle, Joe
Burkle, Richard d'Abo, David Gammon, Greg Gammon, Larry Larkin, Rex H. Lewis,
Harold McIntire, Douglas L. McKenzie, Michael Saltman, Charles Smith, Darrel
Willoughby, Yucaipa Capital Partners, L.P., Yucaipa and Yucaipa Auto Partners,
L.P. are the sole general partners of FFL Partners. Ronald W. Burkle is the sole
general partner of each of Yucaipa Capital Partners, L.P. and Yucaipa Auto
Partners, L.P. Ronald W. Burkle, Robert G. Miller, Roger A. Cooke and Kenneth
Thrasher are the President, Vice President, Secretary and Treasurer,
respectively, and each is a director, of Foundation. Yucaipa Capital Advisors is
the sole general partner of Yucaipa Capital Fund. Yucaipa Capital Fund and
Yucaipa are the sole partners of Yucaipa/F4L Partners.
Item 2(b) is restated in its entirety as follows:
(b) The address of the principal business and principal office of
Yucaipa, Arizona Partners, Smitty's Partners, Smitty's Partners II, SSV
Partners, F4L Equity Partners, FFL Partners, Foundation, Yucaipa Capital Fund,
Yucaipa/F4L Partners, Yucaipa Capital Advisors, Yucaipa Capital Partners, L.P.
and Yucaipa Auto Partners, L.P. is c/o The Yucaipa Companies, 10000 Santa Monica
Boulevard, Fifth Floor, Los Angeles, California 90067. The business address of
Ronald W. Burkle, Robert I. Bernstein, Linda McLoughlin Figel, Patrick L.
Graham, Lawrence K. Kalantari, Darren W. Karst and Ira L. Tochner is c/o The
Yucaipa Companies 10000 Santa Monica Boulevard, Fifth Floor, Los Angeles,
California 90067. The business address of each of George G. Golleher, Harold
McIntire and Darrel Willoughby is c/o Ralphs Grocery Company, 1100 West Artesia
Boulevard, Compton, California 90220. The business address of each of Joe Burkle
and David Gammon is c/o Falley's, Inc., 3120 S. Kansas Avenue, Topeka, Kansas
66611. The business address of Richard d'Abo is c/o Creative Cafe Wilshire, 640
San Vicente Boulevard, Suite 70, Los Angeles, California 90048. The business
address of Greg Gammon is 15751
(Page 13 of 23)
<PAGE> 14
Golden Spur, Riverside, California 92504. The business address of Larry Larkin
is c/o Larkin Properties, 1700 E. Desert Inn Road, Suite 405, Las Vegas, Nevada
89109. The business address of Rex H. Lewis is c/o Avante Homes, 2325 A
Renaissance Drive, Las Vegas, Nevada 89119. The business address of Douglas L.
McKenzie is c/o Big Sur Bottled Water, 21875 Rosehart Way, Salinas, California
93921. The business address of Michael Saltman is c/o The Vista Group, 2295 A
Renaissance Drive, Las Vegas, Nevada 89119. The address of Charles Smith is 3527
Copper Kettle Way, Orange, California 92867. The business address of each of
Robert G. Miller, Roger A. Cooke and Kenneth Thrasher is c/o Fred Meyer, Inc.,
3800 SE 22nd Avenue, Portland, Oregon 97202.
Item 2(c) is restated in its entirety as follows:
The principal business of Yucaipa is acquiring, investing in and/or
managing supermarket and other companies. The principal business of Arizona
Partners, Smitty's Partners, Smitty's Partners II, SSV Partners, F4L Equity
Partners, FFL Partners, Yucaipa Capital Fund and Yucaipa FFL Partners is
investing in the Common Stock. The present principal occupation or employment of
each of Ronald W. Burkle, Robert I. Bernstein, Linda McLoughlin Figel, Patrick
L. Graham, Lawrence K. Kalantari, Darren W. Karst and Ira L. Tochner is as a
principal of The Yucaipa Companies LLC, a private investment group specializing
in supermarket companies and an affiliate of Yucaipa ("Yucaipa LLC"), the
address of which is 10000 Santa Monica Boulevard, Fifth Floor, Los Angeles,
California 90067. The principal business of each of Yucaipa Capital Advisors and
Yucaipa Capital Partners, L.P. is to own an interest in and manage certain
entities which invest in the Common Stock. The principal business of Yucaipa
Auto Partners, L.P. is to own an interest in and manage certain assets,
including entities which invest in the Common Stock. The principal purpose of
Foundation is as a not-for-profit charitable organization. The present principal
occupation or employment of George G. Golleher and Harold McIntire is as the
President and Chief Operating Officer of Fred Meyer and the President of the
Food 4 Less Division of Ralphs Grocery Company, a Delaware corporation,
respectively. The present principal occupation or employment of Joe Burkle and
David Gammon is as the Chief Executive Officer and Assistant to the President,
respectively, of Falley's, Inc. The present principal occupation or employment
of Richard d'Abo is in the operations of a post-production film company. The
present principal occupation or employment of Greg Gammon is as a salesman.
Larry Larkin and Charles Smith are retired. The present principal occupation or
employment of Rex H. Lewis and Michael Saltman is as a developer. The present
principal occupation or employment of Douglas L. McKenzie is as the President of
Big Sur Bottled Water. The present principal occupation or employment of Darrel
Willoughby is as a construction manager. The present principal occupation of
Robert G. Miller, Roger A. Cooke and Kenneth Thrasher is as the Chief Executive
Officer, Senior Vice President and General Counsel and Executive Vice President
and Chief Administrative Officer, respectively, of Fred Meyer.
Item 2(d) is restated in its entirety as follows:
None of the Reporting Persons, nor, to the best of their knowledge, any
of the individuals referred to in paragraph (a) above, has during the last five
years been convicted in a criminal proceeding (excluding traffic violations and
similar misdemeanors).
Item 2(e) is restated in its entirety as follows:
None of the Reporting Persons, nor, to the best of their knowledge, any
of the individuals referred to in paragraph (a) above, has during the last five
years been a party to a civil proceeding of a judicial or administrative body of
competent jurisdiction and as a result of such proceeding was or is subject to
judgment, decree or final order enjoining future violations of, or prohibiting
or mandating activities subject to, federal or state securities laws or finding
any violation with respect to such laws.
Item 2(f) is restated in its entirety as follows:
To the Reporting Persons' knowledge, each of the individuals referred to
in paragraph (a) above, other than Richard d'Abo is a United States citizen. To
the Reporting Persons' knowledge, Richard d'Abo is a citizen of the United
Kingdom.
(Page 14 of 23)
<PAGE> 15
Item 3. Source and Amount of Funds or Other Consideration.
Item 3 is restated in its entirety as follows:
The consideration for the shares of Common Stock acquired by the
Reporting Persons was (i) Class B Common Stock, par value $.01 per share, of
Smith's Food & Drug Centers, Inc., a Delaware corporation ("Smith's"), held by
the Reporting Persons prior to September 9, 1997 and (ii) common stock, par
value $.01 per share, of Food 4 Less Holdings, Inc., a Delaware corporation
("Food 4 Less") and, in the case of Yucaipa, a warrant to purchase shares
thereof, in each case held by the Reporting Persons prior to March 10, 1998.
On September 9, 1997 (the "Fred Meyer-Smith's Merger Closing Date"),
pursuant to the Agreement and Plan of Reorganization and Merger dated as of May
11, 1997 (the "Fred Meyer-Smith's Merger Agreement") among Fred Meyer, FM
Stores, Inc., a Delaware corporation formerly known as Fred Meyer, Inc. ("FM
Stores"), Smith's, Fred Meyer Merger Sub, Inc., a Delaware corporation and
wholly-owned subsidiary of Fred Meyer ("Fred Meyer Merger Sub") and Smith Merger
Sub, Inc., a Delaware corporation and wholly-subsidiary of Fred Meyer ("Smith's
Merger Sub"), (i) Smith's Merger Sub merged with and into Smith's and Fred Meyer
Merger Sub merged with and into FM Stores (together, the "Fred Meyer-Smith's
Merger") with each of Smith's and FM Stores surviving the respective merger and
becoming a wholly-owned subsidiary of Fred Meyer, (ii) each outstanding share of
Class A Common Stock, par value $.01 per share, and Class B Common Stock, par
value $.01 per share, of Smith's (including shares held by each of the Reporting
Persons) was converted into 1.05 shares of Common Stock and (iii) each
outstanding share of common stock, par value $.01 per share, of FM Stores was
converted into one share of Common Stock.
On March 10, 1998 (the "Fred Meyer-Food 4 Less Merger Closing Date"),
pursuant to the Agreement and Plan of Merger, dated as of November 6, 1997 (the
"Fred Meyer-Food 4 Less Merger Agreement"), by and among Fred Meyer, Food 4 Less
and FFL Acquisition Sub, a Delaware corporation and wholly-owned subsidiary of
Fred Meyer ("FFL Sub"), FFL Sub merged with and into Food 4 Less (the "Fred
Meyer-Food 4 Less Merger") with Food 4 Less surviving the Fred Meyer-Food 4 Less
Merger and becoming a wholly-owned subsidiary of Fred Meyer. In connection
therewith, all outstanding shares of capital stock of Food 4 Less, together with
the warrant to purchase shares of common stock of Food 4 Less held by Yucaipa,
were converted into shares of Common Stock.
Item 4. Purpose of Transaction.
Item 4 is restated in its entirety as follows:
As further described below in Item 6, the Reporting Persons have entered
into the Voting Agreement with Kroger. The Voting Agreement was entered into by
the parties in connection with the Fred Meyer-Kroger Merger Agreement (as
defined herein) as more fully described in Item 6 below.
On October 18, 1998, Kroger, Jobsite Holdings, Inc., a Delaware
corporation and wholly-owned subsidiary of Kroger ("Jobsite Holdings"), and Fred
Meyer, entered into an Agreement and Plan of Merger (the "Fred Meyer-Kroger
Merger Agreement"), a copy of which is attached hereto as an exhibit and
incorporated herein by reference. Pursuant to the terms of the Fred Meyer-Kroger
Merger Agreement, Jobsite Holdings will merge with and into Fred Meyer (the
"Fred Meyer-Kroger Merger") with Fred Meyer surviving the Fred Meyer-Kroger
Merger and becoming a wholly-owned subsidiary of Kroger, subject to certain
conditions being satisfied or waived. Certain stockholders of Fred Meyer,
including the Reporting Persons, holding approximately 9.5% of the aggregate
voting power of Fred Meyer have entered into agreements to vote their shares of
Fred Meyer stock in favor of the Fred Meyer-Kroger Merger Agreement. Pursuant to
the Fred Meyer-Kroger Merger Agreement, stockholders of Fred Meyer will receive
one share of common stock, par value $1.00 per share, of Kroger for each share
of Common Stock.
(Page 15 of 23)
<PAGE> 16
Item 5. Interest in Securities of the Issuer.
The response to Item 5 is amended as follows:
Item 5(a) is restated in its entirety as follows:
(a) Arizona Partners owns 574,522 shares of Common Stock
(approximately 0.4% of the total number of outstanding shares of Common Stock as
of October 18, 1998); Smitty's Partners owns 631,400 shares of Common Stock
(approximately 0.4% of the total number of outstanding shares of Common Stock as
of October 18, 1998); Smitty's Partners II owns 287,264 shares of Common Stock
(approximately 0.2% of the total number of outstanding shares of Common Stock as
of October 18, 1998); SSV Partners owns 2,744,594 shares of Common Stock
(approximately 1.8% of the total number of outstanding shares of Common Stock as
of October 18, 1998); Yucaipa owns 986,845 shares of Common Stock (approximately
0.6% of the total number of outstanding shares of Common Stock as of October 18,
1998) and is the record holder of a currently exercisable warrant entitling it
to purchase up to 3,869,366 shares of Common Stock, which shares it may be
deemed to beneficially own pursuant to Section 13d-3(d)(1) of the Act; F4L
Equity Partners owns 3,798,525 shares of Common Stock (approximately 2.5% of the
total number of outstanding shares of Common Stock as of October 18, 1998); FFL
Partners owns 365,429 shares of Common Stock (approximately 0.2% of the total
number of outstanding shares of Common Stock as of October 18, 1998); Foundation
owns 28,165 shares of Common Stock (less than 0.1% of the total number of
outstanding shares of Common Stock as of October 18, 1998); Yucaipa Capital Fund
owns 335,711 shares of Common Stock (approximately 0.3% of the total number of
outstanding shares of Common Stock as of October 18, 1998); Yucaipa/F4L Partners
owns 79,718 shares of Common Stock (approximately 0.1% of the total number of
outstanding shares of Common Stock as of October 18, 1998); and Ronald W. Burkle
owns 827,320 shares of Common Stock (approximately 0.5% of the total number of
outstanding shares of Common Stock as of October 18, 1998).
Item 5(b) is restated in its entirety as follows:
Each of Arizona Partners, Smitty's Partners, Smitty's Partners II and
SSV Partners, acting through their sole general partner, Yucaipa, have the sole
power to vote or direct the vote, and to dispose or to direct the disposition of
the shares of Common Stock beneficially owned by them. As a result, Yucaipa may
be deemed to beneficially own the shares of Common Stock directly owned by
Arizona Partners, Smitty's Partners, Smitty's Partners II and SSV Partners. Each
of Ronald W. Burkle, Robert I. Bernstein, Linda McLoughlin Figel, Patrick L.
Graham, Lawrence K. Kalantari, Darren W. Karst and Ira L. Tochner as a general
partner of Yucaipa, may be deemed to beneficially own the shares of Common Stock
beneficially owned by the Reporting Persons, but disclaims any such ownership
(except to the extent of such individual's pecuniary interest therein), and the
filing of this statement shall not be construed as an admission that any of
Messrs. Burkle, Bernstein, Graham, Kalantari, Karst or Tochner or Ms. Figel is,
for the purposes of Section 13(d) or 13(g) of the Act, the beneficial owner of
such securities. Each of F4L Equity Partners, FFL Partners, Yucaipa Capital Fund
and Yucaipa/F4L Partners, acting through its respective general partner(s), has
the sole power to vote or direct the vote, and to dispose or to direct the
disposition of the shares of Common Stock beneficially owned by them. In
addition, (i) Yucaipa may be deemed to beneficially own the shares of Common
Stock directly owned by FFL Partners and Yucaipa/F4L Partners, but disclaims any
such ownership (except to the extent of its pecuniary interest therein), (ii)
Yucaipa Capital Fund may be deemed to beneficially own the shares of Common
Stock directly owned by Yucaipa/F4L Partners, but disclaims any such ownership
(except to the extent of its pecuniary interest therein) and (iii) Ronald W.
Burkle may be deemed to beneficially own the shares of Common Stock directly
owned by Yucaipa, Arizona Partners, Smitty's Partners, Smitty's Partners II, SSV
Partners, F4L Equity Partners, FFL Partners, Foundation, Yucaipa Capital Fund
and Yucaipa/F4L Partners, but disclaims any such ownership (except to the extent
of his pecuniary interest therein). Ronald W. Burkle has the sole power to vote
or direct the vote, and to dispose or to direct the disposition of shares of
Common Stock beneficially held by him. Foundation, acting through its board of
directors, has the sole power to vote or direct the vote, and to dispose or
direct the disposition of the shares of Common Stock beneficially owned by it.
(Page 16 of 23)
<PAGE> 17
Item 5 (c) is restated in its entirety as follows:
(c) Except as described in Item 4 above, there have not been any
transactions in the Common Stock effected by or for the account of the Reporting
Persons during the past 60 days.
Item 5(e) is restated in its entirety as follows:
Not applicable.
Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to
Securities of the Issuer.
Item 6 is restated in its entirety as follows:
In connection with the Fred Meyer-Smith's Merger, (i) Ronald W. Burkle
was elected Chairman of the Board of Directors of Fred Meyer, (ii) Fred Meyer
and certain of the Reporting Persons entered into the Smith's Registration
Rights Agreement (as defined below), (iii) Fred Meyer and Yucaipa entered into a
Supplemental Warrant Agreement as described below and (iv) Fred Meyer and
Yucaipa LLC, entered into a Management Services Agreement described below. In
connection with the Fred Meyer-Food 4 Less Merger, (i) the Smith's Registration
Rights Agreement was amended as described below and (ii) Fred Meyer, certain of
the Reporting Persons and certain other persons entered into the Food 4 Less
Registration Rights Agreement described below. In connection with the execution
of the Fred Meyer-Kroger Merger Agreement, Kroger and the Reporting Persons
entered into the Voting Agreement described below.
THE MANAGEMENT SERVICES AGREEMENT
On the Fred Meyer-Smith's Merger Closing Date, Fred Meyer entered into
the Management Services Agreement with Yucaipa LLC. Under the terms of the
Management Services Agreement, Yucaipa LLC, through its members, employees or
other designated representatives or agents, provides Fred Meyer and its
subsidiaries, subject to the supervision of Fred Meyer's Board of Directors,
management consultation and advice and Mr. Burkle serves as the Chairman of Fred
Meyer's Board of Directors. In addition, the Management Services Agreement
restricts the ability of Yucaipa LLC and its affiliates to (a) enter into
certain business combination or other transactions relating to Fred Meyer, (b)
acquire voting securities of Fred Meyer in excess of 15% of Fred Meyer's
outstanding voting securities, (c) participate in any proxy solicitation with
respect to such voting securities or (d) otherwise act to control or influence
the management, Board of Directors or policies of Fred Meyer.
The foregoing summary of the Management Services Agreement is qualified
in its entirety by reference to the agreement which is attached hereto as an
exhibit and incorporated herein by reference.
THE SUPPLEMENTAL WARRANT AGREEMENT
On May 23, 1996, Smith's issued to Yucaipa warrants to purchase
1,842,555 shares of Class C Common Stock, par value $.01 per share (the "Smith's
Class C Common Stock"), of Smith's (the "Warrants") at an initial exercise price
of $50.00 per share. On the Fred Meyer-Smith's Merger Closing Date, Fred Meyer
executed the
(Page 17 of 23)
<PAGE> 18
Supplemental Warrant Agreement providing that any holder of a Warrant will have
the right until the expiration date thereof to exercise such Warrant at the
existing exercise price for the number of shares of Common Stock to which a
holder of the number of shares of Smith's Class C Common Stock that would have
otherwise been deliverable upon the exercise of such Warrant would have been
entitled pursuant to the Fred Meyer-Smith's Merger Agreement if such Warrant had
been exercised in full immediately prior to the effective time of the Fred
Meyer-Smith's Merger. One-half of the Warrants are exercisable at the election
of Yucaipa on or prior to May 23, 2005, and one-half of the Warrants are
exercisable at the election or Yucaipa on or prior to May 23, 2006. The Warrants
are exercisable for an aggregate of 3,869,366 shares of Common Stock at an
exercise price of approximately $23.81 per share, for an aggregate purchase
price of $92,127,750.
The forgoing summary of the Supplemental Warrant Agreement is qualified
in its entirety by reference to the agreement which is attached hereto an
exhibit and incorporated herein by reference.
THE SMITH'S REGISTRATION RIGHTS AGREEMENT
On the Fred Meyer-Smith's Merger Closing Date, Fred Meyer entered into a
registration rights agreement (the "Smith's Registration Rights Agreement") with
Yucaipa, Arizona Partners, Smitty's Partners, Smitty's Partners II, SSV Partners
and certain other persons, each of which received shares of Common Stock in the
Fred Meyer-Smith's Merger. Under the terms of the Registration Rights Agreement,
the holders of a majority of the Registrable Securities (as defined in the
Smith's Registration Rights Agreement) held by Yucaipa and its affiliates and
their respective transferees (collectively, the "Yucaipa Holder Group") are
entitled, subject to certain restrictions, to two written requests upon Fred
Meyer for the registration under the Securities Act of 1933, as amended (the
"Securities Act") of all or part of their shares of Registrable Securities. In
addition, the Smith's Registration Rights Agreement also grants certain
"piggyback" and "shelf" registration rights to the Yucaipa Holder Group.
Fred Meyer will be obligated to pay its expenses associated with
registration of the Registrable Securities, regardless of whether any
registration statement required by the Registration Rights Agreement becomes
effective. In addition, Fred Meyer will provide customary securities law
indemnification to any party who participates in any registration effected under
the Smith's Registration Rights Agreement.
On the Fred Meyer-Food 4 Less Merger Closing Date, the Smith's
Registration Rights Agreement was amended to provide, among other things, that
shares of Common Stock acquired by Yucaipa, Ronald W. Burkle,
(Page 18 of 23)
<PAGE> 19
F4L Equity Partners, FFL Partners, Yucaipa Capital Fund and Yucaipa/F4L Partners
in the Fred Meyer-Food 4 Less Merger are "registrable securities" under the
Smith's Registration Rights Agreement.
The foregoing summaries of the Smith's Registration Rights Agreement and
the Amendment thereto are qualified in their entirety by reference to the
agreements which are attached hereto as exhibits and incorporated herein by
reference.
THE FOOD 4 LESS REGISTRATION RIGHTS AGREEMENT
On the Fred Meyer-Food 4 Less Merger Closing Date, the Company entered
into a Registration Rights Agreement with F4L Equity Partners, Ronald W. Burkle,
FFL Partners, Yucaipa Capital Fund, Yucaipa, Yucaipa/F4L Partners, Apollo
Investment Fund, L.P., Apollo Investment Fund III, L.P., Apollo UK Partners III,
L.P., Apollo Overseas Partners III, L.P. and F4L/AB Investors (the "Food 4 Less
Registration Rights Agreement"). Under the terms of the Food 4 Less Registration
Rights Agreement, Fred Meyer has filed with the Commission a shelf registration
statement on Form S-3 that registers for possible resale all of the Common Stock
acquired by those parties pursuant to the Fred Meyer-Food 4 Less Merger. The
Company is obligated to keep such shelf registration statement effective,
subject to certain conditions, until the one year anniversary date (the "Shelf
Termination Date") of the date such shelf registration statement has been
declared effective.
Fred Meyer has agreed to pay its expenses associated with the
registration of Registrable Securities (as defined in the Food 4 Less
Registration Rights Agreement). In addition, Fred Meyer will provide customary
indemnification to any party who participates in any registration effected under
the Food 4 Less Registration Rights Agreement.
The foregoing summary of the Food 4 Less Registration Rights Agreement
is qualified in its entirety by reference to the agreement which is attached
hereto as an exhibit and incorporated herein by reference.
VOTING AGREEMENT
On October 18, 1998, Fred Meyer, Kroger and Jobsite Holdings entered
into the Fred Meyer-Kroger Merger Agreement. Concurrently with the execution of
the Fred Meyer-Kroger Merger Agreement, the Reporting Persons entered into the
Voting Agreement with Kroger pursuant to which each Reporting Person agreed,
among other things, that, at any meeting of stockholders of Fred Meyer and in
any action by consent of the stockholders of Fred Meyer, to vote or, if
applicable, give consent with respect to all Subject Shares (as defined in the
Voting Agreement) held by such Reporting Person on the record date applicable to
the meeting or consent in favor of the Fred Meyer-Kroger Merger Agreement and
the Fred Meyer-Kroger Merger. In addition, (i) the Reporting Persons agreed to
grant, at the request of Kroger, an irrevocable proxy appointing Kroger to vote
or, if applicable, give consent with respect to all Subject Shares with regard
to the transactions contemplated by the Fred Meyer-Kroger Merger Agreement and
(ii) Kroger agreed to assume the obligations of Fred Meyer under the Smith's
Registration Rights Agreement. As of October 28, 1998, the shares subject to
voting agreements, including the Voting Agreement, represented approximately
9.5% of the aggregate voting power of Fred Meyer.
The foregoing summary of the Voting Agreement is qualified in its
entirety by reference to the agreement which is attached hereto as an exhibit
and incorporated herein by reference.
(Page 19 of 23)
<PAGE> 20
Item 7. Material to be Filed as Exhibits.
Exhibit 99.1 Agreement and Plan of Merger, dated as of October 18,
1998, by and between The Kroger Co., Jobsite Holdings,
Inc. and Fred Meyer, Inc. (Incorporated by reference to
Exhibit 99.1 to Fred Meyer's Report on Form 8-K, Number
1-13339).
Exhibit 99.2 Management Services Agreement, dated as of September 9,
1997, by and between Fred Meyer, Inc. and The Yucaipa
Companies LLC. (Incorporated by reference to Exhibit 1
to the Reporting Persons' Statement on Schedule 13D
dated September 9, 1997).
Exhibit 99.3 Supplemental Warrant Agreement, dated as of September 9,
1997, by and between Fred Meyer, Inc. and The Yucaipa
Companies. (Incorporated by reference to Exhibit 2 to
the Reporting Persons' Statement on Schedule 13D dated
September 9, 1997).
Exhibit 99.4 Registration Rights Agreement, dated as of September 9,
1997, by and between Fred Meyer, Inc. and the parties
listed on the signature pages thereto. (Incorporated by
reference to Exhibit 3 to the Reporting Persons'
Statement on Schedule 13D dated September 9, 1997).
Exhibit 99.5 Amendment to Registration Rights Agreement, dated as of
March 10, 1998, by and among Fred Meyer, Inc. and the
persons listed on the signature pages thereto.
(Incorporated by reference to Exhibit 99.2 to Amendment
No. 2 to the Reporting Persons' Statement on Schedule
13D date March 10, 1998).
Exhibit 99.6 Registration Rights Agreement, dated as of March 10,
1998, by and among Fred Meyer, Inc. and the persons
listed on the signature pages thereto. (Incorporated by
reference to Exhibit 99.1 to Amendment No. 2 to the
Reporting Persons' Statement on Schedule 13D dated March
10, 1998).
Exhibit 99.7 Voting Agreement, dated as of October 18, 1998, by and
among The Kroger Co. and the parties listed on the
signature pages thereto.
(Page 20 of 23)
<PAGE> 21
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.
Dated: October 28, 1998 Yucaipa Arizona Partners, L.P.
Yucaipa Smitty's Partners, L.P.
Yucaipa Smitty's Partners II, L.P.
Yucaipa SSV Partners, L.P.
FFL Partners
Yucaipa/F4L Partners
By: The Yucaipa Companies
Its General Partner
By: /s/ Ronald W. Burkle
------------------------------------------
Name: Ronald W. Burkle
Title: General Partner
Dated: October 28, 1998 The Yucaipa Companies
By: /s/ Ronald W. Burkle
------------------------------------------
Name: Ronald W. Burkle
Title: General Partner
Dated: October 28, 1998 F4L Equity Partners, L.P.
Yucaipa Capital Fund
By: Yucaipa Capital Advisors, Inc.
Its General Partner
By: /s/ Ronald W. Burkle
------------------------------------------
Name: Ronald W. Burkle
Title:
Dated: October 28, 1998 Fred Meyer/Smith's Foundation
By: /s/ Ronald W. Burkle
------------------------------------------
Name: Ronald W. Burkle
Title:
(Page 21 of 23)
<PAGE> 22
Dated: October 28, 1998
/s/ Ronald W. Burkle
------------------------------------------
Ronald W. Burkle
(Page 22 of 23)
<PAGE> 23
EXHIBIT INDEX
Exhibit 99.1 Agreement and Plan of Merger, dated as of October 18,
1998, by and between The Kroger Co., Jobsite Holdings,
Inc. and Fred Meyer, Inc. (Incorporated by reference to
Exhibit 99.1 to Fred Meyer's Report on Form 8-K, Number
1-13339).
Exhibit 99.2 Management Services Agreement, dated as of September 9,
1997, by and between Fred Meyer, Inc. and The Yucaipa
Companies LLC. (Incorporated by reference to Exhibit 1
to the Reporting Persons' Statement on Schedule 13D
dated September 9, 1997).
Exhibit 99.3 Supplemental Warrant Agreement, dated as of September 9,
1997, by and between Fred Meyer, Inc. and The Yucaipa
Companies. (Incorporated by reference to Exhibit 2 to
the Reporting Persons' Statement on Schedule 13D dated
September 9, 1997).
Exhibit 99.4 Registration Rights Agreement, dated as of September 9,
1997, by and between Fred Meyer, Inc. and the parties
listed on the signature pages thereto. (Incorporated by
reference to Exhibit 3 to the Reporting Persons'
Statement on Schedule 13D dated September 9, 1997).
Exhibit 99.5 Amendment to Registration Rights Agreement, dated as of
March 10, 1998, by and among Fred Meyer, Inc. and the
persons listed on the signature pages thereto.
(Incorporated by reference to Exhibit 99.2 to Amendment
No. 2 to the Reporting Persons' Statement on Schedule
13D date March 10, 1998).
Exhibit 99.6 Registration Rights Agreement, dated as of March 10,
1998, by and among Fred Meyer, Inc. and the persons
listed on the signature pages thereto. (Incorporated by
reference to Exhibit 99.1 to Amendment No. 2 to the
Reporting Persons' Statement on Schedule 13D dated March
10, 1998).
Exhibit 99.7 Voting Agreement, dated as of October 18, 1998, by and
among The Kroger Co. and the parties listed on the
signature pages thereto.
(Page 23 of 23)
<PAGE> 1
EXHIBIT 99.7
VOTING AGREEMENT
VOTING AGREEMENT, dated as of October 18, 1998 (this "Agreement"), among
the stockholders identified on Annex A (each, a "Stockholder"; collectively, the
"Stockholders") and The Kroger Co., an Ohio corporation ("Kroger").
WHEREAS, Fred Meyer, Inc., a Delaware corporation ("Fred Meyer"), Kroger
and Jobsite Holdings, Inc., a Delaware corporation and a wholly owned subsidiary
of Kroger ("Merger Sub"), are contemporaneously entering into an Agreement and
Plan of Merger, dated as of this date (the "Merger Agreement"), which provides,
among other things, for the merger of Merger Sub with and into Fred Meyer (the
"Merger");
WHEREAS, as a condition to their willingness to enter into the Merger
Agreement, Kroger and Merger Sub have requested that the Stockholders make
certain agreements with respect to certain shares of Common Stock, par value
$.01 per share ("Shares"), of Fred Meyer beneficially owned by the Stockholders,
upon the terms and subject to the conditions of this Agreement; and
WHEREAS, in order to induce Kroger and Merger Sub to enter into the
Merger Agreement, the Stockholders are willing to make certain agreements with
respect to the Subject Shares (as defined);
NOW, THEREFORE, in consideration of the promises and the mutual
covenants and agreements set forth in this Agreement, the parties agree as
follows:
1. Voting Agreements; Proxy.
(a) For so long as this Agreement is in effect, in any meeting of
stockholders of Fred Meyer, and in any action by consent of the stockholders of
Fred Meyer, each Stockholder shall vote, or, if applicable, give consents with
respect to, all of the Subject Shares that are held by that Stockholder on the
record date applicable to the meeting or consent in favor of the Merger
Agreement and the Merger contemplated by the Merger Agreement, as the Merger
Agreement may be modified or amended from time to time in a manner not adverse
to the Stockholders. Each Stockholder shall use his best efforts to cast that
Stockholder's vote or give that Stockholder's consent in accordance with the
procedures communicated to that Stockholder by Fred Meyer relating thereto so
that the vote or consent shall be duly counted for purposes of determining that
a quorum is present and for purposes of recording the results of that vote or
consent.
(b) Upon the reasonable written request of Kroger, in furtherance of
the transactions contemplated in this Agreement and by the Merger Agreement and
in order to secure the performance of each Stockholder's duties under Section
1(a) of this Agreement, each Stockholder shall promptly execute, in accordance
with the provisions of Section 212 of the Delaware General Corporation Law, and
deliver to Kroger an
<PAGE> 2
irrevocable proxy, substantially in the form attached as Exhibit A, and
irrevocably appoint Kroger or its designees, with full power of substitution,
its attorney and proxy to vote or, if applicable, to give consent with respect
to, all Shares constituting Subject Shares at the time of the relevant record
date with regard to any of the matters referred to in paragraph (a) above at any
meeting of the stockholders of Fred Meyer, or in connection with any action by
written consent by the stockholders of Fred Meyer. Each Stockholder acknowledges
and agrees that this proxy, if and when given, shall be coupled with an
interest, shall constitute, among other things, an inducement for Kroger to
enter into the Merger Agreement, shall be irrevocable and shall not be
terminated by operation of law or otherwise upon the occurrence of any event and
that no subsequent proxies with respect to such Subject Shares shall be given
(and if given shall not be effective); provided, however, that any such proxy
shall terminate automatically and without further action on behalf of the
Stockholders upon the termination of this Agreement.
2. Covenants. For so long as this Agreement is in effect, each
Stockholder agrees not to (i) sell, transfer, pledge, assign, hypothecate,
encumber, tender or otherwise dispose of, or enter into any contract with
respect to the sale, transfer, pledge, assignment, hypothecation, encumbrance,
tender or other disposition of (each such disposition or contract, a
"Transfer"), a number of Subject Shares which, when aggregated with all
Transfers made after the date hereof by other Stockholders who are party to this
Agreement, would exceed 10% of the total number of (A) Subject Shares set forth
on Schedule A hereto plus (B) any Shares the Stockholders then have the right to
acquire, or will have the right to acquire within 60 days, pursuant to options
to purchase Shares granted to the Stockholders by Fred Meyer; (ii) grant any
proxies with respect to any shares that then constitute Subject Shares, deposit
any of the Subject Shares into a voting trust or enter into a voting or option
agreement with respect to any of the Subject Shares; (iii) subject to Section 6,
directly or indirectly, solicit, initiate, encourage or otherwise facilitate any
inquiries or the making of any proposal or offer with respect to an Acquisition
Proposal (as defined in the Merger Agreement) or engage in any negotiation
concerning, or provide any confidential information or data to, or have any
discussions with any person relating to, an Acquisition Proposal; or (iv) take
any action which would make any representation or warranty of any Stockholder in
this Agreement untrue or incorrect or prevent, burden or materially delay the
consummation of the transactions contemplated by this Agreement; provided,
however, that nothing in the foregoing provisions of this Section 2 shall
prohibit any Stockholder from effecting any Transfer of Subject Shares (A)
pursuant to any bona fide charitable gift or by will or applicable laws of
descent and distribution, (B) for estate planning purposes, if the transferee
pursuant to this clause (B) agrees in writing to be bound by the provisions of
this agreement, or (C) pursuant to a pledge for purposes of securing customary
margin or similar loans or pursuant to the writing of options or in connection
with any hedging, derivative or similar transaction (and taking other necessary
or customary steps related thereto, including, without limitation, Transferring
any certificate evidencing the shares to a lender or trustee or a nominee
thereof), if notwithstanding such Transfer made pursuant to this clause (C),
-2-
<PAGE> 3
the Stockholder retains the power to vote such Shares in accordance with the
terms of this Agreement and for as long as this Agreement is in effect. No
Transfer made pursuant to the proviso of the immediately preceding sentence
shall be counted in determining whether the Stockholders are in compliance with
the 10% limitation set forth in clause (i) of the immediately preceding
sentence. Notwithstanding anything to the contrary contained in this Agreement,
no Stockholder shall effect any Transfer of Subject Shares that would prevent
the business combination to be effected pursuant to the Merger from being
accounted for as a "pooling-of-interests" under GAAP (as defined in the Merger
Agreement) or the rules and regulations of the SEC (as defined in the Merger
Agreement). As used in this Agreement, "person" shall have the meaning specified
in Sections 3(a)(9) and 13(d)(3) of the Securities Exchange Act of 1934, as
amended.
3. Representations and Warranties of Stockholders. Each Stockholder
severally and not jointly represents and warrants to Kroger that:
(a) Capacity; No Violations. The Stockholder has the legal capacity
to enter into this Agreement and to consummate the transactions contemplated by
this Agreement. This Agreement has been duly executed and delivered by the
Stockholder and constitutes a valid and binding agreement of the Stockholder
enforceable against the Stockholder in accordance with its terms except as such
enforceability may be limited by applicable bankruptcy, insolvency and similar
laws affecting creditors' rights generally and general principles of equity
(whether considered in a proceeding in equity or at law). The execution,
delivery and performance by the Stockholder of this Agreement will not (i)
conflict with, require a consent, waiver or approval under, or result in a
breach or default under, any of the terms of any contract, commitment or other
obligation to which the Stockholder is a party or by which the Stockholder is
bound; (ii) violate any order, writ, injunction, decree or statute, or any law,
rule or regulation applicable to the Stockholder or the Subject Shares; or (iii)
result in the creation of, or impose any obligation on the Stockholder to
create, any Lien upon the Subject Shares that would prevent the Stockholder from
voting the Subject Shares. In this Agreement, "Lien" shall mean any lien,
pledge, security interest, claim, third party right or other encumbrance.
(b) Subject Shares. As of the date of this Agreement, the
Stockholder is the beneficial owner of and has the power to vote or direct the
voting of the Subject Shares free and clear of any Liens that would prevent the
Stockholder from voting such Subject Shares. As of the date of this Agreement,
the Subject Shares are the only shares of any class of capital stock of Fred
Meyer which the Stockholder has the right, power or authority (sole or shared)
to sell or vote, and, other than options or warrants to purchase Shares held by
the Stockholder as of this date, the Stockholder does not have any right to
acquire, nor is it the beneficial owner of, any other shares of any class of
capital stock of Fred Meyer or any securities convertible into or exchangeable
or exercisable for any shares of any class of capital stock of Fred Meyer. The
Stockholder is not a party to any
-3-
<PAGE> 4
contracts (including proxies, voting trusts or voting agreements) that would
prevent the Stockholder from voting the Subject Shares.
4. Expenses. Each party to this Agreement shall pay its own
expenses incurred in connection with this Agreement.
5. Specific Performance. The Stockholder acknowledges and agrees
that if he fails to perform any of its obligations under this Agreement,
immediate and irreparable harm or injury would be caused to Kroger for which
money damages would not be an adequate remedy. In that event, the Stockholder
agrees that Kroger shall have the right, in addition to any other rights it may
have, to specific performance of this Agreement. Accordingly, if Kroger should
institute an action or proceeding seeking specific enforcement of the provisions
of this Agreement, the Stockholder hereby waives the claim or defense that
Kroger has an adequate remedy at law and hereby agrees not to assert in that
action or proceeding the claim or defense that a remedy at law exists. The
Stockholder further agrees to waive any requirements for the securing or posting
of any bond in connection with obtaining any equitable relief.
6. Stockholder Capacity. No person bound by this Agreement who is
or becomes during the term hereof a director or officer of the Company makes any
agreement or understanding herein in his capacity as such director or officer.
Each Stockholder signs solely in his capacity as the beneficial owner of, or the
general partner of a partnership which is the beneficial owner of, that
Stockholder's Subject Shares and nothing herein shall limit or affect any
actions taken by a Stockholder in his or its capacity as an officer or director
of Fred Meyer to the extent specifically permitted by the Merger Agreement.
Nothing in this Agreement shall be deemed to constitute a transfer of the
beneficial ownership of the Subject Shares by any Stockholder.
7. Registration Rights Agreement. Kroger acknowledges that Fred
Meyer and the Stockholders are party to a Registration Rights Agreement dated as
of September 9, 1997, as amended by the Amendment to Registration Rights
Agreement dated March 10, 1998 (as amended, the "Stockholder Registration Rights
Agreement") pursuant to which Fred Meyer agreed to provide certain registration
rights to the Stockholders. Kroger hereby agrees that, effective as of the
Effective Time of the Merger, it shall assume the obligations of Fred Meyer
under the Stockholder Registration Rights Agreement.
8. Notices. All notices and other communications given or made
pursuant this Agreement shall be in writing and shall be deemed to have been
duly given or made as of the date of receipt and shall be delivered personally
or mailed by registered or certified mail (postage prepaid, return receipt
requested), sent by overnight courier or sent by telecopy, to the applicable
party at the following addresses or telecopy numbers (or at any other address or
telecopy number for a party as shall be specified by like notice):
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<PAGE> 5
If to Kroger:
The Kroger Corp.
1014 Vine Street
Cincinnati, Ohio 45202
Attention: Paul W. Heldman, Esq.
Telecopy: (513) 762-1400
With a copy to:
Fried Frank Harris Shriver & Jacobson
1 New York Plaza
New York, New York 10004
Attention: Arthur Fleischer, Jr., Esq.
Telecopy: (212) 859-4000
If to any Stockholder:
The Yucaipa Companies, LLC
1000 Santa Monica Boulevard, Fifth Floor
Los Angeles, California 90067
Attention: Ronald W. Burkle
Telecopy: (310) 789-7201
With a copy to:
Latham & Watkins
633 West Fifth Street, Suite 4000
Los Angeles, California 90071
Attention: Thomas C. Sadler, Esq.
Telecopy: (213) 891-8763
With a copy to:
Cleary, Gottlieb, Steen & Hamilton
One Liberty Plaza
New York, New York 10006
Attention: Daniel S. Sternberg, Esq.
Telecopy: (212) 225-3999
9. Parties in Interest. This Agreement shall inure to the benefit
of and be binding upon the parties and their respective successors and assigns;
provided, however, that any successor in interest or assignee shall agree to be
bound by the provisions of this Agreement. Nothing in this Agreement, express or
implied, is intended to confer upon
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<PAGE> 6
any Person other than Kroger, the Stockholders or their successors or assigns,
any rights or remedies under, or by reason, of this Agreement.
10. Entire Agreement; Amendments. This Agreement contains the entire
agreement between the Stockholders and Kroger with respect to the subject matter
of this Agreement and supersedes all prior and contemporaneous agreements and
understandings, oral or written, with respect to these transactions. This
Agreement may not be changed, amended or modified orally, but may be changed
only by an agreement in writing signed by the party against whom any waiver,
change, amendment, modification or discharge may be sought.
11. Assignment. No party to this Agreement may assign any of its
rights or obligations under this Agreement without the prior written consent of
the other party to this Agreement, except that (a) Kroger may assign its rights
and obligations under this Agreement to any of its direct or indirect wholly
owned subsidiaries (including Merger Sub), but no transfer shall relieve Kroger
of its obligations under this Agreement if the transferee does not perform its
obligations, and (b) any Stockholder may transfer Subject Shares to the extent
permitted by Section 2 of this Agreement.
12. Headings. The section headings in this Agreement are for
convenience only and shall not affect the construction of this Agreement.
13. Counterparts. This Agreement may be executed in any number of
counterparts, each of which, when executed, shall be deemed to be an original
and all of which together shall constitute one and the same document.
14. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Delaware without regard to its
principles of conflicts of laws.
15. Termination. This Agreement shall terminate automatically and
without further action on behalf of any party at the earlier of (i) the
Effective Time (as defined in the Merger Agreement) and (ii) the date the Merger
Agreement is terminated pursuant to its terms.
16. Subject Shares. The term "Subject Shares" shall mean the Shares
set forth opposite each Stockholder's name on Schedule A hereto, together with
any Shares of capital stock of Fred Meyer acquired by the Stockholder after the
date hereof over which the Stockholder has the power to vote or power to direct
the voting.
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<PAGE> 7
IN WITNESS WHEREOF, Kroger and the Stockholders have caused this
Agreement to be duly executed and delivered on the day and year first above
written.
THE KROGER CO.
By: /s/ Paul Heldman
-----------------------------------------
Name:
Title:
THE YUCAIPA COMPANIES
By: /s/ Ronald W. Burkle
-----------------------------------------
Name: Ronald W. Burkle
Title: General Partner
YUCAIPA SSV PARTNERS, L.P.
By: The Yucaipa Companies
Its: General Partner
By: /s/ Ronald W. Burkle
-----------------------------------------
Name: Ronald W. Burkle
Title: General Partner
YUCAIPA SMITTY'S PARTNERS, L.P.
By: The Yucaipa Companies
Its: General Partner
By: /s/ Ronald W. Burkle
-----------------------------------------
Name: Ronald W. Burkle
Title: General Partner
YUCAIPA SMITTY'S PARTNERS II, L.P.
By: The Yucaipa Companies
Its: General Partner
By: /s/ Ronald W. Burkle
-----------------------------------------
Name: Ronald W. Burkle
Title: General Partner
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<PAGE> 8
YUCAIPA ARIZONA PARTNERS, L.P.
By: The Yucaipa Companies
Its: General Partner
By: /s/ Ronald W. Burkle
-----------------------------------------
Name: Ronald W. Burkle
Title: General Partner
F4L EQUITY PARTNERS, L.P.
By: Yucaipa Capital Advisors, Inc.
as general partner
By: /s/ Ronald W. Burkle
-----------------------------------------
Name:
Title:
RONALD W. BURKLE
/s/ Ronald W. Burkle
-----------------------------------------
Ronald W. Burkle, as an individual
FFL PARTNERS
By: /s/ Ronald W. Burkle
-----------------------------------------
Name: Ronald W. Burkle
Title:
YUCAIPA CAPITAL FUND, L.P.
By: Yucaipa Capital Advisors, Inc.
as general partner
By: /s/ Ronald W. Burkle
------------------------------------
Name: Ronald W. Burkle
Title:
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<PAGE> 9
YUCAIPA/F4L PARTNERS
By: The Yucaipa Companies
as general partner
By: /s/ Ronald W. Burkle
------------------------------------
Name: Ronald W. Burkle
Title:
By: Yucaipa Capital Fund, L.P.,
as general partner
By: Yucaipa Capital Advisors, Inc.
as general partner
By: /s/ Ronald W. Burkle
------------------------------
Name: Ronald W. Burkle
Title:
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<PAGE> 10
SCHEDULE A
<TABLE>
<CAPTION>
STOCKHOLDER NAME SHARES OWNED
- ---------------- ------------
<S> <C>
The Yucaipa Companies................................................. 4,856,211(*)
Yucaipa SSV Partners, L.P............................................. 2,744,595
Yucaipa Smitty's Partners, L.P........................................ 631,400
Yucaipa Smitty's Partners II, L.P..................................... 287,264
Yucaipa Arizona Partners, L.P......................................... 574,522
F4L Equity Partners, L.P.............................................. 3,798,526
Ronald W. Burkle...................................................... 827,321
FFL Partners.......................................................... 365,429
Yucaipa Capital Fund, L.P............................................. 335,712
Yucaipa/F4L Partners.................................................. 79,719
-----------
14,500,699
</TABLE>
- ----------
(*) Includes 3,869,366 shares issuable upon exercise of a
currently-exercisable warrant.
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<PAGE> 11
EXHIBIT A
IRREVOCABLE PROXY
In order to secure the performance of the duties of the undersigned
pursuant to the Director Voting Agreement, dated as of October 18, 1998 (the
"Voting Agreement") between the undersigned and The Kroger Co., an Ohio
corporation ("Kroger"), a copy of such agreement being attached hereto and
incorporated by reference herein, the undersigned hereby irrevocably appoints
Joseph A. Pichler, John T. La Macchia and T. Ballard Morton, Jr., and each of
them, the attorneys, agents and proxies, with full power of substitution in each
of them, for the undersigned and in the name, place and stead of the
undersigned, to vote or, if applicable, to give written consent, in such manner
as each such attorney, agent and proxy or his substitute shall in his sole
discretion deem proper to record such vote (or consent) in the manner set forth
in Section 1 of the Voting Agreement with respect to all shares of Common Stock,
par value $.01 per share (the "Shares"), of Fred Meyer, Inc., a Delaware
corporation (the "Company"), which the undersigned is or may be entitled to vote
at any meeting of the Company held after the date hereof, whether annual or
special and whether or to an adjourned meeting, or, if applicable, to give
written consent with respect thereto. This Proxy is coupled with an interest,
shall be irrevocable and binding on any successor in interest of the undersigned
and shall not be terminated by operation of law or otherwise upon the occurrence
of any event (other than as provided in Section 15 of the Voting Agreement),
including, without limitation, the death or incapacity of the undersigned. This
Proxy shall operate to revoke any prior proxy as to the Shares heretofore
granted by the undersigned. This Proxy shall terminate upon the termination of
the Voting Agreement. This Proxy has been executed in accordance with Section
212 of the Delaware General Corporation Law.
Dated: October __, 1998 ________________________
[Name]
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