SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-A/A
(Amendment No. 2)
For Registration of Certain Classes of Securities
Pursuant to Section 12(b) or 12(g) of the
Securities Exchange Act of 1934
DELCHAMPS, INC.
(Exact name of registrant as specified in its charter)
Alabama 63-0245434
(State of incorporation (I.R.S. Employer
or organization) Identification No.)
305 Delchamps Drive, Mobile, Alabama 36602
(Address of Principal Executive Offices) (Zip Code)
Securities to be registered pursuant to Section 12(b) of the Act: None.
Title of Each Class Name of Each Exchange on Which
to be so Registered: Each Class is to be Registered
None None
If this Form relates to the registration of a class of debt
securities and is effective upon filing pursuant to General
Instruction A(c)(1) please check the following box. / /
If this Form relates to the registration of a class of debt
securities and is to become effective simultaneously with the
effectiveness of a concurrent registration statement under the
Securities Act of 1933 pursuant to General Instruction A(c)(2)
please check the following box. / /
Securities to be registered pursuant to Section 12(g) of the
Act:
PREFERRED SHARE PURCHASE RIGHTS
(Title of Class)
The undersigned registrant hereby further amends the
following items and exhibits of its Registration Statement on
Form 8-A (the "Form 8-A"), dated October 18, 1988, registering
Preferred Share Purchase Rights, as previously amended by
Amendment No. 1 dated November 4, 1992, in the manner set forth
below.
Item 1. Description of Registrant's Securities to be
Registered.
On July 8, 1997, Delchamps, Inc. (the "Company") entered
into an Agreement and Plan of Merger by and among Jitney-Jungle
Stores of America, Inc., Delta Acquisition Corporation, a
wholly-owned subsidiary of Jitney-Jungle Stores of America,
Inc. (together, "Jitney-Jungle"), and the Company (the "Merger
Agreement"). On July 8, 1997, prior to the execution of the
Merger Agreement, the Company adopted and executed a Second
Amendment (the "Second Amendment") to the Company's Rights
Agreement ("Rights Agreement") dated as of October 14, 1988
with First Alabama Bank as Rights Agent, as previously amended
by Amendment to Rights Agreement dated as of October 16, 1992
(the "First Amendment"). The description of the Preferred Share
Purchase Rights contained in Item 1 of the Form 8-A is attached
hereto as Exhibit 1 and is incorporated herein by reference.
The Second Amendment amends the Rights Agreement, inter
alia, by rescinding the First Amendment; exempting (1) the
approval, execution, delivery, amendment and consummation of
the Merger Agreement, (2) an all-cash tender offer by Jitney-
Jungle for any and all shares of Common Stock of the Company,
and (3) Jitney-Jungle and its affiliates and associates, from
the definitions of "Acquiring Person," "Beneficial Owner," and
"Beneficially Owned" in the Rights Agreement, and from the
restrictions imposed by the Rights Agreement on Acquiring
Persons generally; and providing for the Preferred Share
Purchase Rights to expire immediately prior to the acceptance
for purchase of shares of Common Stock by Jitney-Jungle
pursuant to its tender offer. A copy of the Second Amendment is
attached hereto as Exhibit 4 and is incorporated herein by
reference.
Item 2. Exhibits.
Exhibit No. Description
(1) Item 1 of the Form 8-A.
(2) Rights Agreement dated as of October 14, 1988
between the Company and First Alabama Bank as
Rights Agent (the "Rights Agreement")
(previously filed as Exhibit 1 to the Form 8-A,
and incorporated herein by reference).
(3) First Amendment dated as of October 16, 1992 to
the Rights Agreement (previously filed as
Exhibit 1 to Amendment No. 1 on Form 8, dated
November 4, 1992 to the Form 8-A, and
incorporated herein by reference).
(4) Second Amendment dated as of July 8, 1997 to the
Rights Agreement.
Signatures
Pursuant to the requirements of Section 12 of the
Securities Exchange Act of 1934, the registrant has duly caused
this amendment to the registration statement to be signed on
its behalf by the undersigned, thereto duly authorized.
DELCHAMPS, INC.
Date: July 8, 1997 By:/s/ Timothy E. Kullman
----------------------------
Timothy E. Kullman
Senior Vice President,
Chief Financial Officer,
Treasurer and Secretary
EXHIBIT 1
Item 1. Description of Securities To Be Registered.
On October 14, 1988, the Board of Directors of Delchamps, Inc.
(the "Company") declared a dividend of one preferred share purchase
right (a "Right") for each outstanding share of common stock, par
value $.01 per share (the "Common Shares"), of the Company. The
dividend is payable on October 27, 1988 (the "Record Date") to the
stockholders of record on that date. Each Right entitles the
registered holder to purchase from the Company one one-hundredth of a
share of Series A Junior Participating Preferred Stock, no par value,
(the "Preferred Shares"), of the Company at a price of $70 per one
one-hundredth of a Preferred Share (the "Purchase Price"), subject to
adjustment. The description and terms of the Rights are set forth in
a Rights Agreement (the "Rights Agreement") between the Company and
First Alabama Bank, as Rights Agent (the "Rights Agent").
Until the earlier to occur of (i) 10 days following a public
announcement that a person or group of affiliated or associated
persons (an "Acquiring Person") have acquired beneficial ownership of
15% or more of the outstanding Common Shares or (ii) 10 business
days (or such later date as may be determined by action of the Board
of Directors prior to such time as any Person becomes an Acquiring
Person) following the commencement of, or announcement of an intention
to make, a tender offer or exchange offer the consummation of
which would result in the beneficial ownership by a person or group
of 15% or more of such outstanding Common Shares (the earlier of such
dates being called the "Distribution Date"), the Rights will be
evidenced, with respect to any of the Common Share certificates
outstanding as of the Record Date, by such Common Share certificate
with a copy of this Summary of Rights attached thereto. The Board
has decided to delay the Distribution Date with respect to the tender
offer made by Southern Acquisition Corporation, a wholly owned
subsidiary of the Great Atlantic & Pacific Tea Company, Inc., to
purchase all the Company's outstanding Common Stock, pursuant to an
Offer to Purchase dated October 5, 1988 and accompanying letter of
transmittal.
Common Shares beneficially owned by any Person who is a party to
either the Agreement Among Shareholders dated as of October 8, 1987
or the Agreement Among Shareholders dated as of October 14, 1988 or
any renewal or extension of either such agreement (such agreements
being referred to as the "Stockholders' Agreements") shall not be
deemed to be beneficially owned by any other Person who is a party to
the Stockholders' Agreements. Further, Common Shares held by any
employee benefit plan shall not be deemed to be beneficially owned by
any trustee or administrator or administrative committee thereunder
if pursuant to the terms of such plan, Common Shares allocated to the
accounts of participants therein may be voted or tendered in a tender
or exchange offer at the discretion of the participants, and Common
Shares not allocated to the account of any participant are to be
voted in the same way that a majority of the allocated Common Shares
are voted, and Common Shares not allocated to the account of any
participant are to be tendered in the same proportion that allocated
Common Shares are tendered.
The Rights Agreement provides that, until the Distribution Date,
the Rights will be transferred with and only with the Common Shares.
Until the Distribution Date (or earlier redemption or expiration of
the Rights), new Common Share Certificates issued after the Record
Date, upon transfer or new issuance of Common Shares, will contain a
notation incorporating the Rights Agreement by reference. Until the
Distribution Date (or earlier redemption or expiration of the
Rights), the surrender for transfer of any certificates for Common
Shares, outstanding as of the Record Date, even without such notation
or a copy of this Summary of Rights being attached thereto, will also
constitute the transfer of the Rights associated with the Common
Shares represented by such certificate. As soon as practicable
following the Distribution Date, separate certificates evidencing
the Rights ("Right Certificates") will be mailed to holders of record
of the Common Shares as of the close of business on the Distribution
Date and such separate Right Certificates alone will evidence the
Rights.
The Rights are not exercisable until the Distribution Date. The
Rights will expire on October 27, 1998 (the "Final Expiration Date"),
unless the Final Expiration Date is extended or unless the Rights are
earlier redeemed by the Company, in each case, as described below.
The Purchase Price payable, and the number of Preferred Shares or
other securities or property issuable, upon exercise of the Rights
are subject to adjustment from time to time to prevent dilution (i)
in the event of a stock dividend on, or a subdivision, combination or
reclassification of, the Preferred Shares, (ii) upon the grant to
holders of the Preferred Shares of certain rights or warrants to
subscribe for or purchase Preferred Shares at a price, or securities
convertible into Preferred Shares with a conversion price, less than
the then current market price of the Preferred Shares or (iii) upon
the distribution to holders of the Preferred Shares of evidence of
indebtedness or assets (excluding regular periodic cash dividends paid
out of earnings or retained earnings or dividends payable in Preferred
Shares) or of subscription rights or warrants (other than those referred
to above).
The number of outstanding Rights and the number of one one-
hundredths of a Preferred Share issuable upon exercise of each Right
are also subject to adjustment in the event of a stock split of the
Common Shares or a Stock dividend on the Common Shares payable in
Common Shares or subdivisions, consolidations or combinations of the
Common Shares occurring, in any such case, prior to the Distribution
Date.
Preferred Shares purchasable upon exercise of the Rights will not
be redeemable. Each Preferred Share will be entitled to a minimum
preferential quarterly dividend payment of $1 per share but will be
entitled to an aggregate dividend of 100 times the dividend declared
per Common Share. In the event of liquidation, the holders of the
Preferred Shares will be entitled to a minimum preferential
liquidation payment of $100 per share but will be entitled to an
aggregate payment of 100 times the payment made per Common Share.
Each Preferred Share will have 100 votes, voting together with the
Common Shares. Finally, in the event of any merger, consolidation or
other transaction in which Common Shares are exchanged, each
Preferred Share will be entitled to receive 100 times the amount
received per Common Share. These rights are protected by customary
antidilution provisions.
Because of the nature of the Preferred Shares' dividend,
liquidation and voting rights, the value of the one one-hundredth
interest in a Preferred Share purchasable upon exercise of each Right
should approximate the value of one Common Share.
In the event that the Company is acquired in a merger or other
business combination transaction or 50% or more of its consolidated
assets or earning power are sold, proper provision will be made so
that each holder of a Right will thereafter have the right to
receive, upon the exercise thereof at the then current exercise price
of the Right, that number of shares of common stock of the acquiring
company which at the time of such transaction will have a market
value of two times the exercise price of the Right. In the event
that (i) any person or group of affiliated or associated persons
becomes the beneficial owner of 15% or more of the outstanding Common
Shares (unless such person first acquired 15% or more of the
outstanding Common Shares by a purchase pursuant to a tender offer
for all of the Common Shares for cash, which purchase increases such
person's beneficial ownership to 80% or more of the outstanding Common
Shares) or (ii) during such time as there is an Acquiring Person, there
shall be a reclassification of securities or a recapitalization or
reorganization of the Company or other transaction or series of
transactions involving the Company which has the effect of increasing
by more than 1% the proportionate share of the outstanding shares of
any class of equity securities of the Company or any of its
subsidiaries beneficially owned by the Acquiring Person, proper
provision shall be made so that each holder of a Right, other than
Rights beneficially owned by the Acquiring Person (which will
thereafter be void), will thereafter have the right to receive upon
exercise that number of Common Shares having a market value of two
times the exercise price of the Right.
At any time after the acquisition by a person or group of
affiliated or associated persons of beneficial ownership of 15% or
more of the outstanding Common Shares and prior to the acquisition by
such person or group of 50% or more of the outstanding Common Shares,
the Board of Directors of the Company may exchange the Rights (other
than Rights owned by such person or group which have become void), in
whole or in part, at an exchange ratio of one Common Share, or one
one-hundredth of a Preferred Share (or of a share of a class or
series of the Company's preferred stock having equivalent rights,
preferences and privileges), per Right (subject to adjustment).
With certain exceptions, no adjustment in the Purchase Price will
be required until cumulative adjustments require an adjustment of at
least 1% in such Purchase Price. No fractional Preferred Shares will
be issued (other than fractions which are integral multiples of one
one-hundredth of a Preferred Share, which may, at the election of the
Company, be evidenced by depositary receipts) and in lieu thereof, an
adjustment in cash will be made based on the market price of the
Preferred Shares on the last trading day prior to the date of
exercise.
At any time prior to the acquisition by a person or group of
affiliated or associated persons of beneficial ownership of 50% or
more of the outstanding Common Shares, the Board of Directors of the
Company may redeem the Rights in whole, but not in part, at a price
of $.01 per Right (the "Redemption Price"). The redemption of the
rights may be made effective at such time on such basis and with such
conditions as the Board of Directors in its sole discretion may establish.
Immediately upon any redemption of the Rights, the right to exercise the
Rights will terminate and the only right of the holders of Rights will
be to receive the Redemption Price.
The terms of the Rights may be amended by the Board of Directors
of the Company without the consent of the holders of the Rights,
except that from and after such time as any person becomes an
Acquiring Person no such amendment may adversely affect the interests
of the holders of the Rights and except that certain percentage
thresholds may not be lowered.
Until a Right is exercised, the holder thereof, as such, will have
no rights as a stockholder of the Company, including, without
limitation, the right to vote or to receive dividends.
The Rights Agreement, dated as of October 14, 1988, between the
Company and First Alabama Bank as Rights Agent, specifying the terms
of the Rights, the press release announcing the declaration of the
Rights and a letter to the Company's shareholders, dated October 17,
1988, explaining the Rights, are attached hereto as exhibits and are
incorporated herein by reference. The foregoing description of the
Rights is qualified by reference to such exhibits.
EXHIBIT 4
SECOND AMENDMENT TO RIGHTS AGREEMENT
AMENDMENT, dated and effective as of July 8, 1997, to the
Rights Agreement, dated as of October 14, 1988 (the "Rights
Agreement"), between Delchamps, Inc., an Alabama corporation
(the "Company"), and AmSouth Bank, successor to First Alabama
Bank (the "Rights Agent"), as heretofore amended by an
Amendment to Rights Agreement, dated as of October 16, 1992,
between the Company and the Rights Agent (the "First
Amendment").
The Company and the Rights Agent have heretofore executed
and entered into the Rights Agreement and the First Amendment.
Pursuant to Section 27 of the Rights Agreement, the Company and
the Rights Agent may amend or supplement the Rights Agreement
in accordance with the provisions of Section 27 thereof. All
acts and things necessary to make this Second Amendment a valid
agreement according to its terms have been done and performed,
and the execution and delivery of this Agreement by the Company
and the Rights Agent have been in all respects authorized by
the Company and the Rights Agent.
In consideration of the foregoing premises and mutual
agreements set forth in the Rights Agreement as heretofore
amended and this Amendment, the parties hereby agree as
follows:
1. The Rights Agreement as heretofore amended is hereby
further amended by deleting the First Amendment in its entirety
so as to restore the Rights Agreement (subject to the further
amendments set forth hereinbelow) to the form in which it was
originally executed on October 14, 1988.
2. The Rights Agreement as heretofore amended is hereby
further modified and amended by deleting the first sentence of
paragraph (a) of Section 1 and substituting therefor the
following:
(a) "Acquiring Person" shall mean any Person (as
such term is hereinafter defined) who or which, together with
all Affiliates and Associates (as such terms are hereinafter
defined) of such Person, shall be the Beneficial Owner (as such
term is hereinafter defined) of 15% or more of the Common
Shares of the Company then outstanding, but shall not include
the Company, any Subsidiary (as such term is hereinafter
defined) of the Company, any employee benefit plan of the
Company or any Subsidiary of the Company or any entity holding
Common Shares for or pursuant to the terms of any such plan, or
Jitney-Jungle Stores of America, Inc., a Mississippi
corporation, or its Subsidiaries, Affiliates or Associates
(hereinafter, collectively, "Jitney-Jungle").
3. The Rights Agreement, as heretofore amended, is
hereby further modified and amended by adding an additional
paragraph at the end of the definition of the terms "Beneficial
Owner" and "beneficially own" in paragraph (c) of Section 1
reading as follows:
Notwithstanding anything in this definition of Beneficial Owner
and Beneficial Ownership to the contrary, Jitney-Jungle shall
not be deemed to be the Beneficial Owner of, nor to
beneficially own, any of the Common Shares of the Company
solely by reason of the approval, execution or delivery by any
party thereto, or by reason of the amendment or consummation of
an Agreement and Plan of Merger by and among Jitney-Jungle
Stores of America, Inc., Delta Acquisition Corporation, and
Delchamps, Inc. dated and effective as of July 8, 1997 (the
"Merger Agreement").
4. The Rights Agreement, as heretofore amended, is
hereby further modified and amended by deleting the first
sentence of paragraph (a) of Section 3 of the Rights Agreement
and substituting therefor the following:
(a) Until the earlier of (i) the tenth day after
the Shares Acquisition Date or (ii) the tenth business day (or
such later date as may be determined by action of the Board of
Directors prior to such time as any Person becomes an Acquiring
Person) after the date of commencement by any Person (other
than the Company, any Subsidiary of the Company, any employee
benefit plan of the Company or of any Subsidiary of the Company
or any entity holding Common Shares for or pursuant to the
terms of any such plan, or Jitney-Jungle) of, or of the first
public announcement of the intention of any Person (other than
the Company, any Subsidiary of the Company, any employee
benefit plan of the Company or of any Subsidiary of the Company
or any entity holding Common Shares for or pursuant to the
terms of any such plan or Jitney-Jungle) to commence, a tender
or exchange offer the consummation of which would result in any
Person becoming the Beneficial Owner of Common Shares
aggregating 15% or more of the then outstanding Common Shares
(including any such date which is after the date of this
Agreement and prior to the issuance of the Rights; the earlier
of such dates being herein referred to as the "Distribution
Date"), (x) the Rights will be evidenced (subject to the
provisions of Section 3(b) hereof) by the certificates for
Common Shares registered in the names of the holders thereof
(which certificates shall also be deemed to be Right
Certificates) and not by separate Right Certificates, and (y)
the right to receive Right Certificates will be transferable
only in connection with the transfer of Common Shares.
5. The Rights Agreement as heretofore amended is hereby
further modified and amended by deleting paragraph (a) of
Section 7 and substituting therefor the following:
(a) The registered holder of any Right Certificate
may exercise the Rights evidenced thereby (except as otherwise
provided herein) in whole or part at any time after the
Distribution Date upon surrender of the Right Certificate, with
the form of election to purchase on the reverse side thereof
duly executed, to the Rights Agent at the principal office of
the Rights Agent, together with payment of the Purchase Price
for each one one-hundredth of a Preferred Share as to which the
Rights are exercised, at or prior to the earliest of (i) the
close of business on October 27, 1998 (the "Final Expiration
Date"), (ii) the time at which the Rights are redeemed as
provided in Section 23 hereof (the "Redemption Date"),
(iii) the time at which such rights are exchanged as provided
in Section 24 hereof, or (iv) immediately prior to the
acceptance for purchase of Common Shares by Jitney-Jungle
pursuant to the Offer (as such term is defined in the Merger
Agreement).
6. The Rights Agreement as heretofore amended is hereby
further amended by adding the following new Section 34 at the
end:
Section 34. Jitney-Jungle Transaction. Notwithstanding
anything in this Agreement to the contrary, neither (a) the
approval, execution, delivery, amendment or consummation of the
Merger Agreement or (b) the public announcement or making of a
tender offer by Jitney-Jungle for Common Shares of the Company,
or the acceptance for purchase of such shares thereunder, shall
cause (i) Jitney-Jungle to become an Acquiring Person, (ii) a
Shares Acquisition Date to occur, or (iii) a Distribution Date
to occur. Any Distribution Date that might or could otherwise
occur under this Agreement shall be indefinitely deferred until
such time as the Board of Directors may otherwise determine.
7. This Second Amendment to the Rights Agreement shall
be governed by and construed in accordance with the internal
laws of the State of Alabama.
8. This Second Amendment to the Rights Agreement may be
executed in any number of counterparts and each of such
counterparts shall for all purposes be deemed an original, and
all such counterparts shall together constitute but one and the
same instrument.
9. Except as expressly set forth herein, this Second
Amendment to the Rights Agreement shall not by implication or
otherwise alter, modify, amend or in any way affect any of the
terms, conditions, obligations, covenants or agreements
contained in the Rights Agreement, all of which are ratified
and affirmed in all respects and shall continue in full force
and effect.
IN WITNESS WHEREOF, the parties hereto have caused this
Second Amendment to the Rights Agreement to be duly executed on
and as of the day and year first above written.
Attest: DELCHAMPS, INC.
By: /s/ Timothy E. Kullman By: /s/ David W. Morrow
------------------------ -----------------------
Name: Timothy E. Kullman Name: David W. Morrow
Title: Senior Vice President and Title: Chairman and Chief
Chief Financial Officer Executive Officer
Attest: AMSOUTH BANK
By: /s/ Kara Lee Partin By: /s/ David E. White
--------------------------- -----------------------
Name: Kara Lee Partin Name: David E. White
Title: Assistant Vice President Title: Senior Vice President
