<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------------------------
SCHEDULE 14D-1
Tender Offer Statement Pursuant to Section 14(d)(1)
of the Securities Exchange Act of 1934
-----------------------------
(AMENDMENT NO. 6)
DELCHAMPS, INC.
(Name of Subject Company)
DELTA ACQUISITION CORPORATION
A WHOLLY OWNED SUBSIDIARY OF
JITNEY-JUNGLE STORES OF AMERICA, INC.
(Bidders)
Common Stock, $.01 par value per share
(Title of Class of Securities)
246615 10 8
(CUSIP Number of Class of Securities)
-----------------------------
MICHAEL E. JULIAN
PRESIDENT AND CHIEF EXECUTIVE OFFICER
JITNEY-JUNGLE STORES OF AMERICA, INC.
1770 ELLIS AVENUE
SUITE 200
JACKSON, MISSISSIPPI 39204
(601) 965-8600
(Name, Address and Telephone Number of Persons Authorized to
Receive Notices and Communications on Behalf of Bidders)
-----------------------------
with a copy to:
DECHERT PRICE & RHOADS
4000 BELL ATLANTIC TOWER
1717 ARCH STREET
PHILADELPHIA, PA 19103
(215) 994-4000
ATTENTION: WILLIAM G. LAWLOR
DAVID E. SCHULMAN
<PAGE>
This Amendment No. 6 to the Schedule 14D-1 relates to a tender offer by
Delta Acquisition Corporation, an Alabama corporation (the "Offeror") and a
wholly owned subsidiary of Jitney-Jungle Stores of America, Inc., a
Mississippi corporation ("Parent"), to purchase all outstanding shares of
common stock, par value $.01 per share, of Delchamps, Inc., an Alabama
corporation (the "Company"), including the associated preferred share
purchase rights (the "Rights") issued pursuant to the Rights Agreement dated
as of October 14, 1988, as amended, between the Company and the First Alabama
Bank, as Rights Agent (collectively, the "Shares"), at a purchase price of
$30.00 per Share, net to the seller in cash, without interest thereon, upon
the terms and subject to the conditions set forth in the Offer to Purchase,
dated July 14, 1997 (the "Offer to Purchase"), and in the related Letter of
Transmittal (which, together with any amendments or supplements thereto,
collectively constitute the "Offer") copies of which were attached as
Exhibits (a)(1) and (a)(2), respectively, to the Schedule 14D-1 filed with
the Securities and Exchange Commission (the "Commission") on July 14, 1997 as
amended by Amendment No. 1 dated July 30, 1997, Amendment No. 2 dated August
4, 1997, Amendment No. 3 dated August 25, 1997, Amendment No. 4 dated August
29, 1997, and Amendment No. 5 dated September 9, 1997 (collectively, the
"Schedule 14D-1"). The purpose of this Amendment No. 6 is to amend and
supplement Items 10 and 11 of the Schedule 14D-1 as described below.
ITEM 10. Additional Information.
(f) Parent and the Company have executed an agreement on the terms of a
proposed consent decree which will, if approved by the Federal Trade
Commission, allow Parent to purchase the Shares pursuant to the Offer and the
Merger under the Hart-Scott-Rodino Antitrust Improvements Act of 1976.
Reference is made to the press release issued by Parent on September 10,
1997, a copy of which is filed as Exhibit (a)(14) to the Schedule 14D-1 and
is incorporated herein by reference.
In addition, Item 10(f) is hereby amended and supplemented by the following:
The proposed changes to the Internal Revenue Code (the "IRC") regarding
capital gains tax discussed in Section 5 ("Certain Federal Income Tax
Consequences") of the Offer to Purchase have been recently enacted. Under
these recently enacted changes to the IRC, net capital gain recognized by
individuals, estates and trusts from the sale of property held more than 18
months will generally be taxed at a maximum rate of 20% for federal income
tax purposes (or 10% if the capital gain would be taxed at only a 15% rate if
it were treated as ordinary income). Net capital gain from the sale of
property held for more than one year but not more than 18 months is taxed at
a maximum rate of 28%.
ITEM 11. Material to be Filed as Exhibits.
(a)(14) Press Release issued by Parent on September 10, 1997.
(a)(15) Proposed Agreement Containing Consent Order, among Parent, Sub,
the Company, Bruckmann, Rosser, Sherrill & Co., L.P. and the Federal Trade
Commission.
(a)(16) Proposed Asset Maintenance Agreement, among Parent, Sub, the
Company, Bruckmann, Rosser, Sherrill & Co., L.P. and the Federal Trade
Commission.
2
<PAGE>
SIGNATURE
After due inquiry and to the best of my knowledge and belief, I certify
the information set forth in this Amendment No. 6 is true, complete and
correct.
Jitney-Jungle Stores of America, Inc.
By: /s/ Michael E. Julian
------------------------------
Name: Michael E. Julian
Title: President and Chief Executive Officer
Delta Acquisition Corporation
By: /s/ Michael E. Julian
------------------------------
Name: Michael E. Julian
Title: President
Dated: September 11, 1997
3
<PAGE>
Exhibit 99(a)(14)
FOR IMMEDIATE RELEASE
JITNEY-JUNGLE AND DELCHAMPS
EXECUTE PROPOSED FTC CONSENT AGREEMENT
Jackson, Mississippi, September 10, 1997. Jitney-Jungle Stores of
America, Inc. announced today that it and Delchamps, Inc. (NASDAQ NMS:DLCH)
have executed an agreement on the terms of a proposed consent decree which
will, if approved by the Federal Trade Commission, allow Jitney-Jungle to
acquire Delchamps under the Hart-Scott-Rodino Antitrust Improvements Act of
1976. As previously announced, Jitney-Jungle and Delchamps have entered into
a merger agreement under which Jitney-Jungle's subsidiary, Delta Acquisition
Corporation, has commenced a $30 per share cash tender offer for all
outstanding shares of Delchamps which will expire at 5:00 p.m., New York City
time, on September 12, 1997, unless extended.
Jitney-Jungle said the consent agreement is now under consideration by
the Commission and its staff. Jitney-Jungle has requested that the
Commission reach its decision prior to the September 12 expiration date of
the tender offer, although Jitney-Jungle cannot predict the timing or outcome
of such decision.
# # #
FOR FURTHER INFORMATION CONTACT:
Jitney-Jungle Stores of America, Inc.:
Michael E. Julian, President and Chief Executive Officer
(601) 346-2116
MacKenzie Partners, Inc.:
Grace M. Protos
(212) 929-5500
<PAGE>
UNITED STATES OF AMERICA
BEFORE FEDERAL TRADE COMMISSION
- -------------------------------------------
)
In the Matter of )
)
JITNEY-JUNGLE STORES OF AMERICA, INC., )
a corporation; )
)
BRUCKMANN, ROSSER, SHERRILL & CO., L.P., )
a limited partnership; ) File No. 971-0093
)
DELTA ACQUISITION CORPORATION, )
a corporation; and )
)
DELCHAMPS, INC., )
a corporation. )
)
- -------------------------------------------
AGREEMENT CONTAINING CONSENT ORDER
The Federal Trade Commission ("Commission") having initiated an
investigation of the proposed acquisition of Delchamps, Inc. ("Delchamps") by
Jitney-Jungle Stores of America, Inc. ("Jitney-Jungle"), Bruckmann, Rosser,
Sherrill & Co., L.P. ("Bruckmann"), and Delta Acquisition Corporation
("Delta"), and it now appearing that Jitney-Jungle, Bruckmann, Delta, and
Delchamps; hereinafter sometimes referred to as "Proposed Respondents," are
willing to enter into an agreement containing an Order ("Agreement") to
divest certain assets and to cease and desist from certain acts, and
providing for other relief:
IT IS HEREBY AGREED by and among Proposed Respondents, by their duly
authorized officers and attorneys, and counsel for the Commission that:
<PAGE>
Agreement Containing Consent Order Page 2 of 22
1. Proposed Respondent Jitney-Jungle Stores of America, Inc. is a
corporation organized, existing, and doing business under and by virtue of
the laws of the State of Mississippi, with its office and principal place of
business located at 1770 Ellis Avenue, Suite 200, Jackson, Mississippi 39204.
2. Proposed Respondent Bruckmann, Rosser, Sherill & Co., L.P. is a
limited partnership organized, existing, and doing business under and by
virtue of the laws of the State of Delaware, with its office and principal
place of business located at Two Greenwich Plaza, Greenwich, Connecticut 06830.
3. Proposed Respondent Delta Acquisition Corporation is a corporation
organized, existing, and doing business under and by virtue of the laws of
the State of Alabama, with its office and principal place of business located
at c/o Jitney-Jungle Stores of America, Inc., 1770 Ellis Avenue, Suite 200,
Jackson, Mississippi 39204.
4. Proposed Respondent Delchamps, Inc. is a corporation organized,
existing and doing business under and by virtue of the laws of the State of
Alabama, with its office and principal place of business located at 305
Delchamps Drive, Mobile, Alabama 36602.
5. Proposed Respondents admit all the jurisdiction facts sets forth in
the draft of complaint here attached.
6. Proposed Respondents waive:
a. any further procedural steps;
b. the requirement that the Commission's decision contain a statement
of findings of fact and conclusions of law;
<PAGE>
Agreement Containing Consent Order Page 3 of 22
c. all rights to seek judicial review or otherwise to challenge or
contest the validity of the Order entered pursuant to this Agreement;
and
d. any claim under the Equal Access to Justice Act.
7. This Agreement shall not become part of the public record of the
proceeding unless and until it is accepted by the Commission. If this
Agreement is accepted by the Commission it, together with the draft of
complaint contemplated thereby, will be placed on the public record for a
period of sixty (60) days and information in respect thereto publicly
released. The Commission thereafter may either withdraw its acceptance of
this Agreement and so notify the Proposed Respondents, in which event it will
take such action as it may consider appropriate, or issue and serve its
complaint (in such form as the circumstances may require) and decision, in
disposition of the proceeding.
8. This Agreement is for settlement purposes only and does not
constitute an admission by Proposed Respondents that the law has been
violated as alleged in the draft of complaint here attached, or that the
facts as alleged in the draft complaint, other than jurisdictional facts,
are true.
9. This Agreement contemplates that, if it is accepted by the
Commission, and if such acceptance is not subsequently withdrawn by the
Commission pursuant to the provisions of Section 2.34 of the Commission's
Rules, the Commission may, without further notice to the Proposed
Respondents, (1) issue its complaint corresponding in form and substance with
the draft of complaint here attached and its decision containing the
following Order to divest and to cease and desist in disposition of the
proceeding, and (2) make information public with respect thereto. When so
entered, the Order shall have the same force and effect and may be altered,
<PAGE>
Agreement Containing Consent Order Page 4 of 22
modified, or set aside in the same manner and within the same time provided
by statute for other orders. The Order shall become final upon service.
Delivery by the United States Postal Service of the complaint and decision
containing the agreed-to Order to Proposed Respondents' addresses as stated
in this Agreement shall constitute service. Proposed Respondents waive any
right they may have to any other manner of service. The complaint may be used
in construing the terms of the Order, and no agreement, understanding,
representation, or interpretation not contained in the Order or the Agreement
may be used to vary or contradict the terms of the Order.
10. Proposed Respondents have read the proposed complaint and Order
contemplated hereby. Proposed Respondents understand that once the Order has
been issued, they will be required to file one or more compliance reports
showing that they have fully complied with the Order. Proposed Respondents
further understand that they may be liable for civil penalties in the amount
provided by law for each violation of the Order after it becomes final. By
signing this Agreement, Proposed Respondents represent that the relief
contemplated by this Agreement can be accomplished.
11. Proposed Respondents shall, within thirty (30) days of the date this
Agreement is signed by Proposed Respondents, submit an initial report,
pursuant to Section 2.33 of the Commission's Rules, signed by the Proposed
Respondents, setting forth in detail the manner in which the Proposed
Respondents are complying with the terms of the Asset Maintenance Agreement
signed by the Proposed Respondents on September __, 1997 (attached to this
Order and made a part hereof as Appendix I), and how they will comply with
Paragraph II of the Order when and if entered. Such report will not become
part of the public record unless and until the accompanying Agreement and
Order are accepted by the Commission for public comment.
<PAGE>
Agreement Containing Consent Order Page 5 of 22
12. Proposed Respondents shall not divest the Assets To Be Divested
until after the Order becomes final.
ORDER
I.
IT IS ORDERED that, as used in this Order, the following definitions
shall apply:
A. "Jitney-Jungle" means Jitney-Jungle Stores of America, Inc., its
directors, officers, employees, agents, and representatives, predecessors,
successors and assigns; its subsidiaries, divisions, groups and affiliates
controlled by Jitney-Jungle, and the respective directors, officers,
employees, agents, and representatives, successors, and assigns of each.
Jitney-Jungle, after consummation of the Acquisition, includes Delchamps. A
majority of the voting securities of Jitney-Jungle are owned by Bruckmann.
B. "Bruckmann" means Bruckmann, Rosser, Sherill & Co., L.P., its
predecessors, successors and assigns, subsidiaries, divisions, groups and
affiliates controlled by Bruckmann and their respective general partners,
officers, employees, agents, and representatives, and the respective
successors and assigns of each. Bruckmann owns a majority of the voting
securities of Jitney-Jungle.
C. "Delta" means Delta Acquisition Corporation, its directors, officers,
employees, agents, and representatives, predecessors, successors, and
assigns; its subsidiaries, divisions, groups and affiliates controlled by
Delta, and the respective directors, officers, employees, agents, and
representatives, successors, and assigns of each. Delta is a wholly-owned
subsidiary of Jitney-Jungle.
<PAGE>
Agreement Containing Consent Order Page 6 of 22
D. "Delchamps" means Delchamps, Inc., its directors, officers,
employees, agents, and representatives, predecessors, successors, and
assigns; its subsidiaries, divisions, groups and affiliates controlled by
Delchamps, and the respective directors, officers, employees, agents, and
representatives, successors, and assigns of each.
E. "Respondents" means Jitney-Jungle, Bruckmann, Delta, and Delchamps.
F. "Commission" means the Federal Trade Commission.
G. "Acquisition" means Jitney-Jungle's, Bruckmann's and Delta's proposed
acquisition of all of the outstanding voting securities of and merger with
Delchamps pursuant to the Agreement and Plan of Merger dated July 8, 1997.
H. "Assets To Be Divested" shall consist of the supermarkets identified
in Schedule A of this Order and all assets, leases, properties, permits (to
the extent transferable), customer lists, businesses and goodwill, tangible
and intangible, related to or utilized in the supermarket business operated
at those locations, but shall not include those assets consisting of or
pertaining to any of the Respondents' trade marks, trade dress, service
marks, or trade names.
I. "Supermarket" means a full-line retail grocery store that carries a
wide variety of food and grocery items in particular product categories,
including bread and dairy products; refrigerated and frozen food and beverage
products; fresh and prepared meats and poultry; produce, including fresh
fruits and vegetables; shelf-stable food and beverage products, including
canned and other types of packaged products; staple foodstuffs, which may
include salt, sugar, flour, sauces, spices, coffee, and tea; and other
grocery products, including nonfood items such as soaps, detergents, paper
goods, other household products, and health and beauty aids.
<PAGE>
Agreement Containing Consent Order Page 7 of 22
J. "Supervalu" means Supervalu Inc., a corporation organized, existing
and doing business under and by virtue of the laws of the State of Delaware,
with its principal place of business located at 11840 Valley View Road, Eden
Prairie, Minnesota 55344; and Supervalu Holdings, Inc. a corporation
organized, existing and doing business under and by virtue of the laws of the
State of Missouri, with its principal place of business located at 11840
Valley View Road, Eden Prairie, Minnesota 55344, Supervalu Holdings, Inc. is
a wholly-owned subsidiary of Supervalu Inc.
K. "R & M Foods" means R & M Foods, Inc., a corporation organized,
existing and doing business under and by virtue of the laws of the State of
Mississippi, with its principal place of business located at 1612 Adeline
Street, Hattiesburg, Mississippi 39402.
L. "Southeast Foods" means Southeast Foods, Inc., a corporation
organized, existing and doing business under and by virtue of the laws of
the State of Mississippi, with its principal place of business located at
1001 North 11th Street, Monroe, Louisiana 71207-2230.
M. "Supervalu Agreement" means the Purchase Agreement between Supervalu
and Jitney-Jungle executed on August 29, 1997, and all subsequent amendments
thereto, for the divestiture by Respondents to Supervalu of the Assets To Be
Divested.
N. "Acquirer(s)" means Supervalu, R & M Foods, Southeast Foods, and/or
the entity or entities approved by the Commission to acquire the Assets To Be
Divested pursuant to this Order.
O. "Landlord Consents" means all consents from all landlords that are
necessary to effect the complete transfer to the Acquirer(s) of the assets
required to be divested pursuant to this Order.
<PAGE>
Agreement Containing Consent Order Page 8 of 22
II.
IT IS FURTHER ORDERED that:
A. Respondents shall divest, absolutely and in good faith, the Assets
To Be Divested to:
1. Supervalu, in accordance with the Supervalu Agreement (which
agreement shall not be construed to vary or contradict the
terms of this Order or the Asset Maintenance Agreement) dated
August 29, 1997, no later than,
a. one (1) month after the date on which this Order becomes
final, or
b. five (5) months after acceptance of the Agreement Containing
Consent Order by the Commission,
whichever is later; or
2. an Acquirer that receives the prior approval of the Commission
and only in a manner that receives the prior approval of the
Commission, within three (3) months after the date on which
this Order becomes final;
provided that the closing date of the Supervalu Agreement or any
other agreement pursuant to which the Assets To Be Divested are
divested to an Acquirer shall not occur until after Respondents have
obtained all required Landlord Consents.
B. If Respondents divest the Assets To Be Divested pursuant to the
terms of Paragraph II.A.1., Supervalu may sell, within three (3) months of
the date on which this Order becomes final, any of the supermarkets
constituting the Assets To Be Divested to R & M Foods or Southeast Foods, but
only in a manner that receives the prior approval of the Commission.
<PAGE>
Agreement Containing Consent Order Page 9 of 22
Respondents shall use their best efforts to assist Supervalu in the sale of
the Assets To Be Divested pursuant to this Paragraph in accordance with the
terms of this Order.
C. A condition of approval by the Commission of the divestiture
transaction described in Paragraph II.A.1. shall be a written agreement by
Supervalu that it will not sell the Assets To Be Divested, other than as
provided in Paragraph II.B., for a period of three (3) years from the date on
which this Order becomes final, directly or indirectly, through subsidiaries,
partnerships or otherwise, without the prior approval of the Commission.
D. The purpose of the divestitures is to ensure the continuation of the
Assets To Be Divested as ongoing viable enterprises engaged in the
supermarket business and to remedy the lessening of competition resulting
from the Acquisition alleged in the Commission's complaint.
III.
IT IS FURTHER ORDERED that:
A. If Respondents fail to divest absolutely and in good faith the
Assets To Be Divested pursuant to Paragraph II.A. of this Order, the
Commission may appoint a trustee to divest the Assets To Be Divested.
B. In the event that the Commission or the Attorney General brings an
action pursuant to Section 5(1) of the Federal Trade Commission Act, 15
U.S.C. Section 45(1), or any other statute enforced by the Commission,
Respondents shall consent to the appointment of a trustee in such action.
Neither the appointment of a trustee nor a decision not to appoint a trustee
under this Paragraph shall preclude the Commission or the Attorney General
from seeking civil penalties or any other relief available to it, including a
court-appointed trustee, pursuant to Section 5(1) of the
<PAGE>
Agreement Containing Consent Order Page 10 of 22
Federal Trade Commission Act, or any other statute enforced by the
Commission, for any failure by the Respondents to comply with this Order.
C. If a trustee is appointed by the Commission or a court pursuant to
Paragraph III.A. of this Order, Respondents shall consent to the following
terms and conditions regarding the trustee's powers, duties, authority, and
responsibilities:
1. The Commission shall select the trustee, subject to the consent
of Respondents, which consent shall not be unreasonably withheld.
The trustee shall be a person with experience and expertise in
acquisitions and divestitures. If Respondents have not opposed,
in writing, including the reasons for opposing, the selection
of any proposed trustee within ten (10) days after notice by the
staff of the Commission to Respondents of the identity of any
proposed trustee, Respondents shall be deemed to have consented
to the selection of the proposed trustee.
2. Subject to the prior approval of the Commission, the trustee
shall have the exclusive power and authority to divest the
Assets To Be Divested.
3. Within ten (10) days after appointment of the trustee,
Respondents shall execute a trust agreement that, subject to
the prior approval of the Commission and, in the case of a
court-appointed trustee, of the court, transfers to the trustee
all rights and powers necessary to permit the trustee to effect
each divestiture required by this Order.
4. The trustee shall have twelve (12) months from the date the
Commission or court approves the trust agreement described in
Paragraph III.C.3. to
<PAGE>
Agreement Containing Consent Order Page 11 of 22
accomplish the divestitures, which shall be subject to the prior
approval of the Commission. If, however, at the end of the twelve-month
period, the trustee has submitted a plan of divestiture or believes
that divestiture can be achieved within a reasonable time, the
divestiture period may be extended by the Commission, or, in the case
of a court-appointed trustee, by the court; provided, however, the
Commission may extend the period for each divestiture only two (2)
times.
5. The trustee shall have full and complete access to the personnel,
books, records, and facilities related to the Assets To Be Divested or
to any other relevant information, as the trustee may request.
Respondents shall develop such financial or other information as such
trustee may reasonably request and shall cooperate with the trustee.
Respondents shall take no action to interfere with or impede the
trustee's accomplishment of the divestitures. Any delays in divestiture
caused by Respondents shall extend the time for divestiture under this
Paragraph in an amount equal to the delay, as determined by the
Commission or, for a court-appointed trustee, by the court.
6. The trustee shall use his or her best efforts to negotiate the most
favorable price and terms available in each contract that is
submitted to the Commission, subject to Respondents' absolute and
unconditional obligation to make each divestiture required by this
Order at no minimum price. Each divestiture shall be made in the manner
consistent with the
<PAGE>
Agreement Containing Consent Order Page 12 of 22
terms of this Order; provided, however, if the trustee receives bona
fide offers for an asset to be divested from more than one acquiring
entity, and if the Commission determines to approve more than one such
acquiring entity, the trustee shall divest such asset to the acquiring
entity or entities selected by Respondents from among those approved by
the Commission.
7. The trustee shall serve, without bond or other security, at the cost
and expense of Respondents, on such reasonable and customary terms and
conditions as the Commission or a court may set. The trustee shall have
the authority to employ, at the cost and expense of Respondents, such
consultants, accountants, attorneys, investment bankers, business
brokers, appraisers, and other representatives and assistants as are
necessary to carry out the trustee's duties and responsibilities. The
trustee shall account for all monies derived from the divestitures and
all expenses incurred. After approval by the Commission and, in the
case of a court-appointed trustee, by the court, of the account of the
trustee, including fees for his or her services, all remaining monies
shall be paid at the direction of the Respondents, and the trustee's
power shall be terminated. The trustee's compensation shall be based
at least in significant part on a commission arrangement contingent on
the trustee's divesting the Assets To Be Divested.
8. Respondents shall indemnify the trustee and hold the trustee
harmless against any losses, claims, damages, liabilities, or expenses
arising out of,
<PAGE>
Agreement Containing Consent Order Page 13 of 22
or in connection with, the performance of the trustee's duties,
including all reasonable fees of counsel and other expenses incurred
in connection with the preparation for, or defense of any claim,
whether or not resulting in any liability, except to the extent that
such liabilities, losses, damages, claims, or expenses result from
misfeasance, gross negligence, willful or wanton acts, or bad faith by
the trustee.
9. If the trustee ceases to act or fails to act diligently, a substitute
trustee shall be appointed in the same manner as provided in Paragraph
III.A. of this Order.
10. The Commission or, in the case of a court-appointed trustee, the
court, may on its own initiative or at the request of the trustee issue
such additional orders or directions as may be necessary or appropriate
to accomplish each divestiture required by this Order.
11. The trustee may also divest such additional ancillary assets and
businesses and effect such arrangements as are necessary to assure the
marketability and the viability and competitiveness of the Assets To Be
Divested.
12. The trustee shall have no obligation or authority to operate or
maintain the Assets To Be Divested.
13. The trustee shall report in writing to Respondents and the
Commission every sixty (60) days concerning the trustee's efforts to
accomplish each divestiture required by this Order.
<PAGE>
Agreement Containing Consent Order Page 14 of 22
IV.
IT IS FURTHER ORDERED that:
A. Pending divestiture of the Assets To Be Divested pursuant to this
Order, Respondents shall take such actions as are necessary to maintain the
viability, competitiveness, and marketability of the Assets To Be Divested,
and to prevent the destruction, removal, wasting, deterioration, or
impairment of any of Assets To Be Divested except for ordinary wear and
tear.
B. Respondents shall comply with all the terms of the Asset Maintenance
Agreement attached to this Order and made a part hereof as Appendix I. The
Asset Maintenance Agreement shall continue in effect until such time as all
Assets To Be Divested have been divested as required by this Order.
V.
IT IS FURTHER ORDERED that, for a period of ten (10) years from the date
this Order becomes final, Respondents shall not, without providing advance
written notification to the Commission, directly or indirectly, through
subsidiaries, partnerships, or otherwise:
A. Acquire any ownership or leasehold interest in any facility that has
operated as a supermarket within six (6) months of the date of such proposed
acquisition in Hancock, Harrison, Jackson, Lamar, Forrest, and Warren
counties in Mississippi, and Escambia County, Florida.
B. Acquire any stock, share capital, equity, or other interest in any
entity that owns any interest in or operates any supermarket or owned any
interest in or operated any supermarket within six (6) months of such
proposed acquisition in Hancock, Harrison, Jackson, Lamar, Forrest, and
Warren counties in Mississippi, and Escambia County, Florida.
<PAGE>
Agreement Containing Consent Order Page 15 of 22
Provided, however, that advance written notification shall not apply to
the construction of new facilities by Respondents or the acquisition of or
leasing of a facility that has not operated as a supermarket within six (6)
months of Respondents' offer to purchase or lease.
Said notification shall be given on the Notification and Report Form set
forth in the Appendix to Part 803 of Title 16 of the Code of Federal
Regulations as amended (hereinafter referred to as "the Notification"), and
shall be prepared and transmitted in accordance with the requirements of that
part, except that no filing fee will be required for any such notification,
notification shall be filed with the Secretary of the Commission,
notification need not be made to the United States Department of Justice, and
notification is required only of Respondents and not of any other party to
the transaction. Respondents shall provide the Notification to the Commission
at least thirty days prior to consummating any such transaction (hereinafter
referred to as the "first waiting period"). If, within the first waiting
period, representatives of the Commission make a written request for
additional information or documentary material (within the meaning of 16
C.F.R. Section 803.20), Respondents shall not consummate the transaction
until twenty days after submitting such additional information or documentary
material. Early termination of the waiting periods in this paragraph may be
requested and, where appropriate, granted by letter from the Bureau of
Competition. Provided, however, that prior notification shall not be required
by this paragraph for a transaction for which notification is required to be
made, and has been made, pursuant to Section 7A of the Clayton Act, 15 U.S.C.
Section 18a.
VI.
IT IS FURTHER ORDERED that, for a period of ten (10) years commencing on
the date this Order becomes final:
<PAGE>
Agreement Containing Consent Order Page 16 of 22
A. Respondents shall neither enter into nor enforce any agreement that
restricts the ability of any person (as defined in Section 1(a) of the
Clayton Act, 15 U.S.C. Section 12(a)) that acquires any supermarket, any
leasehold interest in any supermarket, or any interest in any retail location
used as a supermarket on or after July 1, 1997, to operate a supermarket at
that site if such supermarket was formerly owned or operated by Respondents
in Hancock, Harrison, Jackson, Lamar, Forrest, and Warren counties in
Mississippi, and Escambia County, Florida.
B. Respondents shall not remove any equipment from a supermarket owned
or operated by Respondents in Hancock, Harrison, Jackson, Lamar, Forrest, and
Warren counties in Mississippi, and Escambia County, Florida, prior to a
sale, sublease, assignment, or change in occupancy, except for replacement or
relocation of such equipment in or to any other supermarket owned or operated
by Respondents in the ordinary course of business, or except as part of any
negotiation for a sale, sublease, assignment, or change in occupancy of such
supermarket.
VII.
IT IS FURTHER ORDERED that:
A. Within thirty (30) days after the date this Order becomes final and
every thirty (30) days thereafter until Respondents have fully complied with
the provisions of Paragraphs II or III of this Order, Respondents shall
submit to the Commission verified written reports setting forth in detail the
manner and form in which they intend to comply, are complying, and have
complied with Paragraphs II and III of this Order. Respondents shall include
in their compliance reports, among other things that are required from time
to time, a full description of the efforts being made to comply with
Paragraphs II and III of the Order, including a description of all
<PAGE>
Agreement Containing Consent Order Page 17 of 22
substantive contacts or negotiations for divestitures and the identity of all
parties contacted. Respondents shall include in their compliance reports
copies of all written communications to and from such parties, all internal
memoranda, and all reports and recommendations concerning divestiture.
B. One year (1) from the date this Order becomes final, annually for the
next nine (9) years on the anniversary of the date this Order becomes final,
and at other times as the Commission may require, Respondents shall file
verified written reports with the Commission setting forth in detail the
manner and form in which they have complied and are complying with this Order.
VIII.
IT IS FURTHER ORDERED that Respondents shall notify the Commission at
least thirty (30) days prior to any proposed change in the corporate
Respondents such as dissolution, assignment, sale resulting in the emergence
of a successor corporation, or the creation or dissolution of subsidiaries or
any other change in Respondents that may affect compliance obligations
arising out of the Order.
IX.
IT IS FURTHER ORDERED that, for the purpose of determining or securing
compliance with this Order, upon written request, Respondents shall permit
any duly authorized representative of the Commission:
A. Access, during office hours and in the presence of counsel, to
inspect and copy all books, ledgers, accounts, correspondence, memoranda and
other records and documents in the
<PAGE>
Agreement Containing Consent Order Page 18 of 22
possession or under the control of Respondents relating to any matters
contained in this Order;
and
B. Upon five days' notice to Respondents and without restraint or
interference from Respondents, to interview Respondents or officers,
directors, or employees of Respondents in the presence of counsel.
Signed this 5th day of September, 1997
JITNEY-JUNGLE CORPORATION OF AMERICA, INC., a corporation
By: /s/ Michael E. Julian
--------------------------
Michael E. Julian
Chief Executive Officer and President
/s/ R. Barry Cannada
--------------------------
R. Barry Cannada, Esq.
Butler, Snow, O'Mara, Stevens & Cannada, PLLC
Counsel for Jitney-Jungle Stores of America, Inc.
/s/ Stephen A. Stack, Jr.
--------------------------
Stephen A. Stack, Jr., Esq.
Dechert Price & Rhoads
Counsel for Jitney-Jungle Stores of America, Inc.
BRUCKMANN, ROSSER, SHERRILL & CO., L.P., a limited partnership
By: /s/ Harold O. Rosser, II
--------------------------
Harold O. Rosser, II
Managing Director
/s/ Stephen A. Stack, Jr.
--------------------------
Stephen A. Stack, Jr., Esq.
Dechert Price & Rhoads
Counsel for Bruckmann, Rosser, Sherrill & Co., L.P.
<PAGE>
Agreement Containing Consent Order Page 19 of 22
DELTA ACQUISITION CORPORATION, a corporation
By: /s/ Michael E. Julian
--------------------------
Michael E. Julian
President
/s/ R. Barry Cannada
--------------------------
R. Barry Cannada, Esq.
Butler, Snow, O'Mara, Stevens & Cannada, PLLC
Counsel for Delta Acquisition Corporation
/s/ Stephen A. Stack, Jr.
--------------------------
Stephen A. Stack, Jr., Esq.
Dechert Price & Rhoads
Counsel for Delta Acquisition Corporation
DELCHAMPS, INC., a corporation
By: /s/ David W. Morrow
--------------------------
David W. Morrow
Chairman of the Board and Chief Executive Officer
/s/ Howard E. Sinor, Jr.
--------------------------
Howard E. Sinor, Jr., Esq.
Jones, Walker, Waechter, Poitevent, Carrere & Denegre, L.L.P.
Counsel for Delchamps, Inc.
<PAGE>
Agreement Containing Consent Order Page 20 of 22
FEDERAL TRADE COMMISSION
By: --------------------------
James A. Fishkin
Attorney
Bureau of Competition
APPROVED:
--------------------------
Phillip L. Broyles
Assistant Director
Bureau of Competition
--------------------------
George S. Cary
Senior Deputy Director
Bureau of Competition
--------------------------
William J. Baer
Director
Bureau of Competition
<PAGE>
Agreement Containing Consent Order
Page 21 of 22
Schedule A
1. The following supermarket located in Hancock County, Mississippi:
a. Delchamps store no. 64 operating under the "Delchamps" trade
name, which is located at Choctaw Plaza Shopping Center, 318
Highway 90, Waveland, MS 39576;
2. The following supermarkets located in Harrison County, Mississippi:
a. Jitney-Jungle store no. 33 operating under the "Jitney-Jungle" trade
name, which is located at 917 Division St., Biloxi, MS 39530;
b. Jitney-Jungle store no. 32 operating under the "Jitney-Jungle" trade
name, which is located at 1225 Pass Road, Gulfport, MS 39501;
c. Jitney-Jungle store no. 42 operating under the "Jitney-Jungle" trade
name, which is located at Handsboro Square Shopping Center, 1345 East
Pass Road, Gulfport, MS 39501; and
d. Delchamps store no. 364 operating under the "Delchamps" trade name,
which is located at 11240-A Highway 49 North, Gulfport, MS 39503;
3. The following supermarkets located in Escambia County, Florida:
a. Jitney-Jungle store no. 54 operating under the "Jitney-Jungle" trade
name, which is located at 4081-A East Olive Road, Pensacola, FL 32514.
b. Jitney-Jungle store no. 52 operating under the "Sack & Save" trade
name, which is located at Brent Oaks Mall, East Brent Lane, Pensacola,
FL 32503.
4. The following supermarket located in Lamar County, Mississippi:
a. Delchamps store no. 67 operating under the "Delchamps" trade name,
which is located at Oak Grove Plaza Shopping Center, 4600 West Hardy
Street, Hattiesburg, MS 39401.
5. The following supermarket located in Forrest County, Mississippi:
a. Delchamps store no. 9 operating under the "Delchamps" trade name,
which is located at 601 Broadway Street, Hattiesburg, MS 39401.
<PAGE>
Agreement Containing Consent Order
Page 22 of 22
6. The following supermarket located in Warren County, Mississippi:
a. Delchamps store no. 115 operating under the "Delchamps" trade name,
which is located at Delchamps Plaza, 3046-D Indiana Avenue,
Vicksburg, MS 39180.
<PAGE>
APPENDIX I
UNITED STATES OF AMERICA
BEFORE FEDERAL TRADE COMMISSION
- ------------------------------------------
)
In the Matter of )
)
JITNEY-JUNGLE STORES OF AMERICA, INC., )
a corporation; )
)
BRUCKMANN, ROSSER, SHERRILL & CO., L.P., )
a limited partnership; ) File No. 971-0093
)
DELTA ACQUISITION CORPORATION, )
a corporation; and )
)
DELCHAMPS, INC., )
a corporation. )
)
- ------------------------------------------
ASSET MAINTENANCE AGREEMENT
This Asset Maintenance Agreement ("Agreement") is by and between
Jitney-Jungle Stores of America, Inc. ("Jitney-Jungle"), a corporation
organized, existing, and doing business under and by virtue of the laws of
the State of Mississippi, with its office and principal place of business
located at 1770 Ellis Avenue, Suite 200, Jackson, Mississippi 39204;
Bruckmann, Rosser, Sherrill & Co., L.P. ("Bruckman"), a limited partnership
organized, existing, and doing business under and by virtue of the laws of
the State of Delaware, with its office and principal place of business
located at Two Greenwich Plaza, Greenwich, Connecticut 06830; Delta
Acquisition Corporation ("Delta"), a corporation organized, existing, and
doing business under and by virtue of the laws of the State of Alabama, with
its office and principal place of business
<PAGE>
Asset Maintenance Agreement Page 2 of 9
located at c/o Jitney-Jungle Stores of America, Inc., 1770 Ellis Avenue,
Suite 200, Jackson, Mississippi 39204; Delchamps, Inc. ("Delchamps"), a
corporation organized, existing, and doing business under and by virtue of the
laws of the State of Alabama, with its office and principal place of business
located at 305 Delchamps Drive, Mobile, Alabama 36602 (collectively "Proposed
Respondents"); and the Federal Trade Commission ("Commission"), an
independent agency of the United States Government, established under the
Federal Trade Commission Act of 1914, 15 U.S.C. Section 41, et seq.
(collectively "the Parties").
PREMISES
WHEREAS, Jitney-Jungle, of which a majority of the voting securities are
owned by Bruckmann, and Delta, a wholly-owned subsidiary of Jitney-Jungle,
pursuant to an Agreement and Plan of Merger dated July 8, 1997, agreed to
acquire all of the outstanding stock of Delchamps (hereinafter "the proposed
Acquisition"); and
WHEREAS, the Commission is now investigating the proposed Acquisition to
determine if it would violate any of the statutes the Commission enforces; and
WHEREAS, if the Commission accepts the attached Agreement Containing
Consent Order ("Consent Order"), the Commission is required to place it on
the public record for a period of sixty (60) days for public comment and may
subsequently either withdraw such acceptance or issue and serve its Complaint
and its Decision and final Order in disposition of the proceeding pursuant to
the provisions of Section 2.34 of the Commission's Rules; and
WHEREAS, the Commission is concerned that if an agreement is not reached
preserving the status quo ante of the Assets To Be Divested as defined in the
attached Consent Order
<PAGE>
Asset Maintenance Agreement Page 3 of 9
(hereinafter referred to as "Assets" or "Supermarket(s)") during the period
prior to their divestiture, any divestiture resulting from the Consent Order
or from any other administrative proceeding challenging the legality of the
Acquisition might not be possible, or might produce a less than effective
remedy; and
WHEREAS, the purpose of this Agreement and of the Consent Order is to
preserve the Assets pending their divestiture pursuant to the terms of the
Consent Order, in order to remedy any anticompetitive effects of the proposed
Acquisition; and
WHEREAS, Proposed Respondents entering into this Agreement shall in no
way be construed as an admission by Proposed Respondents that the proposed
Acquisition is illegal; and
WHEREAS, Proposed Respondents understand that no act or transaction
contemplated by this Agreement shall be deemed immune or exempt from the
provisions of the antitrust laws or the Federal Trade Commission Act by
reason of anything contained in this Agreement.
NOW, THEREFORE, in consideration of the Commission's agreement that at the
time it accepts the Consent Order for public comment it will grant early
termination of the Hart-Scott-Rodino waiting period, the Parties agree as
follows:
TERMS OF AGREEMENT
------------------
1. Proposed Respondents agree to execute, and upon its issuance to be
bound by, the attached Consent Order. The Parties further agree that each
term defined in the attached Consent Order shall have the same meaning in
this Agreement.
<PAGE>
Asset Maintenance Agreement Page 4 of 9
2. Proposed Respondents agree that from the date Proposed Respondents
sign this Agreement until the earlier of the dates listed in subparagraphs
2.a. and 2.b., Proposed Respondents will comply with the provisions of this
Agreement:
a. three (3) business days after the Commission withdraws its
acceptance of the Consent Order pursuant to the provisions of Section 2.34 of
the Commission's Rules; or
b. the date all of the divestitures required by the Consent
Order have been completed.
3. Proposed Respondents shall maintain the viability, marketability, and
competitiveness of the Assets, and shall not cause the wasting or
deterioration of the Assets, nor shall they cause the Assets to be operated
in a manner inconsistent with applicable laws, nor shall they sell, transfer,
encumber or otherwise impair the marketability, viability, or competitiveness
of the Assets. Proposed Respondents shall conduct or cause to be conducted
the business of the Supermarkets in the regular and ordinary course and in
accordance with past practice (including regular repair and maintenance
efforts) and shall use their best efforts to preserve the existing
relationships with each Supermarket's suppliers, customers, employees and
others having business relations with the Supermarkets, in the ordinary course
of the Supermarkets' business and in accordance with past practice. Proposed
Respondents shall not terminate the operation of any Supermarket. Proposed
Respondents shall continue to maintain the inventory of each Supermarket at
levels and selections (e.g., stock-keeping units) consistent with
those maintained by such Proposed Respondent(s) at such Supermarket in the
ordinary course of business consistent with past practice. Proposed
Respondents shall use best efforts to keep the
<PAGE>
Asset Maintenance Agreement Page 5 of 9
organization and properties of each of the Supermarkets intact, including
current business operations, physical facilities, working conditions, and a
work force of equivalent size, training, and expertise associated with each
Supermarket. Included in the above obligations, Proposed Respondents shall,
without limitation:
a. maintain operations and departments and shall not reduce hours at
each Supermarket;
b. not transfer inventory from any Supermarket other than in the
ordinary course of business consistent with past practice;
c. make any payment required to be paid under any contract or lease
when due, and otherwise shall pay all liabilities and satisfy all
obligations, in each case in a manner consistent with past
practice;
d. maintain each Supermarket's books and records;
e. not display any signs or conduct any advertising (including
direct mailing, point-of-purchase coupons, etc.), that indicates
that any Proposed Respondent is moving its operations to another
location, or that indicates a Supermarket will close;
f. not conduct any "going out of business," "close-out,"
"liquidation" or similar sales or promotions at or relating to
any Supermarket;
g. not change or modify in any material respect the existing
advertising practices, programs and policies for any
Supermarket, other than changes in the ordinary course of
business consistent with past practice for
<PAGE>
Asset Maintenance Agreement Page 6 of 9
supermarkets of the Proposed Respondents not being closed or
relocated; or
h. not transfer any of the Proposed Respondents' on-site employees
employed at any Supermarket on the date of this Agreement to any
other supermarket or location owned or operated by any Proposed
Respondent other than transfers in the ordinary course of
business consistent with past practice.
4. Should the Commission seek in any proceeding to compel Proposed
Respondents to divest themselves of the Assets or to seek any other
injunctive or equitable relief, Proposed Respondents shall not raise any
objection based upon the expiration of the applicable Hart-Scott-Rodino
Antitrust Improvements Act waiting period or the fact that the Commission has
not sought to enjoin the Acquisition. Proposed Respondents also waive all
rights to contest the validity of this Agreement.
5. For the purpose of determining or securing compliance with this
Agreement, subject to any legally recognized privilege, and upon written
request with five (5) days' notice to Proposed Respondents and to their
principal office(s), Proposed Respondents shall permit any duly authorized
representative or representatives of the Commission:
a. access during the office hours of Proposed Respondents, in the
presence of counsel, to inspect and copy all books, ledgers,
accounts, correspondence, memoranda and other records and
documents in the possession or under
<PAGE>
Asset Maintenance Agreement Page 7 of 9
the control of Proposed Respondents relating to compliance with this
Agreement; and
b. to interview officers or employees of Proposed Respondents, who may
have counsel present, regarding any such matters.
6. This Agreement shall not be binding on the Commission until approved by
the Commission.
Signed this 5th day of September, 1997.
JITNEY-JUNGLE CORPORATION OF AMERICA, INC., a corporation
By : /S/ Michael E. Julian
-------------------------------
Michael E. Julian
Chief Executive Officer and President
/S/ R. Barry Cannada
-------------------------------
R. Barry Cannada, Esq.
Butler, Snow, O'Mara, Stevens & Cannada, PLLC
Counsel for Jitney-Jungle Stores of America, Inc.
/S/ Stephen A. Stack, Jr.
-------------------------------
Stephen A. Stack, Jr., Esq.
Dechert Price & Rhoads
Counsel for Jitney-Jungle Stores of America, Inc.
<PAGE>
Asset Maintenance Agreement Page 8 of 9
BRUCKMANN, ROSSER, SHERRILL & CO., L.P., a limited partnership
By: /S/ Harold O. Rosser, II
-------------------------------
Harold O. Rosser, II
Managing Director
/S/ Stephen A. Stack, Jr.
-------------------------------
Stephen A. Stack, Jr., Esq.
Dechert Price & Rhoads
Counsel for Bruckmann, Rosser, Sherrill & Co., L.P.
DELTA ACQUISITION CORPORATION, a corporation
By: /S/ Michael E. Julian
-------------------------------
Michael E. Julian
President
/S/ R. Barry Cannada
-------------------------------
R. Barry Cannada, Esq.
Butler, Snow, O'Mara, Stevens & Cannada, PLLC
Counsel for Delta Acquisition Corporation
/S/ Stephen A. Stack, Jr.
-------------------------------
Stephen A. Stack, Jr., Esq.
Dechert Price & Rhoads
Counsel for Delta Acquisition Corporation
<PAGE>
Asset Maintenance Agreement Page 9 of 9
DELCHAMPS, INC., a corporation
By: /S/ David W. Morrow
-------------------------------
David W. Morrow
Chairman of the Board and Chief Executive Officer
/S/ Howard E. Sinor, Jr.
-------------------------------
Howard E. Sinor, Jr., Esq.
Jones, Walker, Waechter, Poitevent, Carrere & Denegre, L.L.P.
Counsel for Delchamps, Inc.
FEDERAL TRADE COMMISSION
By:
-------------------------------
Jay C. Shaffer
Acting General Counsel
