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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. ____)*
Smart & Final, Inc.
- -----------------------------------------------------------------
(Name of Issuer)
Common Stock, par value $0.01 per share
- -----------------------------------------------------------------
(Title of Class of Securities)
831683107
-------------------------------------------
(CUSIP Number)
Daniel S. Sternberg, Esq.
Cleary, Gottlieb, Steen & Hamilton
One Liberty Plaza
New York, New York 10006
(212) 225-2000
- -----------------------------------------------------------------
(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications)
March 29, 1997
---------------------------------------------------------
(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 Sections
240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following
box. [ ]
Note: Schedules filed in paper format shall include a signed
original and five copies of the schedule, including all exhibits.
See Section 240.13d-7(b) for other parties to whom copies are to
be sent.
*The remainder of this cover page shall be filled out for a
reporting person's initial filing on this form with respect to
the subject class of securities, and for any subsequent amendment
containing information which would alter disclosures provided in
a prior cover page.
The information required on 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 ("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).
<PAGE>
SCHEDULE 13D
- ----------------------- -----------------------
CUSIP No. 831683107 Page 2 of 17
- ----------------------- -----------------------
- ---------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Casino USA, Inc.
- ---------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [ ]
- ---------------------------------------------------------------------
3 SEC USE ONLY
- ---------------------------------------------------------------------
4 SOURCE OF FUNDS*
oo (See Item 3.)
- ---------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) [ ]
- ---------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
- ---------------------------------------------------------------------
7 SOLE VOTING POWER
NUMBER 12,415,925 (See Items 4 and 5.)
OF -----------------------------------------------------
SHARES 8 SHARED VOTING POWER
BENEFICIALLY
OWNED
BY -----------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER
REPORTING
PERSON 12,415,925 (See Items 4 and 5.)
WITH -----------------------------------------------------
10 SHARED DISPOSITIVE POWER
- ---------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
12,415,925 (See Items 4 and 5.)
- ---------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* [ ]
- ---------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
55.3% (See Items 4 and 5.)
- ---------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
CO
- ---------------------------------------------------------------------
<PAGE>
Item 1. Security and Issuer.
-------------------
This statement relates to the common stock, par value
$0.01 per share (the "Common Stock"), of Smart & Final, Inc., a
Delaware corporation (the "Company"), whose principal business
and executive office is located at 4700 South Boyle Avenue,
Vernon, California 90058.
Item 2. Identity and Background.
-----------------------
This statement is filed by Casino USA, Inc. ("Casino
USA"). Casino USA is a Delaware corporation, the principal
business of which is holding the equity securities of the
Company. The address of the principal business and executive
office of Casino USA is 524 Chapala Street, Santa Barbara,
California 93101. Certain information concerning the officers and
directors of Casino USA is set forth on Appendix I hereto.
Casino USA is a subsidiary of Casino
Guichard-Perrachon, S.A. (formerly Etablissements Economiques du
Casino, Guichard-Perrachon et Cie) ("Casino"). Casino is a
publicly-traded French societe anonyme. Casino and its
subsidiaries are principally engaged in the retail grocery,
restaurant, food production and other businesses in France and
elsewhere throughout the world. The address of the principal
business and executive office of Casino is 24, rue de la Montat,
42008 Saint-Etienne Cedex 2, France. Certain information
concerning the officers and directors of Casino is set forth on
Appendix II hereto.
Casino is ultimately controlled by Mr. Jean-Charles
Naouri. Mr. Naouri is a French citizen whose principal business
is making and managing investments. Mr. Naouri's principal
business address is 83, rue du Faubourg Saint Honore, 75008
Paris, France.
During the last five years, neither Casino USA, Casino
or Mr. Naouri, nor, to the best knowledge of Casino, any of the
persons listed on Appendix I or II, has been convicted in a
criminal proceeding (excluding traffic violations or similar
misdemeanors). During the last five years, neither Casino USA,
Casino or Mr. Naouri, nor, to the best knowledge of Casino, any
of the persons listed on Appendix I or II, has 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 a 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 3. Source and Amount of Funds or Other Consideration.
-------------------------------------------------
As more fully described under Item 4 below, pursuant
to the Transaction, on March 29, 1997, Casino USA acquired
1,625,000 newly-issued shares of Common Stock from the Company.
These shares were issued to Casino USA in partial payment for 91
properties acquired by the Company from Casino USA and Casino
Realty, Inc., a wholly-owned subsidiary of Casino USA ("Casino
Realty").
Page 3 of 17
<PAGE>
Item 4. Purpose of Transaction.
----------------------
Casino (through Casino USA) acquired the entire equity
interest in the Company's then parent company in 1984. In 1991
the Company again became a public company through an initial
public offering of Common Stock. Immediately prior to the
Transaction (described below), Casino USA owned 10,790,925 shares
of Common Stock, which at that time represented approximately 53%
of the then outstanding shares of Common Stock.
On March 29, 1997, Casino USA acquired from the
Company 1,625,000 shares of Common Stock (valued at $23.375 per
share for purposes of the Transaction) and two five-year
unsecured notes of the Company with an aggregate principal amount
of $38,000,000 in exchange for 91 properties (the "Properties")
with a net book value of approximately $71,440,000 (the
"Transaction"). Prior to the Transaction, the Properties were
owned by Casino USA and Casino Realty and were operated as Smart
& Final stores. The Transaction was consummated pursuant to an
Agreement for Conveyance of Real Property, dated as of October
31, 1996, amended by the First Amendment to Agreement for
Conveyance of Real Property, dated as of December 19, 1996 (as
amended, the "Transaction Agreement"). The Transaction Agreement
is incorporated herein by reference as Exhibit 1 hereto. Pursuant
to the Transaction Agreement, Casino USA and Casino Realty agreed
to pay the Company certain management and administrative fees in
an aggregate amount of $1,000,000, in three installments, the
last of which is due January 15, 1999.
As a result of its aggregate ownership of 55.3% of the
outstanding shares of Common Stock, Casino USA and, by virtue of
their control of Casino USA, Casino and Mr. Naouri, have the
power to direct the election of all of the members of the
Company's Board of Directors (the "Board of Directors"). The
following officers and directors of the Company (collectively,
the "Affiliated Parties") are affiliated with Casino USA and
Casino as described below: (i) Mr. Pierre Bouchut, a director of
the Company, is a director of Casino and its Director of Finance;
(ii) Jean-Louis Bourgier, a director of the Company, is a
director of Casino, (iii) Mr. Christian P. Couvreux, a director
of the Company, is the Executive Director and Deputy General
Manager of Casino, (iv) Mr. Robert J. Emmons, the Chairman of the
Board of Directors and Chief Executive Officer of the Company, is
the chairman of the board of directors, chief executive officer
and chief financial officer of Casino USA; (v) Antoine Guichard,
a director of the Company, is a director and the secretary of
Casino USA and the Chairman of the Executive Committee of Casino
and (vi) Etienne Snollaerts, a director of the Company, is a
director of Casino.
Except as set forth herein, neither Casino USA, Casino
or Mr. Naouri have any plans or proposals which would relate to
or result in any of the actions described in subparagraphs (a)
through (j) of Item 4 of Schedule 13D although they may consider
and explore from time to time a variety of alternatives with
respect to the Company which might involve one or more of such
actions. Additionally, the Affiliated Parties, in their capacity
as officers of the Company or members of the Board of Directors,
may, from time to time, propose that the Board of Directors
consider one or more of such actions.
Page 4 of 17
<PAGE>
Item 5. Interest in Securities of the Issuer.
------------------------------------
(a) and (b) Casino USA is the beneficial owner of
12,415,925 shares of Common Stock, which represent approximately
55.3% of the shares of Common Stock issued and outstanding (based
on 22,438,749 shares of Common Stock outstanding as set forth in
the Company's Quarterly Report on Form 10-Q for the quarter ended
March 29, 1998). Casino USA has the sole power to vote or to
direct the vote of, and the power to dispose or to direct the
disposition of, the Common Stock beneficially owned by it.
To the best knowledge of Casino USA (based solely on
the Company's Proxy Statement dated April 13, 1998), Mr. Emmons
and certain trusts under his control are the beneficial owners of
731,500 shares of Common Stock, which represent approximately
3.3% of the shares of Common Stock issued and outstanding. To the
best knowledge of Casino USA, Mr. Emmons has the sole power to
vote or direct the vote of, and the power to dispose or direct
the disposition of, the Common Stock beneficially owned by Mr.
Emmons and the above-mentioned trusts.
At the date hereof, to the best knowledge of Casino
USA, except as set forth herein or on Appendix I or II, neither
Casino, Mr. Naouri or any of the persons listed on Appendix I or
Appendix II beneficially owns any shares of Common Stock (other
than shares of Common Stock beneficially owned by Casino USA of
which one or more of such persons may be deemed to have
beneficial ownership pursuant to Rule 13d-3 under the Securities
Exchange Act of 1934, as amended).
(c) During the last sixty days, no transactions in
shares of Common Stock were effected by Casino USA, or to the
best of its knowledge, by Casino, Mr. Naouri or any of the
individuals listed on Appendix I or II.
(d) and (e) Not applicable.
Item 6. Contracts, Arrangements, Understandings or
Relationships with Respect to Securities of the Issuer.
-------------------------------------------------------
Stock Purchase Agreement. The Company, Mr. Emmons,
Casino and Casino USA are parties to a Stock Purchase Agreement,
dated as of March 7, 1989, as amended by the First Amendment to
Stock Purchase Agreement, dated as of December 29, 1996 (as
amended, the "Stock Purchase Agreement"). The Stock Purchase
Agreement is incorporated herein by reference as Exhibit 2
hereto. Pursuant to the Stock Purchase Agreement, Mr. Emmons is
obligated to purchase 1,890,000 shares of Common Stock from the
Company and Mr. Emmons and certain trusts under his control have
to date purchased a total of 1,747,000 such shares for total
aggregate consideration of approximately $7,858,100. Mr. Emmons
remains obligated to purchase the remaining 143,000 shares of
Common Stock at $8.90 per share by not later than March 7, 1999.
Pursuant to the Stock Purchase Agreement, Casino USA has a right
of first refusal to purchase any shares of Common Stock that are
proposed to be sold by Mr. Emmons. The Stock Purchase Agreement
also provides that Casino, until March 7, 1999, will cause its
shares of Common Stock to be voted for the election of Mr. Emmons
to the Board of Directors.
Page 5 of 17
<PAGE>
On July 1, 1998, the parties to the Stock Purchase
Agreement entered into the Second Amendment to Stock Purchase
Agreement pursuant to which Casino has also granted to Mr. Emmons
an option (the "Put Option") to sell to Casino or its designee,
and Casino has agreed to purchase upon exercise of such option,
up to 1,000,000 shares of Common Stock at a price per share equal
to 99.7% of the average of the per share closing prices of the
Common Stock as reported on the New York Stock Exchange Composite
Transactions Tape for the 22 trading days preceding the date on
which Mr. Emmons gives notice of his intent to exercise the Put
Option. The Put Option may be exercised by Mr. Emmons, in part
and from time to time, during the period commencing on January 1,
2000 and terminating on December 31, 2002. The Put Option may not
be exercised (i) at any time with respect to fewer than 50,000 or
more than 200,000 shares of Common Stock, (ii) within two months
of any prior exercise, or (iii) with respect to more than 400,000
shares of Common Stock in the aggregate during any one calendar
year. The Put Option will terminate immediately if at any time
prior to January 1, 2000 Emmons voluntarily resigns his position
as chief executive officer of the Company. The Second Amendment
to the Stock Purchase Agreement , dated as of July 1, 1998, is
incorporated herein by reference as Exhibit 3 hereto.
The Stock Purchase Agreement provides that in the
event the Company proposes to register any shares of Common Stock
or other securities under the Securities Act of 1933, as amended
(the "Securities Act"), the Company, subject to certain
limitations, must include in such registration all shares of
Common Stock that Mr. Emmons requests be included therein. The
Company is required to pay all the fees and expenses of any such
registration (excluding underwriting discounts relating to Mr.
Emmons' shares) and has agreed to indemnify Mr. Emmons against
certain liabilities that may arise in connection with any such
registration.
Registration Rights Agreement. The Company, Casino USA
and Mr. Emmons are parties to a Registration Rights Agreement,
dated as of August 6, 1991 (as amended, the "Registration
Agreement"), as amended by the First Amendment to Registration
Rights Agreement, dated as of August 6, 1996. The Registration
Agreement, including the amendment thereto, is incorporated
herein by reference as Exhibit 4 hereto. Pursuant to the
Registration Agreement, each of Casino USA and Mr. Emmons has the
right to require the Company to register shares of Common Stock
under the Securities Act. Each of Casino USA and Mr. Emmons may
make three demands for registration. The Company's obligation to
effect such registration is subject to certain limitations
including limitations relating to the number of shares to be
registered and the timing of such registrations. The Company is
not obligated to effect any such registration if, in the good
faith judgment of the Board of Directors, such registration would
have a material adverse effect on a pending or proposed public
offering of the Company's securities or certain other
transactions. In the event the Company proposes to register any
shares of Common Stock or other securities under the Securities
Act, the Company, subject to certain limitations, must include in
such registration all shares of Common Stock that Mr. Emmons or
Casino USA requests be included therein. The Company is required
to pay all the fees and expenses of any offering made pursuant to
the Registration Agreement (excluding underwriting discounts
relating to Mr. Emmons' or Casino USA's shares) and has agreed to
indemnify Mr. Emmons and Casino USA against certain liabilities
that may arise in connection with any such offering.
Page 6 of 17
<PAGE>
Except as set forth above, to the best knowledge of
Casino USA, there are no other contracts, arrangements,
understandings or relationships (legal or otherwise) among the
persons named in Item 2 and the persons named on Appendix I or II
or among such persons and any other person with respect to any
securities of the Company, including but not limited to, transfer
or voting of any of the securities of the Company, joint
ventures, loan or option arrangements, puts or calls, guarantees
of profits, division of profits or loss, or the giving or
withholding of proxies, or a pledge or contingency the occurrence
of which would give another person voting power or investment
power over securities of the Company.
Item 7. Material to be Filed as Exhibits.
--------------------------------
Exhibit 1 Transaction Agreement (together with amendment
thereto), incorporated herein by reference to
Exhibit 10.69 to the Company's Definitive Proxy
Statement dated February 19, 1997.
Exhibit 2 Stock Purchase Agreement (together with
certain of the amendments thereto), incorporated
herein by reference to Exhibit 10.6 to the
Company's Registration Statement on Form S-1
(Registration No. 33-41103) which became effective
on July 30, 1991.
Exhibit 3 Second Amendment to the Stock Purchase
Agreement, dated as of July 1, 1998.
Exhibit 4 Registration Rights Agreement (together with
amendment thereto) , incorporated herein by
reference to Exhibit 10.21 to the Company's Annual
Report for the fiscal year ended December 29, 1991
on Form 10-K, which was filed on March 24, 1992.
Page 7 of 17
<PAGE>
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: July 17, 1998
CASINO USA, INC.
By: /s/ Jane Orenstein
-----------------------
Name: Jane Orenstein
Title: Secretary
Page 8 of 17
<PAGE>
APPENDIX I
OFFICERS AND DIRECTORS OF CASINO USA
The following table sets forth the name, citizenship,
business address, position with Casino USA and present principal
occupation of each director and officer of Casino USA.
- --------------------------------------------------------------------------
Name, Position with Principal Address
Citizenship Casino USA Occupation
and Shares of
Common Stock
Beneficially
Owned
- --------------------------------------------------------------------------
Christian Director Chairman of the 24, rue de la
Couvreux Management Montat, 42008
(France) Board of Saint-Etienne,
23,059 Shares Casino Cedex 2,
France
- --------------------------------------------------------------------------
Pierre Bouchut Director Member of the 24, rue de la
(France) Management Montat, 42008
24,014 Shares Board; Chief Saint-Etienne,
Financial Cedex 2, France
Officer of
Casino
- --------------------------------------------------------------------------
Antoine Director and Member of the 24, rue de la
Guichard Secretary Supervisory Montat, 42008
(France) Board of Casino Saint-Etienne,
1,514 Shares Cedex 2,
France
- --------------------------------------------------------------------------
Robert J. Chairman, Chairman of the 4700 South
Emmons (United President, Board and Chief Boyle Avenue,
States) Chief Executive Executive Vernon,
731,500 Shares Officer and Officer of the California
Chief Financial Company 90058
Officer
- --------------------------------------------------------------------------
Wayne Geffen Assistant Assistant 4700 South
(United States) Secretary Comptroller of Boyle Avenue,
20 Shares the Company Vernon,
California
90058
- --------------------------------------------------------------------------
Mary McMahon Assistant Property 524 Chapala
(United States) Treasurer Manager of the Street, Santa
174 Shares Company Barbara,
California
93101
- --------------------------------------------------------------------------
Jane Orenstein Secretary Assistant 4700 South
(United States) General Boyle Avenue,
20 Shares Counsel of the Vernon,
Company California
90058
- --------------------------------------------------------------------------
Page 9 of 17
<PAGE>
APPENDIX II
OFFICERS AND DIRECTORS OF CASINO
The following table sets forth the name, business
address, position with Casino and present principal occupation
(if different) of each director and officer of Casino. Unless
otherwise indicated, each of persons listed below is a citizen of
France.
- ---------------------------------------------------------------------------
Name Position with Principal Address
Casino Occupation
- ---------------------------------------------------------------------------
Christian Chairman of the 24, rue de la
Couvreux Management Montat, 42008
Board Saint-Etienne,
Cedex 2, France
- ---------------------------------------------------------------------------
Pierre Bouchut Member of the 24, rue de la
Management Montat, 42008
Board; Chief Saint-Etienne,
Financial Cedex 2, France
Officer
- ---------------------------------------------------------------------------
Jean-Louis Manager -- 24, rue de la
Bourgier International Montat, 42008
and Affiliates Saint-Etienne,
Cedex 2, France
- ---------------------------------------------------------------------------
Etienne Manager -- Non- 24, rue de la
Snollaerts Food Purchasing Montat, 42008
and Logistics Saint-Etienne,
Cedex 2, France
- ---------------------------------------------------------------------------
Jean-Charles Chairman of the Chairman of 83, rue du
Naouri Supervisory Euris S.A. Faubourg Saint
Board Honore, 75008
Paris, France
- ---------------------------------------------------------------------------
Yves Guichard Vice- Chairman Director, 2, rue du
of the Eurosia Miromesnil,
Supervisory Place Beauvau,
Board 75008 Paris,
France
- ---------------------------------------------------------------------------
David Dautresme Member of the Managing 121, boulevard
Supervisory Partner, Lazard Haussmann,
Board Freres & Cie. 75008 Paris,
France
- ---------------------------------------------------------------------------
Francois de Member of the Director, Euris 83, rue du
Montaudouin Supervisory S.A. Faubourg Saint
Board Honore, 75008
Paris, France
- ---------------------------------------------------------------------------
Page 10 of 17
<PAGE>
- ---------------------------------------------------------------------------
Pierre Feraud Member of the Chairman, 83, rue du
Supervisory Fonciere Euris Faubourg Saint
Board S.A. Honore, 75008
Paris, France
- ---------------------------------------------------------------------------
Gerard Member of the Chairman of 1, rue
Supervisory Suez Lyonnaise d'Astorg, 75008
Mestrallet Board des Eaux Paris, France
- ---------------------------------------------------------------------------
Antoine Member of the 24, rue de la
Supervisory Montat, 42008
Guichard Board Saint-Etienne,
Cedex 2, France
- ---------------------------------------------------------------------------
Marc Ladreit de Member of the Chairman, 97, rue de
Lacharriere Supervisory Fimalac et Cie. Lille, 75007
Board Paris, France
- ---------------------------------------------------------------------------
Andre Crestey Member of the Chairman, 171, avenue
Supervisory Omnium de Charles de
Board Commerce et de Gaulle, 92521
Participations Neuilly sur
S.A. Seine, France
- ---------------------------------------------------------------------------
Gilles Member of the Director, 24, rue de la
Pinoncely Supervisory Eurosia Montat, 42008
Board Saint-Etienne,
Cedex 2, France
- ---------------------------------------------------------------------------
David de Member of the Statutory 17, avenue
Rothschild Supervisory Managing Matignon, 75008
Board Partner, Paris, France
Rothschild et
Cie. Banque
- ---------------------------------------------------------------------------
Page 11 of 17
<PAGE>
EXHIBIT INDEX
-------------
Exhibit Page
------- ----
1. Transaction Agreement (together with amendment *
thereto).
2. Stock Purchase Agreement (together with
amendments thereto). *
3. Second Amendment to the Stock Purchase
Agreement. 13
4. Registration Agreement (together with
amendment thereto). *
- ---------------
* incorporated by reference
Page 12 of 17
<PAGE>
Exhibit 3
SECOND AMENDMENT TO STOCK PURCHASE AGREEMENT
--------------------------------------------
SECOND AMENDMENT TO STOCK PURCHASE AGREEMENT (this
"Amendment"), dated as of July 1, 1998, between ROBERT J. EMMONS
("Emmons") and CASINO GUICHARD-PERRACHON, S.A., a French societe
anonyme ("Casino").
WHEREAS, Emmons and Casino, together with Smart &
Final Inc. (the "Company") and Casino USA, Inc. ("Casino USA"),
are parties to a certain Stock Purchase Agreement dated as of
March 7, 1989, as amended (the "Stock Purchase Agreement").
WHEREAS, the Stock Purchase Agreement provided for the
grant to Emmons of certain rights to require Casino to purchase
shares of common stock of the Company owned by Emmons, which
rights have expired by their terms.
WHEREAS, Emmons currently owns and may in the future
acquire certain shares of common stock of the Company and Casino,
as an inducement to Emmons to continue to serve as chief
executive officer of the Company, wishes to grant to Emmons an
option to sell to Casino certain of such shares on the terms and
conditions set forth below.
WHEREAS, Emmons and Casino wish to amend the Agreement
to provide for the grant of such option to Emmons and the Company
and Casino USA wish to consent to such Amendment.
NOW THEREFORE, the parties hereby agree as follows:
1. Grant of Option. (a) Casino hereby grants to Emmons
an option (the "Option") to sell to Casino (or a designee of
Casino), free and clear of any claims, liens, encumbrances,
security interests and charges of any nature whatsoever
("Liens"), and Casino hereby agrees to purchase (or to cause a
designee to purchase) upon exercise of the Option, up to an
aggregate of 1,000,000 shares of issued and outstanding common
stock, par value $0.01 per share, of the Company ("Shares"), at
the times, in the manner and subject to the limitations set forth
in this Amendment, at a purchase price per Share determined
separately for each exercise of the Option equal to 99.7% of the
average of the closing prices of the Shares on the New York Stock
Exchange, as reported on the New York Stock Exchange Composite
Transactions Tape, for the 22 trading days immediately preceding
the date on which the relevant Exercise Notice (as defined below)
is given (the "Exercise Price").
(b) Casino shall be entitled to designate one or more
other persons or entities (including Casino USA) as the purchaser
of all or a portion of the Shares to be purchased in connection
with any exercise of the Option (provided that if a sale to any
designee, other than Casino USA, results in Emmons incurring any
cost or fees that would not have been incurred in a sale directly
to Casino, such additional cost or fees shall be borne by Casino
(or its designee)).
Page 13 of 17
<PAGE>
2.
(c) The Option may be exercised by Emmons, in part,
from time to time during the period commencing on January 1, 2000
and terminating on December 31, 2002 (the "Option Period");
provided, however, that the Option may not be exercised (i) at
any one time with respect to fewer than 50,000 or more than
200,000 Shares, (ii) within two months of any prior exercise, or
(iii) with respect to more than 400,000 Shares in the aggregate
during any one calendar year. The Option shall terminate and
Casino shall have no further obligations hereunder after the
Option Period. Notwithstanding the foregoing, this Amendment and
the Option will terminate immediately if at any time on or prior
to December 31, 1999 Emmons voluntarily resigns his position as
chief executive officer of the Company.
2. Exercise of Option; Purchase of Shares. (a) In the
event Emmons wishes to exercise the Option, Emmons shall send a
written notice to Casino specifying the number of Shares he
wishes to sell, the Exercise Price applicable to such exercise
(together with a calculation of such Exercise Price) and an
account for the payment of the exercise price (an "Exercise
Notice"). Any Exercise Notice shall be irrevocable.
(b) Within 15 days from its receipt of any Exercise
Notice, Casino will notify Emmons in writing of a date not later
than 30 days from the date of such Exercise Notice for a closing
of the purchase of Shares pursuant to such Exercise Notice (a
"Closing") and the name of any designee purchaser(s) of Shares.
At each Closing, (a) Emmons will deliver to Casino (or its
designee(s)) (i) a certificate or certificates representing the
number of Shares being purchased in proper form for transfer upon
exercise of the Option and (ii) an opinion of counsel, reasonably
satisfactory in form and substance to Casino, to the effect that
the sale of Shares pursuant to the Option will not violate the
Securities Act of 1933 (or any applicable state law governing the
offer and sale of securities) and the rules and regulations
thereunder, and (b) Casino (or its designee(s)) shall pay the
aggregate purchase price for the Shares to be purchased at the
Closing by wire transfer to the account designated in the
Exercise Notice of immediately available funds in the amount of
the applicable Exercise Price times the number of Shares to be
purchased.
3. Representations and Warranties of Emmons. Emmons
represents and warrants to Casino (and its designees) that: (a)
this Amendment has been duly executed and delivered by Emmons and
constitutes a valid and legally binding obligation of Emmons
enforceable in accordance with its terms; (b) no authorization,
consent or approval of, or any filing with, any public body or
authority is necessary for consummation by Emmons of the
transactions contemplated hereby; and (c) any Shares sold to
Casino (or its designees) upon exercise of the Option will be
transferred free and clear of all Liens and Casino (or its
designees) will receive good title to all of such Shares, free
and clear of all Liens.
4. Representations and Warranties of Casino. Casino
represents and warrants to Emmons that: (a) this Amendment has
been duly authorized, executed and delivered by Casino and
constitutes a valid and legally binding obligation of Casino
enforceable in accordance with its terms; and (b) no
authorization, consent or approval of, or any filing with, any
public body or authority is necessary for consummation by Casino
of the transactions contemplated by this Amendment.
Page 14 of 17
<PAGE>
3.
5. Expenses. Each party hereto shall pay their own
expenses incurred in connection with this Amendment and any
exercise of the Option.
6. Entire Agreement; Amendment. This Amendment sets
forth the entire understanding and agreement between the parties
as to the matters covered herein and supersedes and replaces any
prior understanding, agreement or statement of intent, in each
case, written or oral, of any and every nature with respect
thereto (including in particular Sections 6.1 and 6.2 of the
Stock Purchase Agreement which are replaced in their entirety by
this Amendment). Except as expressly amended hereby, the Stock
Purchase Agreement shall remain in effect in all respects in
accordance with its terms. This Amendment may not be modified,
amended, altered or supplemented except upon the execution and
delivery of a written agreement executed by Emmons and Casino.
Except for the right of Casino to designate purchasers of Shares,
no party to this Amendment may assign any of their rights or
obligations under this Amendment without the prior written
consent of the other party hereto.
7. Counterparts. This Amendment may be executed in two
or more counterparts, each of which shall be deemed to be an
original, but each of which together shall constitute one and the
same document.
8. Governing Law. This Amendment shall be governed by
and construed in accordance with the laws of the State of
California, without regard to principles of conflicts of laws.
9. Binding Effect. This Amendment shall be binding
upon, inure to the benefit of, and be enforceable by the
successors and permitted assigns of the parties hereto. Nothing
expressed or referred to in this Amendment is intended or shall
be construed to give any person other than the parties to this
Amendment, or their respective successors or permitted assigns,
any legal or equitable right, remedy or claim under or in respect
of this Amendment or any provision contained herein. If any term
of this Amendment is held to be invalid, void or unenforceable,
the remainder of the terms of this Amendment shall remain in full
force and effect and shall in no way be affected, impaired or
invalidated.
10. Notices. All notices and other communications
hereunder shall be in writing and shall be given and shall be
deemed to have been duly given if delivered in person or sent by
facsimile transmission (followed by overnight courier) to the
parties as follows:
If to Emmons, to:
Robert Emmons
736 Cima Linda Lane
Santa Barbara, California 93108
Facsimile No.: 805.565.3183
Page 15 of 17
<PAGE>
4.
If to Casino, to:
Casino Guichard-Perrachon, S.A.
24, rue de la Montat
42008 Saint-Etienne Cedex 2
France
Facsimile No.: 011.33.4.77.45.39.90
Attention: Pierre Bouchut
with a copy to:
Cleary, Gottlieb, Steen & Hamilton
One Liberty Plaza
New York, New York 10006
Facsimile No.: 212.225.3999
Attention: Daniel S. Sternberg
or to such other address as either party may have
furnished to the other in writing in accordance herewith, except
that notices of change of address shall only be effective upon
receipt.
IN WITNESS WHEREOF, Emmons and Casino have duly
executed this Amendment as of the day and year first above
written.
_______________________
ROBERT J. EMMONS
CASINO GUICHARD-PERRACHON, S.A.
By: ______________________
Christian Couvreux
By: ______________________
Pierre Bouchut
Page 16 of 17
<PAGE>
5.
Consented to:
CASINO USA, INC.
By:______________________
SMART & FINAL INC.
By:______________________
Page 17 of 17
