<PAGE>
As filed with the Securities and Exchange Commission on November 3, 1999
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-4
REGISTRATION STATEMENT
Under
The Securities Act of 1933
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SUPERVALU INC.
(Exact name of registrant as specified in its charter)
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Delaware 5140 41-0617000
(State or other (Primary Standard (I.R.S. Employer
jurisdiction of Industrial Identification No.)
incorporation or Classification Code)
organization)
11840 Valley View Road
Eden Prairie, Minnesota 55344
(612) 828-4000
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
John P. Breedlove, Esq.
Secretary
SUPERVALU INC.
Eden Prairie, Minnesota 55344
(612) 828-4000
(Name, address, including zip code, and telephone number, including area
code, of agent for service)
Copy to:
Gary L. Tygesson, Esq.
Dorsey & Whitney LLP
220 South Sixth Street
Minneapolis, Minnesota 55402
(612) 340-8753
Facsimile: (612) 340-8738
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Approximate date of commencement of proposed sale to the public: As soon as
practicable after the effective date of this Registration Statement.
If any of the securities being registered on this Form are to be offered in
connection with the formation of a holding company and there is compliance with
General Instruction G, check the following box: [_]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering: [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earliest effective registration statement
for the same offering: [_]
CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
Proposed maximum
aggregate
Title of each class of Amount to be Proposed maximum offering Amount of
securities to be registered registered offering price price(1) registration fee
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<S> <C> <C> <C> <C>
7 7/8% Notes due 2009...... $350,000,000 100% $350,000,000 $97,300
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7 5/8% Notes due 2004...... $250,000,000 100% $250,000,000 $69,500
</TABLE>
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(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457.
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
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<PAGE>
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+The information in this prospectus is not complete and may be changed. We may +
+not sell these securities until the registration statement filed with the +
+Securities and Exchange Commission is effective. This prospectus is not an +
+offer to sell these securities and it is not soliciting an offer to buy these +
+securities in any state where the offer or sale is not permitted. +
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
SUBJECT TO COMPLETION, DATED NOVEMBER 3, 1999
PROSPECTUS
[LOGO OF SUPERVALU]
Exchange Offer For
$350,000,000
7 7/8% Notes due 2009
and
$250,000,000
7 5/8% Notes due 2004
. We are offering to exchange:
--new registered 7 7/8% Notes due 2009 for all of our outstanding
unregistered 7 7/8% Notes due 2009; and
--new registered 7 5/8% Notes due 2004 for all of our outstanding
unregistered 7 5/8% Notes due 2004.
. The exchange offer expires at 5:00 p.m., New York City time, on ,
1999, unless we extend it.
. The exchange will not be a taxable event for U.S. federal income tax
purposes.
. The terms of the new notes are substantially identical to those of the
original notes, except for the transfer restrictions and registration
rights relating to the original notes and except that the new notes will
not provide for the payment of additional interest under circumstances
relating to the timing of the exchange offer and will be issuable in
different authorized denominations than the old notes.
. The new notes will not trade on any national securities exchange and,
therefore, we do not anticipate that an active public market in the new
notes will develop.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or passed upon the
adequacy or accuracy of this prospectus. Any representation to the contrary is
a criminal offense.
The date of this prospectus is , 1999.
<PAGE>
TABLE OF CONTENTS
<TABLE>
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Page
----
<S> <C>
Prospectus Summary......................................................... 3
Forward-Looking Statements................................................. 8
Use of Proceeds............................................................ 8
The Exchange Offer......................................................... 9
Description of the New Notes............................................... 17
United States Federal Income Tax Considerations............................ 28
Plan of Distribution....................................................... 29
Legal Matters.............................................................. 30
Experts.................................................................... 30
Where You Can Find More Information........................................ 30
</TABLE>
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You should rely only on the information contained or incorporated by
reference in this document or to which we have referred you. We have not
authorized any other person to provide you with different information. This
document may only be used where it is legal to sell these securities. You
should assume that the information in this document is accurate as of the date
on the front cover of this prospectus only. Our business, financial condition,
results of operations and prospects may have changed since that date.
2
<PAGE>
PROSPECTUS SUMMARY
This summary highlights selected information and may not contain all the
information that is important to you. We encourage you to read the entire
prospectus, the documents incorporated by reference in this prospectus and the
other documents to which this prospectus refers. As used in this prospectus,
all references to "SUPERVALU," "we" and "us" and all similar references are to
SUPERVALU INC. and its consolidated subsidiaries, unless otherwise stated or
the context otherwise requires.
THE EXCHANGE OFFER
<TABLE>
<C> <S>
Exchange offer................... We are offering to exchange:
. $350 million in aggregate principal
amount of our 7 7/8% Notes due 2009 that
have been registered under the
Securities Act of 1933 for a like
principal amount of our outstanding
unregistered 7 7/8% Notes due 2009; and
. $250 million in aggregate principal
amount of our 7 5/8% Notes due 2004 that
have been registered under the
Securities Act for a like principal
amount of our outstanding unregistered 7
5/8% Notes due 2004.
For procedures for tendering, see "THE
EXCHANGE OFFER--Procedures for Tendering
Original Notes."
Resale without further We believe that you may resell or otherwise
registration.................... transfer the new notes received in the
exchange offer without complying with the
registration and prospectus delivery
provisions of the Securities Act so long as
you are not a broker-dealer and you meet
the following conditions:
. you are not our "affiliate" within the
meaning of Rule 405 under the Securities
Act;
. you acquire the new notes issued in the
exchange offer in the ordinary course of
your business; and
. you have no arrangement or understanding
with any person to participate in the
distribution of the new notes.
By signing the letter of transmittal and
tendering your original notes, you will be
making representations to this effect. You
may incur liability under the Securities
Act if:
. any of the representations listed above
are not true; and
. you transfer any new note issued to you
in the exchange offer without delivering
a prospectus meeting the requirements of
the Securities Act or an exemption from
the registration requirements under the
Securities Act.
We do not assume or indemnify you against
liability under these circumstances, which
means that we will not protect you against
any loss incurred as a result of this
liability under the Securities Act.
</TABLE>
3
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<TABLE>
<C> <S>
Restrictions on resale by broker- Each broker-dealer that has received new
dealers......................... notes for its own account in exchange for
original notes that were acquired as a
result of market-making or other trading
activities must acknowledge that it will
deliver a prospectus meeting the
requirements of the Securities Act in
connection with any resale of the new
notes. A broker-dealer may use this
prospectus in connection with any resale
for a period of 180 days after the end of
the exchange offer.
Expiration date.................. The exchange offer will expire at 5:00
p.m., New York City time, on , 1999,
unless we extend it.
Withdrawal rights................ You may withdraw your tender of original
notes at any time before the exchange offer
expires.
Federal income tax consequences.. The exchange of original notes for new
notes will not result in any income, gain
or loss to you for U.S. federal income tax
purposes.
Exchange agent................... Bankers Trust Company is serving as the
exchange agent in connection with the
exchange offer.
Consequence of failure to If you are eligible to participate in the
exchange........................ exchange offer and you do not tender your
original notes, you will not have further
exchange or registration rights and you
will continue to hold notes subject to
restrictions on transfer.
TERMS OF NEW NOTES
Issuer........................... SUPERVALU INC.
Notes offered.................... $350 million in principal amount of 7 7/8%
Notes due 2009, maturing on August 1, 2009.
The 7 7/8% Notes will accrue interest at a
rate of 7 7/8% per year, payable in arrears
on February 1 and August 1, beginning
February 1, 2000.
$250 million in principal amount of 7 5/8%
Notes due 2004, maturing on September 15,
2004. The 7 5/8% Notes will accrue interest
at a rate of 7 5/8% per year, payable in
arrears on March 15 and September 15,
beginning March 15, 2000.
The form and terms of the new notes will be
the same as the form and terms of the
original notes, except that:
. the new notes will have been registered
under the Securities Act;
. the new notes will not contain terms
providing for payments of additional
interest under circumstances relating to
the timing of the exchange offer.
. the new notes will be represented by
global notes in book-entry form; and
</TABLE>
4
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<TABLE>
<C> <S>
. the new notes will be issuable in
denominations of $1,000 and integral
multiples thereof.
Separate series.................. The 7 7/8% Notes due 2009 and the 7 5/8%
Notes due 2004 each constitute a separate
series under the related indenture.
Accordingly, the original and new 7 7/8%
Notes will vote together as a single class
for purposes of taking actions and
exercising rights under the indenture.
Likewise, the original and new 7 5/8% Notes
will vote together as a single class under
the indenture for those purposes. The 7
7/8% Notes and the 7 5/8% Notes will not
vote together as a class under the
indenture.
Interest calculations............ Based on a 360-day year of twelve 30-day
months.
Ranking.......................... The new notes will rank equally with all
other unsecured and unsubordinated
indebtedness of SUPERVALU.
Optional redemption.............. The new notes are redeemable by us prior to
their maturity.
Sinking fund..................... None.
Denominations.................... $1,000 and integral multiples of $1,000 in
excess thereof.
Absence of market for the notes.. The new notes are a new issue of securities
with no established trading market. We
currently have no intention to apply to
list the new notes on any securities
exchange or to seek their admission to
trading on any automated quotation system.
Accordingly, there can be no assurance as
to the development or liquidity of any
market for the new notes.
No limit on debt................. The indenture governing the new notes does
not limit the amount of debt that we may
issue or provide holders any protection
should we be involved in a highly leveraged
transaction.
Certain covenants................ The indenture contains covenants that,
among other things, limit the ability of
SUPERVALU and some of our subsidiaries to:
. issue, assume or guarantee additional
secured indebtedness; and
. engage in sale and lease-back
transactions.
These covenants are subject to important
exceptions and qualifications, which are
described under the heading "DESCRIPTION OF
THE NEW NOTES."
Events of default................ The 7 7/8% Notes and the 7 5/8% Notes each
constitutes a separate series under the
indenture and each of the following is an
event of default with respect to the notes
of the applicable series:
. our failure to pay principal of or
premium, if any, on any notes of the
respective series when due;
. our failure for 30 days to pay interest
when due on any notes of the respective
series when due;
</TABLE>
5
<PAGE>
<TABLE>
<C> <S>
. our failure to perform other covenants
with respect to the notes of the
respective series for 60 days after
receipt of notice of failure; and
. certain events of bankruptcy, insolvency
or reorganization of SUPERVALU.
Remedies......................... If any event of default occurs and is
continuing with respect to the 7 7/8%
Notes, the trustee under the indenture or
holders of at least 25% in aggregate
principal amount of outstanding 7 7/8%
Notes may declare the principal thereof
immediately due and payable. If any event
of default occurs and is continuing with
respect to the 7 5/8% Notes, the trustee
under the indenture or holders of at least
25% in aggregate principal amount of
outstanding 7 5/8% Notes may declare the
principal thereof immediately due and
payable.
</TABLE>
OUR BUSINESS
We are the nation's 10th largest supermarket retailer and largest food
distributor based on revenues. We operate three principal store formats at
retail, and sell food and non-food products at wholesale. As of September 11,
1999, we operated approximately 472 corporate retail stores under our principal
retail formats including price superstores, combination food and drug stores
and limited assortment stores under such retail banners as Cub Foods, Shop 'n
Save, Save-A-Lot, Shoppers Food Warehouse, Metro, Farm Fresh, bigg's, Scott's
Foods, Laneco and Hornbachers. Through our Save-A-Lot banner, as of September
11, 1999, we also supplied 807 licensed independent Save-A-Lot limited
assortment stores. Additionally, as of September 11, 1999, we were the primary
supplier of approximately 3,500 additional stores and a partial supplier of
approximately 1,300 additional stores in 48 states.
Our principal executive offices are located at 11840 Valley View Road, Eden
Prairie, Minnesota 55344. Our telephone number at this location is (612) 828-
4000.
6
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RATIOS OF EARNINGS TO FIXED CHARGES
The following table shows our ratios of earnings to fixed charges for the
periods indicated. This information should be read in conjunction with the
consolidated financial statements and the accompanying notes incorporated by
reference in this prospectus.
<TABLE>
<CAPTION>
Fiscal Year Ended
Year-to-date ----------------------------------------------------------------
28 Weeks Ended (52 Weeks)
-------------------- (52 Weeks) (53 Weeks) --------------------------------------
Sept. 11, Sept. 12, February 27, February 28, February 22, February 24, February 25,
1999 1998 1999 1998 1997 1996 1995
--------- --------- ------------ ------------ ------------ ------------ ------------
<S> <C> <C> <C> <C> <C> <C> <C>
Ratio of Earnings to
Fixed Charges:
Including one-time
items................. 4.14(a) 3.01 3.17 3.49(b) 2.72 2.63 1.03(c)
Excluding one-time
items................. 3.30 3.01 3.17 2.90 2.72 2.63 2.62
</TABLE>
- --------
(a) Reflects a pre-tax gain on the sale of Hazelwood Farms Bakeries of $163.7
million and a pre-tax restructuring charge of $103.6 million.
(b) Reflects a pre-tax gain on the sale of Shopko Stores, Inc. of $90.0
million.
(c) Reflects pre-tax restructuring and other charges of $244 million.
The ratios are presented on a consolidated basis. Earnings consist of
earnings from operations before income taxes, adjusted for the portion of fixed
charges deducted from those earnings. Fixed charges consist of interest on
indebtedness (including capital lease obligations), amortization of debt
expense and the portion of interest expense on operating leases we believe to
be representative of the interest factor.
7
<PAGE>
FORWARD-LOOKING STATEMENTS
This prospectus (including the information incorporated by reference herein)
contains forward-looking statements with respect to the financial condition,
results of operations, plans, objectives, future performance and business of
SUPERVALU, including, without limitation, statements preceded by, followed by
or that include the words "believes," "expects," "anticipates," "estimates" or
similar expressions. These forward-looking statements involve risks and
uncertainties. Actual results may differ materially from those contemplated by
the forward-looking statements due to, among others, matters described in the
documents incorporated by reference herein and the following factors:
. the nature and extent of the consolidation of the retail food and food
distribution industries and the ability of SUPERVALU to grow through
acquisitions and to assimilate the acquired entities;
. the competitive practices in the retail food and food distribution
industries;
. the ability of SUPERVALU to attract and retain customers for its food
distribution operations and to control food distribution costs; and
. the ability of SUPERVALU and its vendors, customers and others to
resolve Year 2000 issues in a timely manner.
See "WHERE YOU CAN FIND MORE INFORMATION."
USE OF PROCEEDS
This exchange offer is intended to satisfy our obligations under the
registration rights agreements entered into in connection with the issuance of
the original notes. We will not receive any cash proceeds from the issuance of
the new notes in the exchange offer.
The net proceeds from the sale of the original 7 7/8% Notes were
approximately $345.8 million, after deduction of offering expenses. We used the
net proceeds to finance part of the costs of the acquisition of Richfood
Holdings, Inc. on August 31, 1999 and for other general corporate purposes. The
net proceeds from the sale of the original 7 5/8% Notes were approximately
$247.8 million. We used the net proceeds to repay commercial paper we issued in
connection with the acquisition of Richfood.
8
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THE EXCHANGE OFFER
Purpose and Effect
We sold the original 7 7/8% Notes on August 4, 1999 and the original 7 5/8%
Notes on September 17, 1999 in transactions exempt from the registration
requirements of the Securities Act. Therefore, those notes are subject to
significant restrictions on resale. In connection with these issuances, we
entered into registration rights agreements with the initial purchasers under
which we agreed to file an exchange offer registration statement under the
Securities Act and, upon effectiveness of the registration statement, offer to
you the opportunity to exchange your original 7 7/8% Notes for a like principal
amount of registered 7 7/8% Notes and your original 7 5/8% Notes for a like
principal amount of registered 7 5/8% Notes.
Based on interpretations by the staff of the SEC found in no-action letters
issued to third parties, if you are not our "affiliate" within the meaning of
Rule 405 under the Securities Act, we believe that you may resell or otherwise
transfer the new notes that we are issuing to you in the exchange offer without
compliance with the registration and prospectus delivery provisions of the
Securities Act. However, the new notes must be acquired in the ordinary course
of your business. In addition, you must not engage in, intend to engage in or
have any arrangement or understanding with any person to participate in, a
distribution of the new notes.
If you tender in the exchange offer for the purpose of participating in a
distribution of the new notes, or if you are a broker-dealer who purchased the
original notes from us for resale pursuant to Rule 144A or any other available
exemption under the Securities Act, you cannot rely on the interpretations by
the staff of the SEC stated in these no-action letters. Instead, you must
comply with the registration and prospectus delivery requirements of the
Securities Act in connection with any sale or transfer, unless an exemption
from these requirements is otherwise available.
Further, each broker-dealer that receives new notes for its own account in
exchange for the original notes, where the broker-dealer acquired the original
notes as a result of market-making or other trading activities, must
acknowledge in a letter of transmittal that it will deliver a prospectus
meeting the requirements of the Securities Act in connection with any resales
of those new notes. The letter of transmittal states that by making this
acknowledgment and delivering a prospectus, a broker-dealer will not be deemed
to admit that it is an "underwriter" within the meaning of the Securities Act.
We have agreed that this prospectus may be used by a broker-dealer for resales
of new notes issued to it in the exchange offer for a period of 180 days after
the expiration date of the exchange offer. We have the right, under limited
circumstances, to suspend the use of this prospectus by broker-dealers, in
which case the 180-day period would be extended by a number of days equal to
the period of suspension. See "PLAN OF DISTRIBUTION."
Terms of the Exchange Offer
We are offering to exchange:
. $350 million in aggregate principal amount of our 7 7/8% Notes due 2009
that have been registered under the Securities Act for a like principal
amount of our outstanding unregistered 7 7/8% Notes due 2009; and
. $250 million in aggregate principal amount of our 7 5/8% Notes due 2004
that have been registered under the Securities Act for a like principal
amount of our outstanding unregistered 7 5/8% Notes due 2004.
Upon the terms and subject to the conditions set forth in this prospectus
and in the accompanying letter of transmittal, we will accept all original
notes validly tendered and not withdrawn before 5:00 p.m., New York City time,
on the expiration date of the exchange offer. We will issue $1,000 principal
amount of new notes in exchange for each $1,000 principal amount of outstanding
original notes we accept in the exchange offer. You may tender some or all of
your original notes under the exchange offer. However, the original notes are
9
<PAGE>
issuable in authorized denominations of $100,000 and integral multiples of
$1,000 in excess thereof. Accordingly, original notes may be tendered only in
denominations of $100,000 and integral multiples of $1,000 in excess thereof
and, if you do not tender all of your original notes, you must retain at least
$100,000 of original 7 7/8% Notes and at least $100,000 of original 7 5/8%
Notes, as the case may be. The exchange offer is not conditioned upon any
minimum amount of original notes being tendered.
The form and terms of the new notes will be the same as the form and terms
of the original notes, except that:
. the new notes will be registered under the Securities Act and, thus,
will not be subject to the restrictions on transfer or bear legends
restricting their transfer;
. all of the new notes will be represented by global notes in book-entry
form unless exchanged for notes in definitive certificated form under
the limited circumstances described under "DESCRIPTION OF THE NEW
NOTES--Global Notes and Book-Entry System;"
. the new notes will not provide for the payment of additional interest
under circumstances relating to the timing of the exchange offer; and
. the new notes will be issuable in denominations of $1,000 and integral
multiples thereof.
The new notes will evidence the same debt as the original notes and will be
issued under, and be entitled to the benefits of, the indenture, as
supplemented, governing the original notes.
The new notes will accrue interest from the most recent date to which
interest has been paid or, if no interest has been paid, from date of issuance
of the original notes of that series. Accordingly, registered holders of new
notes on the record date for the first interest payment date following the
completion of the exchange offer will receive interest accrued from the most
recent date to which interest has been paid or, if no interest has been paid,
from the date of issuance of the original notes of that series. However, if
that record date occurs prior to completion of the exchange offer, then the
interest payable on the first interest payment date following the completion of
the exchange offer will be paid to the registered holders of the original notes
on that record date.
In connection with the exchange offer, you do not have any appraisal or
dissenters' rights under the General Corporation Law of the State of Delaware
or the indenture, as supplemented. We intend to conduct the exchange offer in
accordance with the registration rights agreements and the applicable
requirements of the Securities Exchange Act of 1934 and the rules and
regulations of the SEC.
We will be deemed to have accepted validly tendered original notes when, as
and if we have given oral or written notice of our acceptance to the exchange
agent. The exchange agent will act as agent for the tendering holders for the
purpose of receiving the new notes from us.
If we do not accept any tendered notes because of an invalid tender or for
any other reason, we will return certificates for any unaccepted original notes
without expense to the tendering holder as promptly as practicable after the
expiration date.
Expiration Date; Amendments
The exchange offer will expire at 5:00 p.m., New York City time, on ,
1999, unless we, in our sole discretion, extend the exchange offer.
If we determine to extend the exchange offer, we will notify the exchange
agent of any extension by oral or written notice and give each registered
holder notice of the extension by means of a press release or other public
announcement before 9:00 a.m., New York City time, on the next business day
after the previously scheduled expiration date.
10
<PAGE>
We reserve the right, in our sole discretion, to delay accepting any
original notes, to extend the exchange offer or to amend or terminate the
exchange offer if any of the conditions described below under "--Conditions"
have not been satisfied or waived by giving oral or written notice to the
exchange agent of the delay, extension, amendment or termination. Further, we
reserve the right, in our sole discretion, to amend the terms of the exchange
offer in any manner. We will notify you as promptly as practicable of any
extension, amendment or termination.
Procedures for Tendering Original Notes
Any tender of original notes that is not withdrawn prior to the expiration
date will constitute a binding agreement between the tendering holder and us
upon the terms and subject to the conditions set forth in this prospectus and
in the accompanying letter of transmittal. A holder who wishes to tender
original notes in the exchange offer must do either of the following:
. properly complete, sign and date the letter of transmittal, including
all other documents required by the letter of transmittal; have the
signature on the letter of transmittal guaranteed if the letter of
transmittal so requires; and mail or deliver that letter of transmittal
and other required documents to the exchange agent at the address listed
below under "--Exchange Agent" on or before the expiration date; or
. if the original notes are tendered under the book-entry transfer
procedures described below, transmit to the exchange agent on or before
the expiration date an agent's message.
In addition, one of the following must occur:
. the exchange agent must receive certificates representing your original
notes, along with the letter of transmittal, on or before the expiration
date; or
. the exchange agent must receive a timely confirmation of book-entry
transfer of the original notes into the exchange agent's account at DTC
under the procedure for book-entry transfers described below, along with
the letter of transmittal or a properly transmitted agent's message, on
or before the expiration date; or
. the holder must comply with the guaranteed delivery procedures described
below.
The term "agent's message" means a message, transmitted by the book-entry
transfer facility to and received by the exchange agent and forming a part of
the book-entry confirmation, which states that the book-entry transfer facility
has received an express acknowledgment from the tendering participant stating
that the participant has received and agrees to be bound by the letter of
transmittal and that we may enforce the letter of transmittal against the
participant.
The method of delivery of original notes, the letter of transmittal and all
other required documents to the exchange agent is at your election and risk.
Rather than mail these items, we recommend that you use an overnight or hand
delivery service. In all cases, you should allow sufficient time to assure
timely delivery to the exchange agent before the expiration date. Do not send
letters of transmittal or original notes to us.
Generally, an eligible institution must guarantee signatures on a letter of
transmittal or a notice of withdrawal unless the original notes are tendered:
. by a registered holder of the original notes who has not completed the
box entitled "Special Issuance Instructions" or "Special Delivery
Instructions" on the letter of transmittal; or
. for the account of an eligible institution.
11
<PAGE>
If signatures on a letter of transmittal or a notice of withdrawal are
required to be guaranteed, the guarantee must be by a firm which is:
. a member of a registered national securities exchange;
. a member of the National Association of Securities Dealers, Inc.;
. a commercial bank or trust company having an office or correspondent in
the United States; or
. another "eligible institution" within the meaning of Rule 17Ad-15 under
the Securities Exchange Act.
If the letter of transmittal is signed by a person other than the registered
holder of any outstanding original notes, the original notes must be endorsed
or accompanied by appropriate powers of attorney. The power of attorney must be
signed by the registered holder exactly as the registered holder(s) name(s)
appear(s) on the original notes and an eligible institution must guarantee the
signature on the power of attorney.
If the letter of transmittal or any original notes or powers of attorney are
signed by trustees, executors, administrators, guardians, attorneys-in-fact,
officers of corporations or others acting in a fiduciary or representative
capacity, these persons should so indicate when signing. Unless waived by us,
they should also submit evidence satisfactory to us of their authority to so
act.
If you wish to tender original notes that are registered in the name of a
broker, dealer, commercial bank, trust company or other nominee, you should
promptly instruct the registered holder to tender on your behalf. If you wish
to tender on your behalf, you must, before completing the procedures for
tendering original notes, either register ownership of the original notes in
your name or obtain a properly completed bond power from the registered holder.
The transfer of registered ownership may take considerable time.
We will determine in our sole discretion all questions as to the validity,
form, eligibility, including time of receipt, and acceptance of original notes
tendered for exchange. Our determination will be final and binding on all
parties. We reserve the absolute right to reject any and all tenders of
original notes not properly tendered or original notes our acceptance of which
might, in the judgment of our counsel, be unlawful. We also reserve the
absolute right to waive any defects, irregularities or conditions of tender as
to any particular original notes. Our interpretation of the terms and
conditions of the exchange offer, including the instructions in the letter of
transmittal, will be final and binding on all parties. Unless waived, any
defects or irregularities in connection with tenders of original notes must be
cured within the time period we determine. Neither we, the exchange agent nor
any other person will incur any liability for failure to give you notification
of defects or irregularities with respect to tenders of your original notes.
By tendering, you will represent to us that, among other things:
. the new notes acquired in the exchange offer are being acquired in the
ordinary course of business of the person receiving the new notes;
. neither you nor any other person receiving your new notes has any
arrangement or understanding with any person to participate in the
distribution of the new notes; and
. neither you nor any other person receiving your new notes is our
"affiliate," as defined under Rule 405 of the Securities Act.
If you or the person receiving your new note is our "affiliate," as defined
under Rule 405 of the Securities Act, or is participating in the exchange offer
for the purpose of distributing the new notes, you or that other person (1)
cannot rely on the applicable interpretations of the staff of the SEC and (2)
must comply with the registration and prospectus delivery requirements of the
Securities Act in any resale transaction.
If you are a broker-dealer and you will receive new notes for your own
account in exchange for old notes, where such old notes were acquired as a
result of market-making activities or other trading activities, you must
acknowledge that you will deliver a prospectus in connection with any resale of
the new notes.
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Acceptance of Original Notes for Exchange; Delivery of New Notes
Upon satisfaction of all conditions to the exchange offer, we will accept,
promptly after the expiration date, all original notes properly tendered and
will issue the new notes promptly after acceptance of the original notes.
For purposes of the exchange offer, we shall be deemed to have accepted
properly tendered original notes for exchange when, as and if we have given
oral or written notice of that acceptance to the exchange agent. For each
original note accepted for exchange, you will receive a new note having a
principal amount equal to that of the surrendered original note.
In all cases, we will issue new notes for original notes that we have
accepted for exchange under the exchange offer only after the exchange agent
timely receives (1) certificates for your original notes or a timely
confirmation of book-entry transfer of your original notes into the exchange
agent's account at DTC and (2) a properly completed and duly executed letter of
transmittal and all other required documents or a properly transmitted agent's
message. If we do not accept any tendered original notes for any reason set
forth in the terms of the exchange offer or if you submit original notes for a
greater principal amount than you desire to exchange, we will return the
unaccepted or non-exchanged original notes without expense to you. In the case
of original notes tendered by book-entry transfer into the exchange agent's
account at DTC under the book-entry procedures described below, we will credit
the non-exchanged original notes to your account maintained with DTC.
Book-Entry Transfer
We understand that the exchange agent will make a request within two
business days after the date of this prospectus to establish accounts for the
original notes at DTC for the purpose of facilitating the exchange offer, and
any financial institution that is a participant in DTC's system may make book-
entry delivery of original notes by causing DTC to transfer the original notes
into the exchange agent's account at DTC in accordance with DTC's procedures
for transfer. Although delivery of original notes may be effected through book-
entry transfer at DTC, the exchange agent must receive a properly completed and
duly executed letter of transmittal with any required signature guarantees, or
an agent's message instead of a letter of transmittal, and all other required
documents at its address listed below under "--Exchange Agent" on or before the
expiration date, or if you comply with the guaranteed delivery procedures
described below, within the time period provided under those procedures.
Guaranteed Delivery Procedures
If you wish to tender your original notes and your original notes are not
immediately available, or you cannot deliver your original notes, the letter of
transmittal or any other required documents or comply with DTC's procedures for
transfer before the expiration date, then you may participate in the exchange
offer if:
(1) the tender is made through an eligible institution;
(2) before the expiration date, the exchange agent receives from the
eligible institution a properly completed and duly executed notice of
guaranteed delivery, substantially in the form provided by us, by
facsimile transmission, mail or hand delivery, containing (a) the name
and address of the holder and the principal amount of original notes
tendered, (b) a statement that the tender is being made thereby and (c)
a guarantee that within three New York Stock Exchange trading days
after the expiration date, the certificates representing the original
notes in proper form for transfer or a book-entry confirmation and any
other documents required by the letter of transmittal will be deposited
by the eligible institution with the exchange agent; and
(3) the exchange agent receives the properly completed and executed letter
of transmittal as well as certificates representing all tendered
original notes in proper form for transfer, or a book-entry
confirmation, and all other documents required by the letter of
transmittal within three New York Stock Exchange trading days after the
expiration date.
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Withdrawal Rights
You may withdraw your tender of original notes at any time before the
expiration date of the exchange offer.
For a withdrawal to be effective, the exchange agent must receive a written
notice of withdrawal at its address listed below under "--Exchange Agent." The
notice of withdrawal must:
. specify the name of the person who tendered the original notes to be
withdrawn;
. identify the original notes to be withdrawn, including the principal
amount, or, in the case of original notes tendered by book-entry
transfer, the name and number of the DTC account to be credited, and
otherwise comply with the procedures of DTC; and
. if certificates for original notes have been transmitted, specify the
name in which those original notes are registered if different from that
of the withdrawing holder.
If you have delivered or otherwise identified to the exchange agent the
certificates for original notes, then, before the release of such certificates,
you must also submit the serial numbers of the particular certificates to be
withdrawn and a signed notice of withdrawal with signatures guaranteed by an
eligible institution, unless the holder is an eligible institution.
We will determine in our sole discretion all questions as to the validity,
form and eligibility, including time of receipt, of notices of withdrawal. Our
determination will be final and binding on all parties. Any original notes so
withdrawn will be deemed not to have been validly tendered for purposes of the
exchange offer. We will return any original notes that have been tendered but
that are not exchanged for any reason to the holder, without cost, as soon as
practicable after withdrawal, rejection of tender or termination of the
exchange offer. In the case of original notes tendered by book-entry transfer
into the exchange agent's account at DTC, the original notes will be credited
to an account maintained with DTC for the original notes. You may retender
properly withdrawn original notes by following one of the procedures described
under "--Procedures for Tendering Original Notes" at any time on or before the
expiration date.
Conditions
Notwithstanding any other term of the exchange offer, we will not be
required to accept for exchange, or exchange new notes for, any original notes
if:
(1) any action or proceeding is instituted or threatened in any court or
by or before any governmental agency with respect to the exchange offer
which, in our judgment, would reasonably be expected to impair our ability
to proceed with the exchange offer; or
(2) the exchange offer, or the making of any exchange by a holder of
original notes, would violate any applicable law or applicable
interpretation by the staff of the SEC.
The conditions listed above are for our sole benefit and we may assert them
regardless of the circumstances giving rise to any condition. We may waive
these conditions in our discretion in whole or in part at any time and from
time to time. If we fail at any time to exercise any of the above rights, the
failure will not be deemed a waiver of those rights, and those rights will be
deemed ongoing rights which may be asserted at any time and from time to time.
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Exchange Agent
Bankers Trust Company is the exchange agent for the exchange offer. You
should direct any questions and requests for assistance and requests for
additional copies of this prospectus, the letter of transmittal or the notice
of guaranteed delivery to the exchange agent addressed as follows:
By Overnight Mail, By Hand:
Courier or
By Mail:
Bankers Trust Company BT Services Tennessee,
Telegram: Inc.
Corporate Trust & Agency Services
BT Services Tennessee, Attn: Reorganization Department Reorganization Unit
Inc. Receipt & Delivery P.O. Box 292737
Corporate Trust & Agency Window Nashville, TN 37229-
Services 123 Washington Street, 2737
Reorganization Unit 1st floor
648 Grassmere Park Road New York, NY 10006
Nashville, TN 37211
By Facsimile Transmission:
(615) 835-3701 For Information Call:
(800) 735-7777
Confirm by Telephone:
(615) 835-3572
Delivery of the letter of transmittal to an address other than as listed
above or transmission via facsimile other than as listed above will not
constitute a valid delivery of the letter of transmittal.
Fees and Expenses
We will pay the expenses of the exchange offer. We will not make any
payments to brokers, dealers or others soliciting acceptances of the exchange
offer. We are making the principal solicitation by mail; however, our officers
and employees may make additional solicitations by facsimile transmission, e-
mail, telephone or in person. You will not be charged a service fee for the
exchange of your notes, but we may require you to pay any transfer or similar
government taxes in certain circumstances.
Transfer Taxes
You will not be obligated to pay any transfer taxes, unless you instruct us
to register new notes in the name of, or request that original notes not
tendered or not accepted in the exchange offer be returned to, a person other
than the registered tendering holder.
Consequences of Failure to Exchange Original Notes
If you are eligible to participate in the exchange offer but do not tender
your original notes, you will not have any further registration rights. Your
original notes will continue to be subject to restrictions on transfer.
Accordingly, you may resell the original notes that are not exchanged only:
. to us;
. so long as the original notes are eligible for resale under Rule 144A
under the Securities Act, to a person whom you reasonably believe is a
"qualified institutional buyer" within the meaning of Rule 144A
purchasing for its own account or for the account of a qualified
institutional buyer in a transaction meeting the requirements of Rule
144A;
. in accordance with Rule 144 under the Securities Act or another
exemption from the registration requirements of the Securities Act;
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. to an institutional accredited investor (as defined in Rule 501(a)(1),
(2), (3) or (7) under the Securities Act) that is acquiring the notes
for its own account or for the account of an institutional accredited
investor for investment purposes and not with a view to, or for offer or
sale in connection with, any distribution in violation of the Securities
Act; or
. under any effective registration statement under the Securities Act;
in each case in accordance with all other applicable securities laws. We do not
intend to register the original notes under the Securities Act.
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DESCRIPTION OF THE NEW NOTES
You can find the definitions of some terms used in this description under
the caption "--Certain Definitions." Unless otherwise stated or the context
otherwise requires, references in this section to:
. the "7 7/8% Notes" are references to the original and new 7 7/8% Notes,
collectively;
. the "7 5/8% Notes" are references to the original and new 7 5/8% Notes,
collectively;
. the "notes" are references to the 7 7/8% Notes and 7 5/8% Notes,
collectively; and
. the "indenture" are references to the indenture dated as of July 1,
1987, as supplemented, between us and Bankers Trust Company, as trustee.
We will issue the new notes under the indenture. A copy of the indenture and
each supplemental indenture have been filed as exhibits to, or incorporated by
reference into, the registration statement which includes this prospectus. The
terms of the new notes include those stated in the indenture and those made
part of the indenture by reference to the Trust Indenture Act. Section
references below are to the sections in the indenture.
The following description of the material provisions of the indenture is
only a summary. We urge you to read the indenture because it, and not this
description, defines your rights as holders of the new notes.
General
The indenture does not limit the amount of debt securities we may issue. We
may issue additional debt securities under the indenture in one or more series,
from time to time. As used in this section, references to "debt securities"
mean debt securities issued under the indenture. The 7 7/8% Notes and the 7
5/8% Notes each constitute a separate series of debt securities under the
indenture. The original notes and new notes of each series will vote together
as a single class for purposes of determining whether holders of the requisite
percentage in principal amount of that series have taken actions or exercised
rights they are entitled to take or exercise under the indenture.
The new notes will be unsecured and unsubordinated obligations of SUPERVALU
and will rank equally and ratably with our other unsecured and unsubordinated
indebtedness.
The new notes will not be entitled to the benefit of any sinking fund or
other mandatory redemption provisions. The notes will be subject to redemption
at our option as described below under "--Optional Redemption."
The new notes will be issued only in fully registered form without coupons,
in denominations of $1,000 and integral multiples of $1,000. The new notes
initially will be issued in the form of global notes in book-entry form. The
Depository Trust Company will act as the depositary for the global notes. We
expect that payments of principal, premium, if any, and interest to owners of
beneficial interests in global notes will be made in accordance with the
procedures of DTC and its participants in effect from time to time.
If any interest payment date, redemption date or maturity date of any of the
notes is not a business day at any place of payment, then payment of principal,
premium, if any, and interest need not be made at that place of payment on that
date but may be made on the next succeeding business day at that place of
payment, and no interest will accrue on the amount payable for the period from
and after that interest payment date, redemption date or maturity date, as the
case may be.
We will not be required to (1) issue, register the transfer of or exchange
notes during the period beginning at the opening of business 15 days before any
selection of notes to be redeemed and ending at the close of business on the
day of mailing of the notice of redemption or (2) register the transfer of or
exchange any note, or portion thereof, called for redemption, except the
unredeemed portion of any note being redeemed in part.
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The indenture does not limit the amount of indebtedness that we or our
subsidiaries may issue. The indenture does not contain covenants or other
provisions designed to afford holders of the notes protection in the event of a
highly leveraged transaction, change in credit rating or other similar
occurrence.
There has not been any public market for the original notes, and we do not
intend to list the new notes on any securities exchange or to seek their
admission to trading on any automated quotation system. Accordingly, there can
be no assurance as to the development or liquidity of any trading market for
the new notes. If a trading market does not develop or is not maintained, you
may experience difficulty in reselling new notes, or you may be unable to sell
them at all.
If a public trading market develops for the new notes, it may not be liquid
and it may be discontinued at any time. Moreover, future trading prices of the
new notes would depend on many factors, including, among others, prevailing
interest rates, our operating results and the market for similar securities.
Depending on prevailing interest rates, our financial condition, the market for
similar securities and other factors, the new notes could trade at a discount
from their principal amount.
We expect that interests in the global notes will trade in DTC's Same-Day
Funds Settlement System and secondary market trading activity in these
interests will therefore be required by DTC to settle in immediately available
funds.
Maturity, Interest and Principal of the Notes
The 7 7/8% Notes will be limited in aggregate principal amount to $350
million and will mature on August 1, 2009. Interest on the 7 7/8% Notes will
accrue at a rate of 7 7/8% per annum and will be payable semiannually in
arrears on each February 1 and August 1, commencing February 1, 2000, to
holders of record of the notes on the immediately preceding January 15 and July
15. Interest will accrue from August 4, 1999, the date of issuance of the
original 7 7/8% Notes, or, if interest has already been paid, from the date it
was most recently paid. Interest will be computed on the basis of a 360-day
year of twelve 30-day months.
The 7 5/8% Notes will be limited in aggregate principal amount of $250
million and will mature on September 15, 2004. Interest on the 7 5/8% Notes
will accrue at a rate of 7 5/8% per annum and will be payable semiannually in
arrears on each March 15 and September 15, commencing March 15, 2000, to
holders of record of the notes on the immediately preceding March 1 and
September 1. Interest will accrue from September 17, 1999, the date of issuance
of the original 7 5/8% Notes, or, if interest has already been paid, from the
date it was most recently paid. Interest will be computed on the basis of a
360-day year of twelve 30-day months.
Optional Redemption
We will have the right to redeem the notes, as a whole at any time or from
time to time in part, upon at least 30 days notice mailed to the registered
address of each holder of the notes to be redeemed. We will pay a redemption
price equal to the greater of
(1) 100% of the principal amount of the notes of each series to be
redeemed; and
(2)the sum of the present values of the Remaining Scheduled Payments on the
notes of each series to be redeemed, discounted to the applicable
redemption date on a semiannual basis (assuming a 360-day year consisting
of twelve 30-day months) at a rate per annum equal to the sum of the
Treasury Rate plus 25 basis points
plus, in either case, accrued interest on the principal amount being redeemed
to the redemption date. However, installments of interest on notes which are
due and payable on an interest payment date falling on or prior to the relevant
redemption date will be payable to the holders of those notes registered as
such at the close of business on the relevant record date.
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"Treasury Rate" means, for any redemption date for the notes of any series,
the rate per annum equal to the semiannual equivalent yield to maturity of the
Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue
(expressed as a percentage of its principal amount) equal to the Comparable
Treasury Price for that redemption date.
"Comparable Treasury Issue" means, with respect to any redemption date for
the notes of any series, the United States Treasury security, selected by a
Reference Treasury Dealer appointed by us, as having a maturity comparable to
the remaining term of the notes of that series to be redeemed that would be
utilized, at the time of selection and in accordance with customary financial
practice, in pricing new issues of corporate debt securities of comparable
maturity to the remaining term of those notes.
"Comparable Treasury Price" means, for any redemption date, (1) the average
of the four Reference Treasury Dealer Quotations for that redemption date after
excluding the highest and lowest of those Reference Treasury Dealer Quotations
or (2) if the trustee obtains fewer than four Reference Treasury Dealer
Quotations, the average of all the quotations actually obtained by the trustee.
"Reference Treasury Dealer" means each of Merrill Lynch, Pierce, Fenner &
Smith Incorporated, Goldman, Sachs & Co., Salomon Smith Barney Inc. and U.S.
Bancorp Piper Jaffray Inc. and their respective successors; provided, however,
that if any of the foregoing shall cease to be a primary U.S. Government
securities dealer in New York City (a "Primary Treasury Dealer"), we will
substitute therefor another Primary Treasury Dealer.
"Reference Treasury Dealer Quotations" means, for each Reference Treasury
Dealer and any redemption date for the notes of any series, the average, as
determined by the trustee, of the bid and asked prices for the Comparable
Treasury Issue (expressed in each case as a percentage of its principal amount)
quoted in writing to the trustee by that Reference Treasury Dealer at 5:00
p.m., New York City time, on the third business day preceding that redemption
date. As used in this paragraph, the term "business day" means each Monday,
Tuesday, Wednesday, Thursday and Friday that is not a day on which banking
institutions in The City of New York are authorized or obligated by law or
executive order to close.
"Remaining Scheduled Payments" means, for each note of any series to be
redeemed, the remaining scheduled payments of principal of and interest on that
note that would be due after the related redemption date but for that
redemption; provided that if that redemption date is not an interest payment
date with respect to that note, the amount of the next succeeding scheduled
interest payment on that note will be reduced by the amount of interest accrued
on that note to that redemption date.
On and after the redemption date, interest will cease to accrue on the notes
or any portions of the notes called for redemption (unless we default in the
payment of the redemption price and accrued interest). On or before the
redemption date, we will deposit with a paying agent (or the trustee) money
sufficient to pay the redemption price of and accrued interest on the notes to
be redeemed on that date. If less than all of the notes of a series are to be
redeemed, the particular notes to be redeemed will be selected by a method the
trustee deems fair and appropriate.
Certain Covenants
Restrictions on Liens. The indenture provides that we will not, and we will
not permit any Domestic Subsidiary to, issue, assume or guarantee any Debt if
the Debt is secured by any mortgage, security interest, pledge, lien or other
encumbrance ("mortgage") upon any Operating Property of SUPERVALU or any
Domestic Subsidiary or upon any shares of stock or indebtedness of any Domestic
Subsidiary, whether owned at the date of the indenture or thereafter acquired,
without effectively securing the debt securities equally and ratably with the
Debt. This restriction does not apply to:
(1) mortgages on any property acquired, constructed or improved by us or
any Domestic Subsidiary after July 1, 1987, which are created or assumed
contemporaneously with, or within 180 days after, that
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acquisition or completion of that construction or improvement (or within
six months thereafter pursuant to a firm commitment for financing
arrangements entered into within the 180-day period) to secure or provide
for the payment of all or any part of the purchase price or cost thereof
incurred after July 1, 1987, or mortgages existing on property at the time
of its acquisition (including acquisition through merger or consolidation);
(2) mortgages on property of any corporation existing at the time it
becomes a Domestic Subsidiary;
(3) mortgages to secure Debt of a Domestic Subsidiary to SUPERVALU or to
another Domestic Subsidiary;
(4) mortgages in favor of governmental bodies to secure partial
progress, advance or other payments pursuant to any contract or statute or
to secure indebtedness incurred to finance the purchase price or cost of
constructing or improving the property subject to the mortgages; or
(5) mortgages for extending, renewing or replacing Debt secured by any
mortgage referred to in clauses (1) to (4), inclusive, above or in this
clause (5) or any mortgage existing on the date that debt securities were
first issued under the indenture, provided that the principal amount of the
new Debt secured by the relevant mortgage does not exceed the principal
amount of the Debt so secured at the time of the extension, renewal or
replacement and that the extension, renewal or replacement is limited to
all or a part of the property which secured the mortgage so extended,
renewed or replaced and improvements on that property.
This restriction does not apply to the issuance, assumption or guarantee by
us or any Domestic Subsidiary of a Debt secured by a mortgage which would
otherwise be subject to the foregoing restrictions up to an aggregate amount
which, together with all other secured Debt of SUPERVALU and our Domestic
Subsidiaries (not including secured Debt permitted under the foregoing
exceptions) and the Value of Sale and Lease-back Transactions existing at that
time (other than Sale and Lease-back Transactions the proceeds of which have
been applied to the retirement of debt securities or of Funded Debt or to the
purchase of other Operating Property, and other than Sale and Lease-back
Transactions in which the property involved would have been permitted to be
mortgaged under clause (1) above), does not exceed the greater of $200,000,000
or 10% of Consolidated Net Tangible Assets. (Section 1007)
Restrictions on Sale and Lease-back Transactions. The indenture provides
that we will not, and we will not permit any Domestic Subsidiary to, enter
into any Sale and Lease-back Transaction unless the net proceeds of the Sale
and Lease-back Transactions are at least equal to the fair value (as
determined by the Board of Directors or the President or any Vice President of
SUPERVALU) of the Operating Property to be leased and either:
(a) SUPERVALU or the Domestic Subsidiary would be entitled to incur Debt
secured by a mortgage on the property to be leased without securing the
debt securities, pursuant to clause (1) of the first paragraph or pursuant
to the second paragraph under "--Certain Covenants--Restrictions on Liens;"
or
(b) the Value thereof would be an amount permitted under the second
paragraph under "--Certain Covenants--Restrictions on Liens;" or
(c) SUPERVALU, within 120 days of the effective date of any such
arrangement (or in the case of (iii) below, within six months thereafter
pursuant to a firm purchase commitment entered into within such 120 day
period), applies an amount equal to the fair value (as so determined) of
the Operating Property:
(i) to the redemption or repurchase of debt securities;
(ii) to the payment or other retirement of certain Funded Debt of
SUPERVALU or a Domestic Subsidiary; or
(iii) to the purchase of Operating Property (other than that involved
in the Sale and Lease-back Transaction). (Section 1008)
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Other than the above-described covenants, there are no covenants or
provisions contained in the indenture which may afford holders of notes
protection in the event of a highly leveraged transaction involving SUPERVALU.
Certain Definitions
The term "Consolidated Net Tangible Assets" means the total of all the
assets appearing on the consolidated balance sheet of SUPERVALU and its
Subsidiaries less the following:
(1) current liabilities, including liabilities for indebtedness maturing
more than 12 months from the date of original creation thereof but maturing
within 12 months from the date of determination;
(2) reserves for depreciation and other asset valuation reserves;
(3) intangible assets including, without limitation, such items as
goodwill, trademarks, trade names, patents and unamortized debt discount
and expenses; and
(4) appropriate adjustments on account of minority interests of other
Persons holding stock in any Subsidiary. (Section 101)
The term "Debt" means all indebtedness for money borrowed.
The term "Domestic Subsidiary" means any Subsidiary which owns an Operating
Property. (Section 101)
The term "Funded Debt" means any Debt which by its terms matures at or is
extendible or renewable at the sole option of the obligor without requiring
the consent of the obligee to a date more than 12 months after the date of the
creation of that Debt.
The term "Operating Property" means any manufacturing or processing plant,
office facility, retail store, warehouse, distribution center or equipment
located within the United States of America or its territories or possessions
and owned and operated now or hereafter by SUPERVALU or any Domestic
Subsidiary and having a book value on the date as of which the determination
is being made of more than 0.65% of Consolidated Net Tangible Assets. (Section
101)
The term "Person" means any individual, corporation, partnership, joint
venture, association, joint stock company, trust, unincorporated organization
or government or any agency or political subdivision thereof.
The term "Sale and Lease-back Transaction" means any arrangement with any
Person providing for the leasing to SUPERVALU or any Domestic Subsidiary of
any Operating Property (except for temporary leases for a term, including any
renewal thereof, of not more than 36 months and except for leases between
SUPERVALU and a Domestic Subsidiary or between Domestic Subsidiaries), which
Operating Property has been or is to be sold or transferred by SUPERVALU or
such Domestic Subsidiary to that Person.
The term "Subsidiary" means a corporation more than 50% of the outstanding
voting stock of which is owned, directly or indirectly, by SUPERVALU or by one
or more other Subsidiaries, or by SUPERVALU and one or more other
Subsidiaries. For the purposes of this definition, "voting stock" means stock
which ordinarily has voting power for the election of directors, whether at
all times or only so long as no senior class of stock has such voting power by
reason of any contingency.
The term "Value" means, with respect to a Sale and Lease-back Transaction,
as of any particular time, the amount equal to the greater of (1) the net
proceeds from the sale or transfer of the property leased pursuant to that
Sale and Lease-back Transaction or (2) the fair value in the opinion of the
Board of Directors or the President or any Vice President of SUPERVALU of that
property at the time of entering into the Sale and Lease-back Transaction, in
either case multiplied by a fraction, the numerator of which shall be equal to
the number of full years of the term of the lease which is part of the Sale
and Lease-back Transaction remaining at
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the time of determination and the denominator of which shall be equal to the
number of full years of such term, without regard to any renewal or extension
options contained in the lease. (Section 101)
Consolidation, Merger and Sale of Assets
The indenture provides that we may, without the consent of any holders of
the notes, consolidate or merge with or into, or convey, transfer or lease our
property and assets substantially as an entirety to, any Person, and any other
Person may consolidate or merge with or into us, or convey, transfer or lease
its property and assets substantially as an entirety to us, so long as:
. the Person (if other than SUPERVALU) formed by the consolidation or into
which we are merged or which acquires or leases our assets substantially
as an entirety is organized and existing under the laws of any United
States jurisdiction and assumes our obligations under the notes, the
indenture and the related registration rights agreements;
. after giving effect to the transaction, no Event of Default with respect
to either the 7 7/8% Notes or the 7 5/8% Notes, and no event which,
after notice or lapse of time or both, would become an Event of Default
with respect to either the 7 7/8% Notes or the 7 5/8% Notes, shall have
happened and be continuing;
. if, as a result of that consolidation or merger or that conveyance,
transfer or lease, our properties or assets would become subject to a
mortgage, pledge, lien, security interest or other encumbrance which
would not be permitted by the indenture, we or the successor corporation
to us, as the case may be, effectively secure the notes equally and
ratably with (or prior to) all indebtedness secured thereby; and
. certain other conditions are met. (Article Eight)
Events of Default
"Event of Default" under the indenture means, with respect to either the 7
7/8% Notes or the 7 5/8% Notes, any of the following (Section 501):
. default in the payment of principal of or premium, if any, on any notes
of the respective series when due;
. default in the payment of any interest on any notes of the respective
series when due, continued for 30 days;
. default in the performance, or breach, of any of our other covenants in
the indenture (other than a covenant included in the indenture solely
for the benefit of a series of debt securities other than the notes of
the respective series), continued for 60 days after written notice to us
by the trustee or the registered holders of at least 10% in principal
amount of the outstanding notes of the respective series; and
. certain events in bankruptcy, insolvency or reorganization pertaining to
SUPERVALU.
If an Event of Default with respect to the 7 7/8% Notes or the 7 5/8% Notes
shall occur and continue, either the trustee or the holders of at least 25% in
principal amount of the outstanding notes of the respective series, by notice
to us, may declare the principal of all of the notes of that series to be due
and payable immediately and upon such declaration the principal amount will
become immediately due and payable. However, at any time after a declaration of
acceleration with respect to a series of notes has been made, but before a
judgment or decree based on such acceleration has been obtained, the holders of
a majority in principal amount of the outstanding notes of that series may,
under certain circumstances, rescind and annul such acceleration. (Section 502)
For information as to waiver of defaults, see "--Modification and Waiver."
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The indenture provides that, subject to the duty of the trustee during a
default to act with the required standard of care, the trustee will be under no
obligation to exercise any of its rights or powers under the indenture at the
request or direction of any of the holders, unless those holders offer to the
trustee reasonable indemnity. (Section 603) Subject to the provisions for
indemnification of the trustee, the holders of a majority in principal amount
of the outstanding notes of a series will have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
trustee, or exercising any trust or power conferred on the trustee, with
respect to the notes of that series. (Section 512)
No holder of any notes of a series will have any right to institute any
proceeding with respect to the indenture or for any remedy thereunder unless:
(1) the holder previously has given written notice to the trustee of a
continuing Event of Default with respect to the notes of that series; (2) the
holders of at least 25% in aggregate principal amount of the outstanding notes
of that series have made written request to the trustee to institute the
proceeding as trustee, and offered to the trustee reasonable indemnity against
costs, expenses and liabilities incurred in compliance with the request; (3) in
the 60-day period following receipt of the notice, request and offer of
indemnity referred to above, the trustee has failed to initiate the proceeding;
and (4) during the 60-day period, the trustee has not received from the holders
of a majority of the aggregate principal amount of the outstanding notes of
that series a direction inconsistent with such request.
Notwithstanding the provisions described in the immediately preceding
paragraph or any other provision of the indenture, the holder of any note will
have the right, which is absolute and unconditional, to receive payment of the
principal of, premium, if any, and interest on that note and to institute suit
for enforcement of any payment, and that right will not be impaired without the
consent of that holder.
We will be required to furnish to the trustee annually a statement as to the
performance by us of certain of our obligations under the indenture. (Section
704)
Modification and Waiver
We and the trustee may modify and amend the indenture with the consent of
the holders of a majority in principal amount of the outstanding debt
securities of each affected series. However, without the consent of each
affected holder, no modification or amendment may:
. change the stated maturity date of the principal of, or any installment
of principal of or interest on, any debt security;
. reduce the principal of, or premium (if any) or any interest on, any
debt security;
. change any obligation of SUPERVALU to maintain an office or agency in
the places and for the purposes specified in the indenture or the
currency of payment of principal or interest on any debt security;
. impair the right to institute suit to enforce any payment after the
stated maturity date or redemption date;
. reduce the percentage in principal amount of outstanding debt securities
of any series, the consent of whose holders is required for modification
or amendment of the indenture, for waiver of compliance with certain
provisions of the indenture or for waiver of certain defaults; or
. modify certain provisions of the indenture. (Section 902)
SUPERVALU and the trustee may, without the consent of any holders of debt
securities, modify the indenture to, among other things:
. evidence the succession of another Person as obligor under the indenture
and the debt securities;
. add to our covenants under the indenture or add additional Events of
Default;
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. change or eliminate any provision of the indenture, provided that the
change or elimination becomes effective only when there is no
outstanding debt security which is entitled to the benefit of that
provision;
. secure the debt securities pursuant to the requirement described above
under "--Certain Covenants--Restrictions on Liens;"
. establish the form or terms of a series of debt securities; or
. cure any ambiguity, correct or supplement any provision which may be
inconsistent, or make any other provision as to matters or questions
under the indenture, provided that action does not adversely affect the
interests of holders of debt securities of any series in any material
respect.
The holders of a majority in principal amount of the outstanding debt
securities of any series may, on behalf of the holders of all debt securities
of that series, waive, insofar as that series is concerned, our compliance with
specified restrictive covenants in the indenture, including those described
above under "--Certain Covenants." (Section 1012) The holders of a majority in
principal amount of the outstanding debt securities of any series may, on
behalf of the holders of all debt securities of that series, waive any past
default under the indenture with respect to that series. However, they may not
waive a default in the payment of the principal of (or premium, if any) or any
interest on any debt security of that series or in respect of a provision which
under the indenture cannot be modified or amended without the consent of the
holder of each outstanding debt security of that series affected. (Section 513)
Defeasance Provisions
Defeasance and Discharge. The indenture provides that, if principal of and
any interest on the debt securities of any series are denominated and payable
in United States dollars, we will be discharged from any and all obligations in
respect of the debt securities of that series (except for certain obligations
to register the transfer or exchange of debt securities, replace stolen, lost,
destroyed or mutilated debt securities, maintain offices or agencies and hold
moneys for payment in trust) upon the deposit with the trustee, in trust, of
money, government obligations or a combination thereof, which through the
payment of interest and principal thereof in accordance with their terms will
provide money in an amount sufficient to pay the principal of (and premium, if
any) and interest on, and any mandatory sinking fund payments in respect of,
the debt securities of that series on the stated maturity date of the payments
in accordance with the terms of the indenture and the debt securities.
This type of discharge may only occur if there has been a change in
applicable federal law or we have received from, or there has been published
by, the Internal Revenue Service a ruling to the effect that the holders of the
debt securities of that series will not recognize income, gain or loss for
federal income tax purposes as a result of that discharge and will be subject
to federal income tax on the same amount, in the same manner and at the same
times as would have been the case if the discharge had not occurred. In
addition, this type of discharge may only occur so long as no Event of Default
or event which, with notice or lapse of time, would become an Event of Default
with respect to the debt securities of that series occurs during the period
ending on the 91st day after the cash or government obligations are deposited
in trust and other conditions specified in the indenture are satisfied.
(Section 403)
The term "government obligations" means securities of the government which
issued the currency in which the debt securities of the series are denominated
or in which interest is payable or of government agencies backed by the full
faith and credit of that government. (Section 101)
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Defeasance of Certain Covenants. The indenture also provides that, if the
debt securities of any series are payable in United States dollars, we may omit
to comply with the covenants described above under "--Certain Covenants" with
respect to the debt securities of that series if we comply with the following
conditions. In order to exercise this option:
(1) we must deposit with the trustee money, government obligations or a
combination thereof, which through the payment of interest and principal
thereof in accordance with their terms will provide money in an amount
sufficient to pay the principal of (and premium, if any) and interest on,
and any mandatory sinking fund payments in respect of, the debt securities
of that series on the stated maturity date of the payments in accordance
with the terms of the indenture and the debt securities; and
(2) we must deliver to the Trustee an opinion of counsel to the effect
that the deposit and related covenant defeasance will not cause the holders
of the debt securities of that series to recognize income, gain or loss for
federal income tax purposes and that those holders will be subject to
federal income tax on the same amount, in the same manner and at the same
times as would have been the case if the deposit and covenant defeasance
had not occurred, and to satisfy other conditions specified in the
indenture. (Section 1011)
Covenant Defeasance and Events of Default. In the event we exercise our
option to effect covenant defeasance with respect to the debt securities of any
series and those debt securities are declared due and payable because of the
occurrence of any Event of Default, the amount of money and government
obligations on deposit with the trustee will be sufficient to pay amounts due
on the debt securities of that series at the time of their stated maturity
dates but may not be sufficient to pay amounts due on the debt securities at
the time of the acceleration resulting from such Event of Default. However, we
shall remain liable for such payments.
Regarding the Trustee
Bankers Trust Company is trustee under the indenture, pursuant to which some
of our debt securities are outstanding and pursuant to which the new notes are
to be issued. Bankers Trust Company is also trustee of our Master Investment
Trust which, together with its component separate trusts, serves as the
investment vehicle for several different defined benefit and defined
contribution tax-qualified retirement plans maintained by us and our
subsidiaries. Bankers Trust Company maintains normal banking relationships with
us (including participating in and acting as Administrative Agent under our
revolving line of credit), acts as agent for the issuance of our commercial
paper and provides cash management and other services for us in the normal
course of our business. In addition, Bankers Trust Company performs investment
management services for SUPERVALU.
Global Notes and Book-Entry System
The new notes initially will be issued in book-entry form and will be
represented by one or more permanent global notes for each series in fully
registered form without interest coupons. The global notes will be deposited
with the trustee as custodian for DTC and registered in the name of Cede & Co.
or another nominee designated by DTC. Beneficial interests in any global note
may not be exchanged for certificated notes except in the circumstances
described below.
DTC has advised us that it is:
. a limited purpose trust company organized under the New York Banking
Law;
. a "banking organization" within the meaning of the New York Banking Law;
. a member of the Federal Reserve System;
. a "clearing corporation" within the meaning of the Uniform Commercial
Code; and
. a "clearing agency" registered pursuant to the provisions of Section 17A
of the Securities Exchange Act.
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DTC holds securities for its participants and facilitates the clearance and
settlement of securities transactions between participants through electronic
book-entry changes in accounts of its participants, which eliminates the need
for physical movement of certificates. Participants include securities brokers
and dealers, banks, trust companies, clearing corporations and other
organizations. Indirect access to the DTC system is available to others such as
banks, brokers, dealers and trust companies that clear through or maintain a
direct or indirect custodial relationship with a participant ("indirect
participants"). The rules applicable to DTC and its participants are on file
with the SEC.
Upon the issuance of a global note, DTC or its custodian will credit on its
internal system the respective principal amount of the individual beneficial
interests represented by the global note to the accounts of the persons who
have accounts with DTC. Ownership of beneficial interests in a global note will
be limited to persons who have accounts with DTC ("participants") or persons
who hold interests through participants. Ownership of beneficial interests in
the global note will be shown on, and the transfer of that ownership will be
effected only through, records maintained by DTC or its nominee (with respect
to interests of participants) and the records of participants and indirect
participants (with respect to interests of persons other than participants).
So long as DTC or its nominee is the registered owner or holder of a global
note, DTC or its nominee, as the case may be, will be considered the sole
record owner or holder of the new notes represented by the global note for all
purposes under the indenture and the new notes. Except as set forth herein,
owners of beneficial interests in a global note will not be entitled to have
new notes represented by the global note registered in their names, will not
receive or be entitled to receive physical delivery of notes in definitive
certificated form, and will not be considered the holders of the global note
for any purposes under the indenture. Accordingly, each person owning a
beneficial interest in a global note must rely on the procedures of DTC and, if
that person is not a participant, on the procedures of the participant through
which that person directly or indirectly owns its interest, to exercise any
rights of a holder under the indenture. We understand that under existing
industry practices, if we request any action of holders or any owner of a
beneficial interest in a global note desires to give any notice or take any
action that a holder is entitled to give or take under the indenture, DTC would
authorize the participants holding the relevant beneficial interests to give
that notice or take that action, and the participants would authorize
beneficial owners owning through such participants to give that notice or take
that action or would otherwise act upon the instructions of beneficial owners
owning through them.
Payments of the principal of, premium, if any, and interest on global notes
will be made to DTC or its nominee, as the case may be, as the registered
owner. Neither we, the trustee nor any paying agent will have any
responsibility or liability for any aspect of the records relating to or
payments made on account of beneficial ownership interests in the global notes
or for maintaining, supervising or reviewing any records relating to these
beneficial ownership interests.
We expect that DTC or its nominee, upon receipt of any payment of principal
of, premium, if any, or interest in respect of a global note will credit
participants' accounts with payments in amounts proportionate to their
respective beneficial ownership interests in the principal amount of the global
note, as shown on the records of DTC or its nominee. We also expect that
payments by participants to owners of beneficial interests in a global note
held through those participants will be governed by standing instructions and
customary practices, as is now the case with securities held for the accounts
of customers registered in the names of nominees for such customers. The
participants will be responsible for these payments.
For each series of notes, we will issue certificated notes in exchange for
global notes if:
(1) DTC notifies us that it is unwilling or unable to continue as
depositary for the global notes or if at any time DTC ceases to be a
clearing agency registered under the Securities Exchange Act and we do not
appoint a successor depositary within ninety days;
(2) there shall have occurred and be continuing an Event of Default or
an event which, with the giving of notice or lapse of time, or both, would
constitute an Event of Default with respect to the notes of that series; or
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(3) we in our sole discretion determine not to have the notes of that
series represented by a global note.
If a global note becomes exchangeable for certificated notes, an owner of a
beneficial interest in a global note will be entitled to physical delivery of
certificated notes equal in principal amount to its beneficial interest and to
have the certificated notes registered in its name. We expect that instructions
for registering the certificated notes would be based upon directions received
from DTC with respect to ownership of the beneficial interests in the global
note.
The principal of, premium, if any, and interest on certificated notes will
be payable at the office or agency maintained by SUPERVALU for that purpose in
the Borough of Manhattan, The City of New York; provided that payments of
interest may be made at the option of SUPERVALU by check mailed to the address
of the persons entitled thereto or by transfer to an account maintained by the
payee with a bank located in the United States. The office or agency initially
maintained by SUPERVALU for the foregoing purposes shall be the office of the
trustee.
Although DTC has agreed to the procedures described above in order to
facilitate transfers of interests in the global notes among participants of
DTC, it is under no obligation to perform those procedures and those procedures
may be discontinued at any time. Neither we nor the trustee will have any
responsibility for the performance by DTC or its participants or indirect
participants of their respective obligations under the rules and procedures
governing their operations.
We have been informed by DTC that its management is aware that some computer
applications, systems, and the like for processing data that are dependent upon
calendar dates, including dates before, on, and after January 1, 2000, may
encounter "Year 2000 problems." We have also been informed by DTC that it has
informed its participants and other members of the financial community that it
has developed and is implementing a program so that its systems, as the same
relate to the timely payment of distributions (including principal and interest
payments) to securityholders, book-entry deliveries, and settlement of trades
within DTC continue to function appropriately. According to DTC, this program
includes a technical assessment and a remediation plan, each of which is
complete. Additionally, DTC has informed us that its plan includes a testing
phase, which is expected to be completed within appropriate time frames.
However, we have been informed by DTC that its ability to perform its
services is also dependent upon other parties, including but not limited to
issuers and their agents, as well as third party vendors from whom DTC licenses
software and hardware, and third party vendors on whom DTC relies for
information or the provision of services, including telecommunications and
electrical utility service providers, among others. DTC has informed us that it
is contacting (and will continue to contact) third party vendors from whom DTC
acquires services to: (1) impress upon them the importance of such services
being Year 2000 compliant, and (2) determine the extent of their efforts for
Year 2000 remediation (and, as appropriate, testing) of their services. In
addition, DTC has informed us that it is in the process of developing such
contingency plans as it deems appropriate.
According to DTC, the foregoing information with respect to DTC has been
provided by it for informational purposes only and is not intended to serve as
a representation, warranty, or contract modification of any kind.
Same-Day Funds
We will make all payments of principal of, premium, if any, and interest on
the global notes in immediately available funds to DTC.
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UNITED STATES FEDERAL INCOME TAX CONSIDERATIONS
The following is a summary of the principal general federal income tax
consequences to a holder of new notes who is (i) a citizen or resident of the
United States, (ii) a corporation, partnership or other entity treated as a
corporation or a partnership for United States federal income tax purposes
created or organized in or under the laws of the United States, any state
thereof or the District of Columbia (unless, in the case of a partnership,
Treasury regulations provide otherwise), (iii) an estate whose income is
subject to United States federal income tax regardless of its source, or (iv) a
trust if a court within the United States is able to exercise primary
supervision over the administration of the trust and one or more United States
persons have the authority to control all substantial decisions of the trust.
Notwithstanding the preceding sentence, to the extent provided in Treasury
regulations, certain trusts in existence on August 20, 1996, and treated as
United States persons prior to such date, that elect to continue to be treated
as United States persons, will also be United States holders.
The following summary deals only with new notes held as capital assets by
purchasers of the original notes at the issue price who are United States
holders and not with special classes of holders, such as dealers in securities
or currencies, financial institutions, life insurance companies, persons
holding new notes as a hedge against or which are hedged against currency
risks, and persons whose functional currency is not the U.S. dollar. A person
considering the exchange of original notes for new notes should consult his or
her own tax advisor concerning these matters and as to the tax treatment under
foreign, state and local tax laws and regulations.
This summary is based upon the Internal Revenue Code of 1986, as amended
(the "Code"), Treasury Regulations, Internal Revenue Service ("IRS") rulings
and pronouncements and judicial decisions now in effect, all of which are
subject to change at any time. Changes in this area of law may be applied
retroactively in a manner that could cause the tax consequences to vary
substantially from the consequences described below, possibly adversely
affecting a United States holder. The authorities on which this summary is
based are subject to various interpretations, and it is therefore possible that
the federal income tax treatment of the exchange, ownership and disposition of
the notes may differ from the treatment described below.
Exchange of Notes
There will be no federal income tax consequences to United States holders
exchanging original notes for new notes under the exchange offer because the
exchange offer will occur by operation of the terms of the original notes and
will not result in any material alteration in the terms of the original notes.
Each exchanging holder will have the same adjusted tax basis and holding period
in the new notes as it had in the original notes immediately before the
exchange.
General
As a general rule, interest paid or accrued on the new notes will be treated
as ordinary income to United States holders. A United States holder using the
accrual method of accounting for federal income tax purposes is required to
include interest paid or accrued on the new notes in ordinary income as
interest accrues, while a United States holder using the cash receipts and
disbursements method of accounting for federal income tax purposes must include
interest in ordinary income when payments are received (or made available for
receipt) by the holder.
Sale, Exchange or Retirement of Notes
A United States holder's tax basis in a note will generally be its cost.
Upon the sale, exchange or retirement of a new note, a United States holder
will generally recognize gain or loss on the sale or retirement of a new note
equal to the difference between the amount realized (not including any amounts
attributable to accrued and unpaid interest) and the holder's tax basis in the
note. Long-term capital gain of a non-corporate United States holder is
generally subject to a maximum tax rate of 20% in respect of property held for
more than one year.
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Withholding and Information Reporting
Interest payments and payments of principal and any premium with respect to
a new note will be reported to the extent required by the Code to the United
States holders and the IRS. These amounts will ordinarily not be subject to
withholding of United States federal income tax. However, a backup withholding
tax at a rate of 31% will apply to these payments if the United States holder
fails to supply us or our agent with the holder's taxpayer identification
number or to report all interest or dividends required to be shown on its
federal income tax returns.
PLAN OF DISTRIBUTION
Each broker-dealer that receives new notes for its own account under the
exchange offer must acknowledge that it will deliver a prospectus in connection
with any resale of those notes. This prospectus, as it may be amended or
supplemented from time to time, may be used by a broker-dealer for resales of
new notes received in exchange for original notes that had been acquired as a
result of market-making or other trading activities. We have agreed that, for a
period of 180 days after the expiration date of the exchange offer, we will
make this prospectus, as it may be amended or supplemented, available to any
broker-dealer for use in connection with any such resale. Any broker-dealers
required to use this prospectus and any amendments or supplements to this
prospectus for resales of the new notes must notify us of this fact by checking
the box on the letter of transmittal requesting additional copies of these
documents or by writing or telephoning us. See "WHERE YOU CAN FIND MORE
INFORMATION."
Notwithstanding the foregoing, we are entitled under the registration rights
agreements to suspend the use of this prospectus by broker-dealers under
specified circumstances. For example, we may suspend the use of this prospectus
if:
. the SEC or any state securities authority requests an amendment or
supplement to this prospectus or the related registration statement or
additional information;
. the SEC or any state securities authority issues any stop order
suspending the effectiveness of the registration statement or initiates
proceedings for that purpose;
. we receive notification of the suspension of the qualification of the
new notes for sale in any jurisdiction or the initiation or threatening
of any proceeding for that purpose;
. the suspension is required by law;
. the suspension is taken for valid business reasons, including the
acquisition or divestiture of assets or a material corporate
transaction; or
. an event occurs which makes any statement in this prospectus untrue in
any material respect or which constitutes an omission to state a
material fact in this prospectus.
If we suspend the use of this prospectus, the 180-day period referred to
above will be extended by a number of days equal to the period of the
suspension.
We will not receive any proceeds from any sale of new notes by broker-
dealers. New notes received by broker-dealers for their own account under the
exchange offer may be sold from time to time in one or more transactions in the
over-the-counter market, in negotiated transactions, through the writing of
options on those notes or a combination of those methods, at market prices
prevailing at the time of resale, at prices related to prevailing market prices
or at negotiated prices. Any resales may be made directly to purchasers or to
or through brokers or dealers who may receive compensation in the form of
commissions or concessions from the selling broker-dealer or the purchasers of
the new notes. Any broker-dealer that resells new notes received by it for its
own account under the exchange offer and any broker or dealer that participates
in a distribution of the
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new notes may be deemed to be an "underwriter" within the meaning of the
Securities Act and any profit on any resale of new notes and any commissions or
concessions received by these persons may be deemed to be underwriting
compensation under the Securities Act. The letter of transmittal states that,
by acknowledging that it will deliver and by delivering a prospectus, a broker-
dealer will not be deemed to admit that it is an "underwriter" within the
meaning of the Securities Act.
We have agreed to pay all expenses incidental to the exchange offer other
than commissions and concessions of any broker or dealer and will indemnify
holders of the notes, including any broker-dealers, against certain
liabilities, including liabilities under the Securities Act.
LEGAL MATTERS
The validity of the new notes offered in this exchange offer will be passed
upon for us by Dorsey & Whitney LLP, Minneapolis, Minnesota.
EXPERTS
The consolidated financial statements incorporated in this prospectus by
reference from our Annual Report on Form 10-K for the fiscal year ended
February 27, 1999 have been audited by KPMG LLP, independent auditors, as set
forth in their report which is incorporated herein by reference, and have been
so incorporated by reference in reliance upon the report of that firm given
upon their authority as experts in accounting and auditing.
The consolidated financial statements as of February 28, 1998 and for each
of the two fiscal years (53 and 52 weeks) in the period ended February 28, 1998
incorporated in this prospectus by reference from our Annual Report on Form 10-
K for the fiscal year ended February 27, 1999 have been audited by Deloitte &
Touche LLP, independent auditors, as set forth in their report which is
incorporated herein by reference, and have been so incorporated by reference in
reliance upon the report of that firm given upon their authority as experts in
accounting and auditing.
The consolidated financial statements of Richfood Holdings, Inc. as of May
1, 1999 and for the fiscal year ended May 1, 1999 incorporated in this
prospectus by reference from our Form 8-K filed September 10, 1999 have been
audited by Ernst & Young LLP, independent auditors, as set forth in their
report which is incorporated herein by reference, and have been so incorporated
by reference in reliance upon the report of said firm given upon their
authority as experts in accounting and auditing.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and current reports, proxy statements and other
documents with the SEC. Our SEC filings are available to the public over the
internet at the SEC's Web site at "http://www.sec.gov." You may also read and
copy any document we file with the SEC at the SEC's public reference room at
450 Fifth Street, N.W., Washington, D.C. 20549, as well as any regional offices
of the SEC located at 7 World Trade Center, 13th Floor, New York, New York
10048 and Citicorp Center, 500 West Madison Street, Suite 1400, Chicago,
Illinois 60661. Please call the SEC at 1-800-SEC-0330 for further information
about its public reference facilities and their copy charges.
Our common stock is listed on the New York Stock Exchange. You may also
inspect the information we file with the SEC at the New York Stock Exchange, 20
Broad Street, New York, New York 10005.
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We have filed with the SEC a registration statement on Form S-4 to register
the new notes to be issued in connection with this exchange offer. This
prospectus, which forms a part of the registration statement, does not contain
all of the information included or incorporated in the registration statement.
The full registration statement can be obtained from the SEC as indicated
above.
The SEC allows us to incorporate by reference the information we file with
them. This allows us to disclose important information to you by referencing
those filed documents. We have previously filed the following documents with
the SEC and are incorporating them by reference into this prospectus:
. our annual report on Form 10-K for the fiscal year ended February 27,
1999;
. our quarterly reports on Form 10-Q for the fiscal quarters ended June 19
and September 11, 1999; and
. our current reports on Form 8-K filed on July 21, 1999 and September 10,
1999.
We also are incorporating by reference any future filings made by us with
the SEC under Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act
until the completion of the exchange offer. The most recent information that we
file with the SEC automatically updates and supersedes more dated information.
You can obtain a copy of any documents which are incorporated by reference
in this prospectus, except for exhibits which are specifically incorporated by
reference into those documents, at no cost, by writing or telephoning us at:
Investor Relations
SUPERVALU INC.
11840 Valley View Road
Eden Prairie, Minnesota 55344
(612) 828-4000
Telecopy: (612) 828-4838
To ensure timely delivery of the documents, you should make your request by
, 1999. If you request any incorporated documents from us, we will mail them
to you by first class mail, or another equally prompt means, within one
business day after we receive your request.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 20. Indemnification of Officers and Directors
Section 145 of the Delaware General Corporation Law contains detailed
provisions for indemnification of directors and officers of Delaware
corporations against expenses, judgments, fines and settlements in connection
with litigation.
In accordance with the DGCL, Article Eighth of SUPERVALU's certificate of
incorporation provides that a director shall not be liable to SUPERVALU:
. for any breach of the director's duty of loyalty to SUPERVALU or its
stockholders;
. for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law;
. under section 174 of the DGCL providing for liability of directors for
unlawful payment of dividends or unlawful stock purchases or
redemptions;
. for any transaction from which a director derived an improper benefit;
or
. for any act or omission occurring prior to the date when said Article
Eighth became effective.
Article IX of SUPERVALU's bylaws and SUPERVALU's Directors' and Officers'
Liability Insurance Policy provide for indemnification of the directors and
officers of SUPERVALU against certain liabilities.
Item 21. Exhibits
<TABLE>
<C> <S>
3.1 Restated Certificate of Incorporation of SUPERVALU. (Incorporated by
reference to Exhibit (3)(i) to SUPERVALU's Annual Report on Form 10-K for
the fiscal year ended February 26, 1994.)
3.2 Restated bylaws of SUPERVALU. (Incorporated by reference to Exhibit (3) to
SUPERVALU's Quarterly Report on Form 10-Q for the period ended September
12, 1998.)
4.1 Indenture dated as of July 1, 1987 between SUPERVALU and Bankers Trust
Company, as Trustee, relating to certain outstanding debt securities.
(Incorporated by reference to Exhibit 4.1 to SUPERVALU's Registration
Statement on Form S-3, Registration No. 33-52422.)
4.2 First Supplemental Indenture dated as of August 1, 1990 between SUPERVALU
and Bankers Trust Company, as Trustee, to Indenture dated as of July 1,
1987 between SUPERVALU and Bankers Trust Company, as Trustee.
(Incorporated by reference to Exhibit 4.2 to SUPERVALU's Registration
Statement on Form S-3, Registration No. 33-52422.)
4.3 Second Supplemental Indenture dated as of October 1, 1992 between
SUPERVALU and Bankers Trust Company, as Trustee, to Indenture dated as of
July 1, 1987 between SUPERVALU and Bankers Trust Company, as Trustee.
(Incorporated by reference to Exhibit 4.1 to SUPERVALU's Report on Form 8-
K dated November 13, 1992.)
4.4 Letter of Representations dated November 12, 1992 between SUPERVALU,
Bankers Trust Company, as Trustee, and The Depository Trust Company
relating to certain outstanding debt securities of SUPERVALU.
(Incorporated by reference to Exhibit 4.5 to SUPERVALU's Report on Form 8-
K dated November 13, 1992.)
</TABLE>
II-1
<PAGE>
<TABLE>
<C> <S>
4.5 Third Supplemental Indenture dated as of September 1, 1995 between
SUPERVALU and Bankers Trust Company, as Trustee, to Indenture dated as
of July 1, 1987 between SUPERVALU and Bankers Trust Company, as Trustee.
(Incorporated by reference to Exhibit 4.1 to SUPERVALU's Report on Form
8-K dated October 2, 1995.)
4.6 Credit Agreement dated as of October 8, 1997 among SUPERVALU, the
Lenders named therein and Bankers Trust Company, as Agent. (Incorporated
by reference to Exhibit (10) a to SUPERVALU's Quarterly Report on Form
10-Q for the period ended November 29, 1997.)
4.7 Letter Amendment, dated as of August 20, 1999, to the Credit Agreement
dated as of October 8, 1997 among SUPERVALU, the Lenders named therein
and Bankers Trust Company, as Agent. (Incorporated by reference to
Exhibit 4.1 to SUPERVALU's Quarterly Report on Form 10-Q for the period
ended September 11, 1999.)
4.8 Fourth Supplemental Indenture dated as of August 4, 1999 between
SUPERVALU and Bankers Trust Company, as Trustee, to Indenture dated as
of July 1, 1987 between SUPERVALU and Bankers Trust Company, as Trustee,
including form of 7 7/8% Notes due 2009. (Incorporated by reference to
Exhibit 4.2 to SUPERVALU's Quarterly Report on Form 10-Q for the period
ended September 11, 1999.)
4.9 Fifth Supplemental Indenture dated as of September 17, 1999 between
SUPERVALU and Bankers Trust Company, as Trustee, to Indenture dated as
of July 1, 1987 between SUPERVALU and Bankers Trust Company, as Trustee,
including form of 7 5/8% Notes due 2004. (Incorporated by reference to
Exhibit4.3 to SUPERVALU's Quarterly Report on Form 10-Q for the period
ended September 11, 1999.)
4.10 Registration Rights Agreement dated as of August 4, 1999 among SUPERVALU
and Merrill Lynch, Pierce, Fenner & Smith Incorporated, Goldman, Sachs &
Co., Salomon Smith Barney Inc., U.S. Bancorp Piper Jaffray Inc., Chase
Securities Inc., First Union Capital Markets Corp., and McDonald
Investments Inc. (Incorporated by reference to Exhibit 4.4 to
SUPERVALU's Quarterly Report on Form 10-Q for the period ended September
11, 1999.)
4.11 Registration Rights Agreement dated as of September 17, 1999 among
SUPERVALU and Merrill Lynch, Pierce, Fenner & Smith Incorporated,
Goldman, Sachs & Co., Salomon Smith Barney Inc., U.S. Bancorp Piper
Jaffray Inc., Banc One Capital Markets, Inc., Deutsche Bank Securities
Inc. and Wachovia Securities, Inc. (Incorporated by reference to Exhibit
4.5 to SUPERVALU's Quarterly Report on Form 10-Q for the period ended
September 11, 1999.)
Pursuant to Item 601(b)(4)(iii) of Regulation S-K, copies of certain
instruments defining the rights of holders of certain long-term debt of
SUPERVALU and its subsidiaries are not filed and, in lieu thereof,
SUPERVALU agrees to furnish copies thereof to the SEC upon request.
5.1* Opinion of Dorsey & Whitney LLP.
12.1* Computation of Ratio of Earnings to Fixed Charges.
23.1* Consent of Dorsey & Whitney LLP (included in Exhibit 5.1 hereto).
23.2* Consent of KPMG LLP relating to the financial statements of SUPERVALU.
23.3* Consent of Deloitte & Touche LLP relating to the financial statements of
SUPERVALU.
23.4* Consent of Ernst & Young LLP relating to the financial statements of
Richfood.
24.1* Power of Attorney.
25.1* Statement of Eligibility of Trustee on Form T-1 of Bankers Trust
Company.
99.1* Form of Letter of Transmittal.
99.2* Form of Notice of Guaranteed Delivery.
</TABLE>
II-2
<PAGE>
<TABLE>
<C> <S>
99.3* Form of Letter to Clients.
99.4* Form of Letter to Registered Holder and/or DTC Participant.
99.5* Form of Letter to Nominees.
99.6* Form of Exchange Agent Agreement.
</TABLE>
- --------
* Filed herewith.
Item 22. Undertakings
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the Registration Statement.
Notwithstanding the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of securities offered
would not exceed that which was registered) and any deviation from the
low or high end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the Securities and
Exchange Commission pursuant to Rule 424(b) under the Securities Act
if, in the aggregate, the changes in volume and price represent no more
than a 20% change in the maximum aggregate offering price set forth in
the "Calculation of Registration Fee" table in the effective
Registration Statement.
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the Registration Statement
or any material change to such information in the Registration
Statement; provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii)
above do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic
reports filed pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the
Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in the
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event
II-3
<PAGE>
that a claim for indemnification against such liabilities (other than the
payment by the Registrant of expenses incurred or paid by a director, officer
or controlling person of the Registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by it is against public policy as
expressed in the Act and will be governed by the final adjudication of such
issue.
The undersigned Registrant hereby undertakes to respond to requests for
information that is incorporated by reference into the prospectus pursuant to
Items 4, 10(b), 11 or 13 of this form, within one business day of receipt of
such request, and to send the incorporated documents by first class mail or
other equally prompt means. This includes information contained in documents
filed subsequent to the effective date of this registration statement through
the date of responding to the request.
The undersigned Registrant hereby undertakes to supply by means of a post-
effective amendment all information concerning a transaction, and the company
being acquired involved therein that was not subject of and included in the
registration statement when it became effective.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant has duly
caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Minneapolis, State of
Minnesota, on November 2, 1999.
SUPERVALU INC.
/s/ Michael W. Wright
By: _________________________________
Michael W. Wright
Chairman of the Board, President,
Chief Executive Officer and
Director
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the indicated capacities
on November 2, 1999.
<TABLE>
<CAPTION>
Signature Title
--------- -----
<S> <C>
/s/ Michael W. Wright Chairman of the Board, President,
By: _______________________________ Chief Executive Officer and Director
Michael W. Wright (Principal Executive Officer)
/s/ Pamela K. Knous Executive Vice President and Chief Financial
By: _______________________________ Officer
Pamela K. Knous (Principal Financial and Accounting Officer)
*
By: _______________________________
Susan E. Engel Director
*
By: _______________________________
Richard L. Knowlton Director
*
By: _______________________________
Charles M. Lillis Director
*
By: _______________________________
Edwin C. Gage Director
*
By: _______________________________
William A. Hodder Director
*
By: _______________________________
Garnett L. Keith, Jr. Director
*
By: _______________________________
Lawrence A. Del Santo Director
</TABLE>
II-5
<PAGE>
<TABLE>
<CAPTION>
Signature Title
--------- -----
<S> <C>
*
By: _______________________________
Harriet Perlmutter Director
*
By: _______________________________
Steven S. Rogers Director
*
By: _______________________________
Carol F. St. Mark Director
/s/ John P. Breedlove
*By: ______________________________
John P. Breedlove
Attorney-in-fact
</TABLE>
II-6
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
Number Description of Exhibit
------- ----------------------
<C> <S>
3.1 Restated Certificate of Incorporation of SUPERVALU. (Incorporated by
reference to Exhibit (3)(i) to SUPERVALU's Annual Report on Form 10-K
for the fiscal year ended February 26, 1994.)
3.2 Restated bylaws of SUPERVALU. (Incorporated by reference to Exhibit
(3) to SUPERVALU's Quarterly Report on Form 10-Q for the period ended
September 12, 1998.)
4.1 Indenture dated as of July 1, 1987 between SUPERVALU and Bankers Trust
Company, as Trustee, relating to certain outstanding debt securities.
(Incorporated by reference to Exhibit 4.1 to SUPERVALU's Registration
Statement on Form S-3, Registration No. 33-52422.)
4.2 First Supplemental Indenture dated as of August 1, 1990 between
SUPERVALU and Bankers Trust Company, as Trustee, to Indenture dated as
of July 1, 1987 between SUPERVALU and Bankers Trust Company, as
Trustee. (Incorporated by reference to Exhibit 4.2 to SUPERVALU's
Registration Statement on Form S-3, Registration No. 33-52422.)
4.3 Second Supplemental Indenture dated as of October 1, 1992 between
SUPERVALU and Bankers Trust Company, as Trustee, to Indenture dated as
of July 1, 1987 between SUPERVALU and Bankers Trust Company, as
Trustee. (Incorporated by reference to Exhibit 4.1 to SUPERVALU's
Report on Form 8-K dated November 13, 1992.)
4.4 Letter of Representations dated November 12, 1992 between SUPERVALU,
Bankers Trust Company, as Trustee, and The Depository Trust Company
relating to certain outstanding debt securities of SUPERVALU.
(Incorporated by reference to Exhibit 4.5 to SUPERVALU's Report on
Form 8-K dated November 13, 1992.)
4.5 Third Supplemental Indenture dated as of September 1, 1995 between
SUPERVALU and Bankers Trust Company, as Trustee, to Indenture dated as
of July 1, 1987 between SUPERVALU and Bankers Trust Company, as
Trustee. (Incorporated by reference to Exhibit 4.1 to SUPERVALU's
Report on Form 8-K dated October 2, 1995.)
4.6 Credit Agreement dated as of October 8, 1997 among SUPERVALU, the
Lenders named therein and Bankers Trust Company, as Agent.
(Incorporated by reference to Exhibit (10) a to SUPERVALU's Quarterly
Report on Form 10-Q for the period ended November 29, 1997.)
4.7 Letter Amendment, dated as of August 20, 1999, to the Credit Agreement
dated as of October 8, 1997 among SUPERVALU, the Lenders named therein
and Bankers Trust Company, as Agent. (Incorporated by reference to
Exhibit 4.1 to SUPERVALU's Quarterly Report on Form 10-Q for the
period ended September 11, 1999.)
4.8 Fourth Supplemental Indenture dated as of August 4, 1999 between
SUPERVALU and Bankers Trust Company, as Trustee, to Indenture dated as
of July 1, 1987 between SUPERVALU and Bankers Trust Company, as
Trustee, including form of 7 7/8 Notes due 2009. (Incorporated by
reference to Exhibit 4.2 to SUPERVALU's Quarterly Report on Form 10-Q
for the period ended September 11, 1999.)
4.9 Fifth Supplemental Indenture dated as of September 17, 1999 between
SUPERVALU and Bankers Trust Company, as Trustee, to Indenture dated as
of July 1, 1987 between SUPERVALU and Bankers Trust Company, as
Trustee, including form of 7 5/8 Notes due 2004. (Incorporated by
reference to Exhibit 4.3 to SUPERVALU's Quarterly Report on Form 10-Q
for the period ended September 11, 1999.)
4.10 Registration Rights Agreement dated as of August 4, 1999 among
SUPERVALU and Merrill Lynch, Pierce, Fenner & Smith Incorporated,
Goldman, Sachs & Co., Salomon Smith Barney Inc., U.S. Bancorp Piper
Jaffray Inc., Chase Securities Inc., First Union Capital Markets
Corp., and McDonald Investments Inc. (Incorporated by reference to
Exhibit 4.4 to SUPERVALU's Quarterly Report on Form 10-Q for the
period ended September 11, 1999.)
</TABLE>
<PAGE>
<TABLE>
<S> <C>
4.11 Registration Rights Agreement dated as of September 17, 1999 among SUPERVALU and Merrill Lynch,
Pierce, Fenner & Smith Incorporated, Goldman, Sachs & Co., Salomon Smith Barney Inc., U.S. Bancorp
Piper Jaffray Inc., Banc One Capital Markets, Inc., Deutsche Bank Securities Inc. and Wachovia
Securities, Inc. (Incorporated by reference to Exhibit 4.5 to SUPERVALU's Quarterly Report on Form
10-Q for the period ended September 11, 1999.)
5.1* Opinion of Dorsey & Whitney LLP.
12.1* Computation of Ratio of Earnings to Fixed Charges.
23.1* Consent of Dorsey & Whitney LLP (included in Exhibit 5.1 hereto).
23.2* Consent of KPMG LLP relating to the financial statements of SUPERVALU.
23.3* Consent of Deloitte & Touche LLP relating to the financial statements of SUPERVALU.
23.4* Consent of Ernst & Young LLP relating to the financial statements of Richfood.
24.1* Power of Attorney.
25.1* Statement of Eligibility of Trustee on Form T-1 of Bankers Trust Company.
99.1* Form of Letter of Transmittal.
99.2* Form of Notice of Guaranteed Delivery.
99.3* Form of Letter to Clients.
99.4* Form of Letter to Registered Holder and/or DTC Participant.
99.5* Form of Letter to Nominees.
99.6* Form of Exchange Agent Agreement.
</TABLE>
- --------
* Filed herewith.
<PAGE>
Exhibit 5.1
[LETTERHEAD OF DORSEY & WHITNEY LLP]
SUPERVALU INC.
11840 Valley View Road
Eden Prairie, MN 55344
Re: Registration Statement on Form S-4
Ladies and Gentlemen:
We have acted as counsel to SUPERVALU INC., a Delaware corporation (the
"Company"), in connection with a Registration Statement on Form S-4 (the
"Registration Statement") relating to the issuance by the Company of (1)
$350,000,000 aggregate principal amount of the Company's 7 7/8% Notes due 2009
(the "New 7 7/8% Notes") registered under the Securities Act of 1933, as amended
(the "Securities Act"), in exchange for a like principal amount of the Company's
outstanding unregistered 7 7/8% Notes due 2009 (the "Original 7 7/8% Notes") and
(2) $250,000,000 aggregate principal amount of the Company's 7 5/8% Notes due
2004 (the "New 7 5/8% Notes") registered under the Securities Act in exchange
for a like principal amount of the Company's outstanding unregistered 7 5/8%
Notes due 2004 (the "Original 7 5/8% Notes"). The New 7 7/8% Notes and the New
7 5/8% Notes are issuable under an Indenture dated as of July 1, 1987, as
supplemented (the "Indenture"), by and between the Company and Bankers Trust
Company, as trustee (the "Trustee").
We have examined such documents, including resolutions adopted by the
Board of Directors of the Company on June 30, 1999 and August 11, 1999
(collectively, the "Resolutions"), and have reviewed such questions of law as we
have considered necessary and appropriate for the purposes of our opinions set
forth below. In rendering our opinions, we have assumed the authenticity of all
documents submitted to us as originals, the genuineness of all signatures and
the conformity to authentic originals of all documents submitted to us as
copies. We have also assumed the legal capacity for all purposes relevant hereto
of all natural persons and, with respect to all parties to agreements or
instruments relevant hereto other than the Company, that such parties had the
requisite power and authority (corporate or otherwise) to execute, deliver and
perform such agreements or instruments, that such agreements or instruments have
been duly authorized by all requisite action (corporate or otherwise), executed
and delivered by such parties and that such agreements or instruments are the
valid, binding and enforceable obligations of such parties. As to questions of
fact material to our opinions, we have relied upon certificates of officers of
the Company and of public officials.
Based on the foregoing, we are of the opinion that:
(1) the New 7 7/8% Notes have been duly authorized by the Company and,
when executed by the Company and authenticated by the Trustee as specified in
the Indenture and delivered against surrender and cancellation of a like
principal amount of Original 7 7/8% Notes in the manner described in the
Registration Statement, will constitute valid and binding obligations of the
Company, enforceable in accordance with their terms.
(2) the New 7 5/8% Notes have been duly authorized by the Company and,
when executed by the Company and authenticated by the Trustee as specified in
the Indenture and delivered against surrender and cancellation of a like
principal amount of Original 7 5/8% Notes in the manner described in the
Registration Statement, will constitute valid and binding obligations of the
Company, enforceable in accordance with their terms.
<PAGE>
SUPERVALU INC.
Page 2
The opinions set forth above are subject to the following
qualifications and exceptions:
(a) Our opinions stated above are subject to the effect of any
applicable bankruptcy, insolvency (including, without limitation, all
laws relating to fraudulent transfers), reorganization, moratorium or
other similar laws of general application affecting creditors' rights.
(b) Our opinions stated above are subject to the effect of
general principles of equity, including (without limitation) concepts
of materiality, reasonableness, good faith and fair dealing, and other
similar doctrines affecting the enforceability of agreements generally
(regardless of whether considered in a proceeding in equity or at law).
(c) In rendering the opinions set forth above, we have assumed
that, at the time of the authentication and delivery of the New 7 7/8%
Notes and the New 7 5/8% Notes, the Resolutions referred to above will
not have been modified or rescinded, there will not have occurred any
change in the law affecting the authorization, execution, delivery,
validity or enforceability of the New 7 7/8% Notes and the New 7 5/8%
Notes, the Registration Statement will have been declared effective by
the Securities and Exchange Commission and will continue to be
effective, none of the particular terms of the New 7 7/8% Notes and the
New 7 5/8% Notes will violate any applicable law and neither the
issuance and sale thereof nor the compliance by the Company with the
terms thereof will result in a violation of any agreement or instrument
then binding upon the Company or any order of any court or governmental
body having jurisdiction over the Company.
Our opinions expressed above are limited to the Delaware General
Corporation Law, the laws of the State of New York and the federal laws of the
United States of America.
We hereby consent to your filing of this opinion as an exhibit to the
Registration Statement, and to the reference to our firm under the caption
"Legal Matters" contained in the Prospectus that is part of the Registration
Statement.
Dated: November 2, 1999
Very truly yours,
/s/ Dorsey & Whitney LLP
GLT
KLP
<PAGE>
Exhibit 12.1
SUPERVALU INC. and Subsidiaries
Ratio of Earnings to Fixed Charges
For Fiscal Quarters and Years Ended
<TABLE>
<CAPTION>
(in thousands, except ratios) 2nd Qtr 2000 2nd Qtr 2000* 2nd Qtr 1999 1999 1998 1998* 1997
------------ ------------- ------------ --------- --------- ---------- ---------
<S> <C> <C> <C> <C> <C> <C>
Earnings before income taxes $227,397 $167,331 $153,009 $316,261 $384,780 $294,746 $280,512
Less undistributed earnings of less than
fifty percent owned affiliates (3,323) (3,323) (3,245) (5,943) (7,388) (7,388) (15,813)
------------ ------------- ------------ --------- --------- ---------- ---------
Earnings before income taxes 224,074 164,008 149,764 310,318 377,392 287,358 264,699
Interest expense 63,009 63,009 65,596 124,111 133,619 133,619 136,831
Interest on operating leases 8,448 8,448 8,815 18,574 18,010 18,010 16,950
------------ ------------- ------------ --------- --------- ---------- ---------
$295,531 $235,465 224,175 $453,003 $529,021 $438,987 $418,480
============ ============= ============ ========= ========= ========== =========
Total fixed charges 71,457 71,457 74,411 142,685 151,629 151,629 153,781
============ ============= ============ ========= ========= ========== =========
Ratio of earnings to fixed charges 4.14 3.30 3.01 3.17 3.49 2.90 2.72
============ ============= ============ ========= ========= ========== =========
(in thousands, except ratios) 1996 1995 1995*
------------ ------------- ---------
<S> <C> <C> <C>
Earnings before income taxes $267,692 $15,925 $260,025
Less undistributed earnings of less than
fifty percent owned affiliates (11,136) (10,902) (10,902)
------------ ------------- ---------
Earnings before income taxes 256,556 5,023 249,123
Interest expense 140,150 135,383 135,383
Interest on operating leases 17,059 18,204 18,204
------------ ------------- ---------
$413,765 $158,610 $402,710
============ ============= =========
Total fixed charges 157,209 153,587 153,587
============ ============= =========
Ratio of earnings to fixed charges 2.63 1.03 2.62
============ ============= =========
</TABLE>
*excludes one-time items:
FY 2000 excludes gain on sale of Hazelwood of $163,700 and restructuring
charges of $103,600
FY 1998 excludes gain on sale of Shopko of $90,034
FY 1995 excludes restructuring and other charges of $244,100
<PAGE>
Exhibit 23.2
Independent Auditors' Consent
The Board of Directors
SUPERVALU INC.:
We consent to the use of our report incorporated herein by reference and to the
reference to our firm under the heading "Experts" in the prospectus.
/s/ KPMG LLP
Minneapolis, Minnesota
October 29, 1999
<PAGE>
EXHIBIT 23.3
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
SUPERVALU INC. on Form S-4 of the report of Deloitte & Touche LLP dated April 6,
1998, appearing in and incorporated by reference in the Annual Report on Form
10-K of SUPERVALU INC. for the year ended February 27, 1999 and to the reference
to Deloitte & Touche LLP under the heading "Experts" in the Registration
Statement.
/S/ Deloitte & Touche LLP
Minneapolis, Minnesota
October 28, 1999
<PAGE>
EXHIBIT 23.4
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-4) and related Prospectus of SUPERVALU INC. for
the registration of $600,000,000 of debt securities and to the incorporation by
reference therein of our report dated June 15, 1999 on the consolidated
financial statements and schedule of Richfood Holdings, Inc. as of May 1, 1999
and May 2, 1998 and for each of the three fiscal years in the period ended May
1, 1999, included in the Current Report on Form 8-K of SUPERVALU INC. dated
September 10, 1999, filed with the Securities and Exchange Commission.
/s/ ERNST & YOUNG LLP
Richmond, Virginia
November 1, 1999
<PAGE>
Exhibit 24.1
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints Michael W. Wright, David L.
Boehnen and John P. Breedlove, and each of them, his or her true and lawful
attorneys-in-fact and agents, each acting alone, with full powers of
substitution and resubstitution, for him or her and in his or her name, place
and stead, in any and all capacities, to sign a Registration Statement on Form
S-4, and any and all amendments (including post-effective amendments) thereto,
relating to the exchange and issuance of new registered debt securities (7 7/8%
Notes due 2009 and 7 5/8% Notes due 2004) of SUPERVALU INC. for previously
issued unregistered debt securities (7 7/8% Notes due 2009 and 7 5/8% Notes due
2004) of SUPERVALU INC., and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto such attorneys-in-fact and agents, and each of them,
full power and authority to do and perform each and every act and thing
requisite or necessary to be done in and about the premises, as fully to all
intents and purposes as he or she might or could do in person, hereby ratifying
and confirming all that such attorneys-in-fact and agents or any of them, or
their substitute or substitutes, may lawfully do or cause to be done by virtue
hereof.
IN WITNESS WHEREOF, this Power of Attorney has been signed on the 13th Day
of October, 1999 by the following persons:
/s/ Michael W. Wright /s/ Carol F. St. Mark
-------------------------- -----------------------------
Michael W. Wright Carol F. St. Mark
/s/ Susan E. Engel /s/ Steven S. Rogers
-------------------------- -----------------------------
Susan E. Engel Steven S. Rogers
/s/ Richard L. Knowlton /s/ Harriet Perlmutter
-------------------------- -----------------------------
Richard L. Knowlton Harriet Perlmutter
/s/ Charles M. Lillis /s/ Lawrence A. Del Santo
-------------------------- -----------------------------
Charles M. Lillis Lawrence A. Del Santo
/s/ Edwin C. Gage /s/ Garnett L. Keith, Jr.
-------------------------- -----------------------------
Edwin C. Gage Garnett L. Keith, Jr.
/s/ William A. Hodder
--------------------------
William A. Hodder
<PAGE>
_____________________________________________
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
____________________
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST
INDENTURE ACT OF 1939 OF A CORPORATION
DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(b)(2)______
______________________________
BANKERS TRUST COMPANY
(Exact name of trustee as specified in its charter)
NEW YORK 13-4941247
(Jurisdiction of Incorporation or (I.R.S. Employer
organization if not a U.S. national bank) Identification no.)
FOUR ALBANY STREET
NEW YORK, NEW YORK 10006
(Address of principal (Zip Code)
executive offices)
Bankers Trust Company
Legal Department
130 Liberty Street, 31st Floor
New York, New York 10006
(212) 250-2201
(Name, address and telephone number of agent for service)
_________________________________
SUPERVALU INC. 41-0617000
(Exact name of Registrants as (I.R.S. Employer Number)
specified in its Charter)
11840 Valley View Road
Eden Prairie, Minnesota 55344
(612) 828-4000
(Address, including zip code, and telephone number of Registrants principal
executive offices)
7 7/8% Notes due 2009
7 5/8% Notes due 2004
(Title of the indenture securities)
<PAGE>
Item 1. General Information.
Furnish the following information as to the trustee.
(a) Name and address of each examining or supervising authority
to which it is subject.
Name Address
---- -------
Federal Reserve Bank (2nd District) New York, NY
Federal Deposit Insurance Corporation Washington, D.C.
New York State Banking Department Albany, NY
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with Obligor.
If the obligor is an affiliate of the Trustee, describe each such
affiliation.
None.
Item 3.-15. Not Applicable
Item 16. List of Exhibits.
Exhibit 1 - Restated Organization Certificate of Bankers Trust
Company dated August 6, 1998, Certificate of Amendment
of the Organization Certificate of Bankers Trust
Company dated September 25, 1998, and Certificate of
Amendment of the Organization Certificate of Bankers
Trust Company dated December 18, 1998, copies attached.
Exhibit 2 - Certificate of Authority to commence business -
Incorporated herein by reference to Exhibit 2 filed
with Form T-1 Statement, Registration No. 33-21047.
Exhibit 3 - Authorization of the Trustee to exercise corporate
trust powers - Incorporated herein by reference to
Exhibit 2 filed with Form T-1 Statement, Registration
No. 33-21047.
Exhibit 4 - Existing By-Laws of Bankers Trust Company, as amended
on June 22, 1999. Copy attached.
-2-
<PAGE>
Exhibit 5 - Not applicable.
Exhibit 6 - Consent of Bankers Trust Company required by Section
321(b) of the Act. - Incorporated herein by reference
to Exhibit 4 filed with Form T-1 Statement,
Registration No. 22-18864.
Exhibit 7 - The latest report of condition of Bankers Trust Company
dated as of June 30, 1999. Copy attached.
Exhibit 8 - Not Applicable.
Exhibit 9 - Not Applicable.
-3-
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, Bankers Trust Company, a corporation organized and
existing under the laws of the State of New York, has duly caused this statement
of eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in The City of New York, and State of New York, on this 28th day
of October , 1999
BANKERS TRUST COMPANY
By: /s/ Susan Johnson
-------------------------
Susan Johnson
Assistant Vice President
-4-
<PAGE>
State of New York,
Banking Department
I, MANUEL KURSKY, Deputy Superintendent of Banks of the State of
New York, DO HEREBY APPROVE the annexed Certificate entitled
"CERTIFICATE OF AMENDMENT OF THE ORGANIZATION CERTIFICATE OF BANKERS
TRUST COMPANY Under Section 8005 of the Banking Law," dated September
16, 1998, providing for an increase in authorized capital stock from
$3,001,666,670 consisting of 200,166,667 shares with a par value of
$10 each designated as Common Stock and 1,000 shares with a par value
of $1,000,000 each designated as Series Preferred Stock to
$3,501,666,670 consisting of 200,166,667 shares with a par value of
$10 each designated as Common Stock and 1,500 shares with a par value
of $1,000,000 each designated as Series Preferred Stock.
Witness, my hand and official seal of the Banking Department at the
City of New York,
this 25th day of September in the Year of our Lord
---- ---------
one thousand nine hundred and ninety-eight.
Manuel Kursky
------------------------------
Deputy Superintendent of Banks
<PAGE>
RESTATED
ORGANIZATION
CERTIFICATE
OF
BANKERS TRUST COMPANY
____________________________
Under Section 8007
Of the Banking Law
____________________________
Bankers Trust Company
130 Liberty Street
New York, N.Y. 10006
Counterpart Filed in the Office of the Superintendent of Banks, State of New
York, August 31, 1998
<PAGE>
RESTATED ORGANIZATION CERTIFICATE
OF
BANKERS TRUST
Under Section 8007 of the Banking Law
_____________________________
We, James T. Byrne, Jr. and Lea Lahtinen, being respectively a Managing
Director and an Assistant Secretary and a Vice President and an Assistant
Secretary of BANKERS TRUST COMPANY, do hereby certify:
1. The name of the corporation is Bankers Trust Company.
2. The organization certificate of the corporation was filed by the
Superintendent of Banks of the State of New York on the March 5, 1903.
3. The text of the organization certificate, as amended heretofore, is
hereby restated without further amendment or change to read as herein set forth
in full, to wit:
"Certificate of Organization
of
Bankers Trust Company
Know All Men By These Presents That we, the undersigned, James A. Blair,
James G. Cannon, E. C. Converse, Henry P. Davison, Granville W. Garth, A. Barton
Hepburn, Will Logan, Gates W. McGarrah, George W. Perkins, William H. Porter,
John F. Thompson, Albert H. Wiggin, Samuel Woolverton and Edward F. C. Young,
all being persons of full age and citizens of the United States, and a majority
of us being residents of the State of New York, desiring to form a corporation
to be known as a Trust Company, do hereby associate ourselves together for that
purpose under and pursuant to the laws of the State of New York, and for such
purpose we do hereby, under our respective hands and seals, execute and duly
acknowledge this Organization Certificate in duplicate, and hereby specifically
state as follows, to wit:
I. The name by which the said corporation shall be known is Bankers Trust
Company.
II. The place where its business is to be transacted is the City of New
York, in the State of New York.
III. Capital Stock: The amount of capital stock which the corporation is
hereafter to have is Three Billion One Million, Six Hundred Sixty-Six Thousand,
Six Hundred Seventy Dollars ($3,001,666,670), divided into Two Hundred Million,
One Hundred Sixty-Six Thousand, Six Hundred Sixty-Seven (200,166,667) shares
with a par value of $10 each designated as Common Stock and 1,000 shares with a
par value of One Million Dollars ($1,000,000) each designated as Series
Preferred Stock.
(a) Common Stock
<PAGE>
1. Dividends: Subject to all of the rights of the Series Preferred Stock,
dividends may be declared and paid or set apart for payment upon the Common
Stock out of any assets or funds of the corporation legally available for the
payment of dividends.
2. Voting Rights: Except as otherwise expressly provided with respect to
the Series Preferred Stock or with respect to any series of the Series Preferred
Stock, the Common Stock shall have the exclusive right to vote for the election
of directors and for all other purposes, each holder of the Common Stock being
entitled to one vote for each share thereof held.
3. Liquidation: Upon any liquidation, dissolution or winding up of the
corporation, whether voluntary or involuntary, and after the holders of the
Series Preferred Stock of each series shall have been paid in full the amounts
to which they respectively shall be entitled, or a sum sufficient for the
payment in full set aside, the remaining net assets of the corporation shall be
distributed pro rata to the holders of the Common Stock in accordance with their
respective rights and interests, to the exclusion of the holders of the Series
Preferred Stock.
4. Preemptive Rights: No holder of Common Stock of the corporation shall
be entitled, as such, as a matter of right, to subscribe for or purchase any
part of any new or additional issue of stock of any class or series whatsoever,
any rights or options to purchase stock of any class or series whatsoever, or
any securities convertible into, exchangeable for or carrying rights or options
to purchase stock of any class or series whatsoever, whether now or hereafter
authorized, and whether issued for cash or other consideration, or by way of
dividend or other distribution.
(b) Series Preferred Stock
1. Board Authority: The Series Preferred Stock may be issued from time to
time by the Board of Directors as herein provided in one or more series. The
designations, relative rights, preferences and limitations of the Series
Preferred Stock, and particularly of the shares of each series thereof, may, to
the extent permitted by law, be similar to or may differ from those of any other
series. The Board of Directors of the corporation is hereby expressly granted
authority, subject to the provisions of this Article III, to issue from time to
time Series Preferred Stock in one or more series and to fix from time to time
before issuance thereof, by filing a certificate pursuant to the Banking Law,
the number of shares in each such series of such class and all designations,
relative rights (including the right, to the extent permitted by law, to convert
into shares of any class or into shares of any series of any class), preferences
and limitations of the shares in each such series, including, buy without
limiting the generality of the foregoing, the following:
(i) The number of shares to constitute such series (which number may
at any time, or from time to time, be increased or decreased by the Board
of Directors, notwithstanding that shares of the series may be outstanding
at the time of such increase or decrease, unless the Board of Directors
shall have otherwise provided in creating such series) and the distinctive
designation thereof;
(ii) The dividend rate on the shares of such series, whether or not
dividends on the shares of such series shall be cumulative, and the date or
dates, if any, from which dividends thereon shall be cumulative;
(iii) Whether or not the share of such series shall be redeemable,
and, if redeemable, the date or dates upon or after which they shall be
redeemable, the amount or amounts per share (which shall be, in the case of
each share, not less than its preference upon involuntary liquidation, plus
an amount equal to all dividends thereon accrued and unpaid, whether or not
earned or declared) payable thereon in the case of the redemption
<PAGE>
thereof, which amount may vary at different redemption dates or otherwise
as permitted by law;
(iv) The right, if any, of holders of shares of such series to
convert the same into, or exchange the same for, Common Stock or other
stock as permitted by law, and the terms and conditions of such conversion
or exchange, as well as provisions for adjustment of the conversion rate in
such events as the Board of Directors shall determine;
(v) The amount per share payable on the shares of such series upon
the voluntary and involuntary liquidation, dissolution or winding up of the
corporation;
(vi) Whether the holders of shares of such series shall have voting
power, full or limited, in addition to the voting powers provided by law
and, in case additional voting powers are accorded, to fix the extent
thereof; and
(vii) Generally to fix the other rights and privileges and any
qualifications, limitations or restrictions of such rights and privileges
of such series, provided, however, that no such rights, privileges,
qualifications, limitations or restrictions shall be in conflict with the
organization certificate of the corporation or with the resolution or
resolutions adopted by the Board of Directors providing for the issue of
any series of which there are shares outstanding.
All shares of Series Preferred Stock of the same series shall be identical
in all respects, except that shares of any one series issued at different times
may differ as to dates, if any, from which dividends thereon may accumulate. All
shares of Series Preferred Stock of all series shall be of equal rank and shall
be identical in all respects except that to the extent not otherwise limited in
this Article III any series may differ from any other series with respect to any
one or more of the designations, relative rights, preferences and limitations
described or referred to in subparagraphs (I) to (vii) inclusive above.
2. Dividends: Dividends on the outstanding Series Preferred Stock of each
series shall be declared and paid or set apart for payment before any dividends
shall be declared and paid or set apart for payment on the Common Stock with
respect to the same quarterly dividend period. Dividends on any shares of Series
Preferred Stock shall be cumulative only if and to the extent set forth in a
certificate filed pursuant to law. After dividends on all shares of Series
Preferred Stock (including cumulative dividends if and to the extend any such
shares shall be entitled thereto) shall have been declared and paid or set apart
for payment with respect to any quarterly dividend period, then and not
otherwise so long as any shares of Series Preferred Stock shall remain
outstanding, dividends may be declared and paid or set apart for payment with
respect to the same quarterly dividend period on the Common Stock out the assets
or funds of the corporation legally available therefor.
All Shares of Series Preferred Stock of all series shall be of equal rank,
preference and priority as to dividends irrespective of whether or not the rates
of dividends to which the same shall be entitled shall be the same and when the
stated dividends are not paid in full, the shares of all series of the Series
Preferred Stock shall share ratably in the payment thereof in accordance with
the sums which would by payable on such shares if all dividends were paid in
full, provided, however, that nay two or more series of the Series Preferred
Stock may differ from each other as to the existence and extent of the right to
cumulative dividends, as aforesaid.
3. Voting Rights: Except as otherwise specifically provided in the
certificate filed pursuant to law with respect to any series of the Series
Preferred Stock, or as otherwise provided by law, the Series Preferred Stock
shall not have any right to vote for the election of directors or for any other
purpose and the Common Stock shall have the exclusive right to vote for the
election of directors and for all other purposes.
<PAGE>
4. Liquidation: In the event of any liquidation, dissolution or winding
up of the corporation, whether voluntary or involuntary, each series of Series
Preferred Stock shall have preference and priority over the Common Stock for
payment of the amount to which each outstanding series of Series Preferred Stock
shall be entitled in accordance with the provisions thereof and each holder of
Series Preferred Stock shall be entitled to be paid in full such amount, or have
a sum sufficient for the payment in full set aside, before any payments shall be
made to the holders of the Common Stock. If, upon liquidation, dissolution or
winding up of the corporation, the assets of the corporation or proceeds
thereof, distributable among the holders of the shares of all series of the
Series Preferred Stock shall be insufficient to pay in full the preferential
amount aforesaid, then such assets, or the proceeds thereof, shall be
distributed among such holders ratably in accordance with the respective amounts
which would be payable if all amounts payable thereon were paid in full. After
the payment to the holders of Series Preferred Stock of all such amounts to
which they are entitled, as above provided, the remaining assets and funds of
the corporation shall be divided and paid to the holders of the Common Stock.
5. Redemption: In the event that the Series Preferred Stock of any series
shall be made redeemable as provided in clause (iii) of paragraph 1 of section
(b) of this Article III, the corporation, at the option of the Board of
Directors, may redeem at any time or times, and from time to time, all or any
part of any one or more series of Series Preferred Stock outstanding by paying
for each share the then applicable redemption price fixed by the Board of
Directors as provided herein, plus an amount equal to accrued and unpaid
dividends to the date fixed for redemption, upon such notice and terms as may be
specifically provided in the certificate filed pursuant to law with respect to
the series.
6. Preemptive Rights: No holder of Series Preferred Stock of the
corporation shall be entitled, as such, as a matter or right, to subscribe for
or purchase any part of any new or additional issue of stock of any class or
series whatsoever, any rights or options to purchase stock of any class or
series whatsoever, or any securities convertible into, exchangeable for or
carrying rights or options to purchase stock of any class or series whatsoever,
whether now or hereafter authorized, and whether issued for cash or other
consideration, or by way of dividend.
(c) Provisions relating to Floating Rate Non-Cumulative Preferred Stock,
Series A. (Liquidation value $1,000,000 per share.)
1. Designation: The distinctive designation of the series established
hereby shall be "Floating Rate Non-Cumulative Preferred Stock, Series A"
(hereinafter called "Series A Preferred Stock").
2. Number: The number of shares of Series A Preferred Stock shall
initially be 250 shares. Shares of Series A Preferred Stock redeemed, purchased
or otherwise acquired by the corporation shall be cancelled and shall revert to
authorized but unissued Series Preferred Stock undesignated as to series.
3. Dividends:
(a) Dividend Payments Dates. Holders of the Series A Preferred Stock shall
be entitled to receive non-cumulative cash dividends when, as and if declared by
the Board of Directors of the corporation, out of funds legally available
therefor, from the date of original issuance of such shares (the "Issue Date")
and such dividends will be payable on March 28, June 28, September 28 and
December 28 of each year (:Dividend Payment Date") commencing September 28,
1990, at a rate per annum as determined in paragraph 3(b) below. The period
beginning on the Issue Date and ending on the day preceding the first Dividend
Payment Date and each successive period beginning on a Dividend Payment Date and
ending on the date preceding the next succeeding Dividend Payment Date is herein
called a "Dividend Period". If any Dividend payment Date shall be, in The City
of New York, a Sunday or a legal holiday or a day on which banking institutions
are authorized by law to close, then payment will be postponed to the next
<PAGE>
succeeding business day with the same force and effect as if made on the
Dividend Payment Date, and no interest shall accrue for such Dividend Period
after such Dividend Payment Date.
(b) Dividend Rate. The dividend rare from time to time payable in respect
of Series A Preferred Stock (the "Dividend Rate") shall be determined on the
basis of the following provisions:
(i) On the Dividend Determination Date, LIBOR will be determined on the
basis of the offered rates for deposits in U.S. dollars having a maturity of
three months commencing on the second London Business Day immediately following
such Dividend Determination Date, as such rates appear on the Reuters Screen
LIBO Page as of 11:00 A.M. London time, on such Dividend Determination Date. If
at least two such offered rates appear on the Reuters Screen LIBO Page, LIBOR in
respect of such Dividend Determination Dates will be the arithmetic mean
(rounded to the nearest one-hundredth of a percent, with five one-thousandths of
a percent rounded upwards) of such offered rates. If fewer than those offered
rates appear, LIBOR in respect of such Dividend Determination Date will be
determined as described in paragraph (ii) below.
(ii) On any Dividend Determination Date on which fewer than those offered
rates for the applicable maturity appear on the Reuters Screen LIBO Page as
specified in paragraph (I) above, LIBOR will be determined on the basis of the
rates at which deposits in U.S. dollars having a maturity of three months
commending on the second London Business Day immediately following such Dividend
Determination Date and in a principal amount of not less than $1,000,000 that is
representative of a single transaction in such market at such time are offered
by three major banks in the London interbank market selected by the corporation
at approximately 11:00 A.M., London time, on such Dividend Determination Date to
prime banks in the London market. The corporation will request the principal
London office of each of such banks to provide a quotation of its rate. If at
least two such quotations are provided, LIBOR in respect of such Dividend
Determination Date will be the arithmetic mean (rounded to the nearest one-
hundredth of a percent, with five one-thousandths of a percent rounded upwards)
of such quotations. If fewer than two quotations are provided, LIBOR in respect
of such Dividend Determination Date will be the arithmetic mean (rounded to the
nearest one-hundredth of a percent, with five one-thousandths of a percent
rounded upwards) of the rates quoted by three major banks in New York City
selected by the corporation at approximately 11:00 A.M., New York City time, on
such Dividend Determination Date for loans in U.S. dollars to leading European
banks having a maturity of three months commencing on the second London Business
Day immediately following such Dividend Determination Date and in a principal
amount of not less than $1,000,000 that is representative of a single
transaction in such market at such time; provided, however, that if the banks
selected as aforesaid by the corporation are not quoting as aforementioned in
this sentence, then, with respect to such Dividend Period, LIBOR for the
preceding Dividend Period will be continued as LIBOR for such Dividend Period.
(ii) The Dividend Rate for any Dividend Period shall be equal to the lower
of 18% of 50 basis points above LIBOR for such Dividend Period as LIBOR is
determined by sections (I) or (ii) above.
As used above, the term "Dividend Determination Date" shall mean, with resect to
any Dividend Period, the second London Business Day prior to the commencement of
such Dividend Period; and the term "London Business Day" shall mean any day that
is not a Saturday or Sunday and that, in New York City, is not a day on which
banking institutions generally are authorized or required by law or executive
order to close and that is a day on which dealings in deposits in U.S. dollars
are transacted in the London interbank market.
4. Voting Rights: The holders of the Series A Preferred Stock shall have
the voting power and rights set forth in this paragraph 4 and shall have no
other voting power or rights except as otherwise may from time to time be
required by law.
<PAGE>
So long as any shares of Series A Preferred Stock remain outstanding, the
corporation shall not, without the affirmative vote or consent of the holders of
at least a majority of the votes of the Series Preferred Stock entitled to vote
outstanding at the time, given in person or by proxy, either in writing or by
resolution adopted at a meeting at which the holders of Series A Preferred Stock
(alone or together with the holders of one or more other series of Series
Preferred Stock at the time outstanding and entitled to vote) vote separately as
a class, alter the provisions of the Series Preferred Stock so as to materially
adversely affect its rights; provided, however, that in the event any such
materially adverse alteration affects the rights of only the Series A Preferred
Stock, then the alteration may be effected with the vote or consent of at least
a majority of the votes of the Series A Preferred Stock; provided, further, that
an increase in the amount of the authorized Series Preferred Stock and/or the
creation and/or issuance of other series of Series Preferred Stock in accordance
with the organization certificate shall not be, nor be deemed to be, materially
adverse alterations. In connection with the exercise of the voting rights
contained in the preceding sentence, holders of all series of Series Preferred
Stock which are granted such voting rights (of which the Series A Preferred
Stock is the initial series) shall vote as a class (except as specifically
provided otherwise) and each holder of Series A Preferred Stock shall have one
vote for each share of stock held and each other series shall have such number
of votes, if any, for each share of stock held as may be granted to them.
The foregoing voting provisions will not apply if, in connection with the
matters specified, provision is made for the redemption or retirement of all
outstanding Series A Preferred Stock.
5. Liquidation: Subject to the provisions of section (b) of this Article
III, upon any liquidation, dissolution or winding up of the corporation, whether
voluntary or involuntary, the holders of the Series A Preferred Stock shall have
preference and priority over the Common Stock for payment out of the assets of
the corporation or proceeds thereof, whether from capital or surplus, of
$1,000,000 per share (the "liquidation value") together with the amount of all
dividends accrued and unpaid thereon, and after such payment the holders of
Series A Preferred Stock shall be entitled to no other payments.
6. Redemption: Subject to the provisions of section (b) of this Article
III, Series A Preferred Stock may be redeemed, at the option of the corporation
in whole or part, at any time or from time to time at a redemption price of
$1,000,000 per share, in each case plus accrued and unpaid dividends to the date
of redemption.
At the option of the corporation, shares of Series A Preferred Stock
redeemed or otherwise acquired may be restored to the status of authorized but
unissued shares of Series Preferred Stock.
In the case of any redemption, the corporation shall give notice of such
redemption to the holders of the Series A Preferred Stock to be redeemed in the
following manner: a notice specifying the shares to be redeemed and the time and
place or redemption (and, if less than the total outstanding shares are to be
redeemed, specifying the certificate numbers and number of shares to be
redeemed) shall be mailed by first class mail, addressed to the holders of
record of the Series A Preferred Stock to be redeemed at their respective
addressees as the same shall appear upon the books of the corporation, not more
than sixty (60) days and not less than thirty (30) days previous to the date
fixed for redemption. In the event such notice is not given to any shareholder
such failure to give notice shall not affect the notice given to other
shareholders. If less than the whole amount of outstanding Series A Preferred
Stock is to be redeemed, the shares to be redeemed shall be selected by lot or
pro rata in any manner determined by resolution of the Board of Directors to b
fair and proper. From and after the date fixed in any such notice as the date of
redemption (unless default shall be made by the corporation in providing moneys
at the time and place of redemption for the payment of the redemption price) all
dividends upon the Series A Preferred Stock so called for redemption shall cease
to accrue, and all rights of the holders of said Series A Preferred Stock as
stockholders in the corporation, except the right to receive the
<PAGE>
redemption price (without interest) upon surrender of the certificate
representing the Series A Preferred Stock so called for redemption, duly
endorsed for transfer, if required, shall cease and terminate. The corporation's
obligation to provide moneys in accordance with the preceding sentence shall be
deemed fulfilled if, on or before the redemption date, the corporation shall
deposit with a bank or trust company (which may e an affiliate of the
corporation) having an office in the Borough of Manhattan, City of New York,
having a capital and surplus of at least $5,000,000 funds necessary for such
redemption, in trust with irrevocable instructions that such funds be applied to
the redemption of the shares of Series A Preferred Stock so called for
redemption. Any interest accrued on such funds shall be paid to the corporation
from time to time. Any funds so deposited and unclaimed at the end of two (2)
years from such redemption date shall be released or repaid to the corporation,
after which the holders of such shares of Series A Preferred Stock so called for
redemption shall look only to the corporation for payment of the redemption
price.
IV. The name, residence and post office address of each member of
the corporation are as follows:
<TABLE>
<CAPTION>
Name Residence Post Office Address
- ---- --------- -------------------
<S> <C> <C>
James A. Blair 9 West 50/th/ Street, 33 Wall Street,
Manhattan, New York City Manhattan, New York City
James G. Cannon 72 East 54/th/ Street, 14 Nassau Street,
Manhattan New York City Manhattan, New York City
E. C. Converse 3 East 78/th/ Street, 139 Broadway,
Manhattan, New York City Manhattan, New York City
Henry P. Davison Englewood, 2 Wall Street,
New Jersey Manhattan, New York City
Granville W. Garth 160 West 57/th/ Street, 33 Wall Street
Manhattan, New York City Manhattan, New York City
A. Barton Hepburn 205 West 57/th/ Street 83 Cedar Street
Manhattan, New York City Manhattan, New York City
William Logan Montclair, 13 Nassau Street
New Jersey Manhattan, New York City
George W. Perkins Riverdale, 23 Wall Street,
New York Manhattan, New York City
William H. Porter 56 East 67/th/ Street 270 Broadway,
Manhattan, New York City Manhattan, New York City
John F. Thompson Newark, 143 Liberty Street,
New Jersey Manhattan, New York City
Albert H. Wiggin 42 West 49/th/ Street, 214 Broadway,
Manhattan, New York City Manhattan, New York City
Samuel Woolverton Mount Vernon, 34 Wall Street,
New York Manhattan, New York City
Edward F.C. Young 85 Glenwood Avenue, 1 Exchange Place,
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C>
Jersey City, New Jersey Jersey City, New Jersey
</TABLE>
V. The existence of the corporation shall be perpetual.
VI. The subscribers, the members of the said corporation, do, and each for
himself does, hereby declare that he will accept the responsibilities and
faithfully discharge the duties of a director therein, if elected to act as
such, when authorized accordance with the provisions of the Banking Law of the
State of New York.
VII. The number of directors of the corporation shall not be less that 10
nor more than 25."
4. The foregoing restatement of the organization certificate was
authorized by the Board of Directors of the corporation at a meeting held on
July 21, 1998.
IN WITNESS WHEREOF, we have made and subscribed this certificate this 6/th/
day of August, 1998.
IN WITNESS WHEREOF, we have made and subscribed this certificate this 6th
day of August, 1998.
James T. Byrne, Jr.
--------------------------------------
James T. Byrne, Jr.
Managing Director and Secretary
Lea Lahtinen
--------------------------------------
Lea Lahtinen
Vice President and Assistant Secretary
Lea Lahtinen
--------------------------------------
Lea Lahtinen
<PAGE>
State of New York )
) ss:
County of New York )
Lea Lahtinen, being duly sworn, deposes and says that she is a Vice
President and an Assistant Secretary of Bankers Trust Company, the corporation
described in the foregoing certificate; that she has read the foregoing
certificate and knows the contents thereof, and that the statements herein
contained are true.
Lea Lahtinen
--------------------------------------
Lea Lahtinen
Sworn to before me this
6th day of August, 1998.
Sandra L. West
- --------------------------------------
Notary Public
SANDRA L. WEST
Notary Public State of New York
No. 31-4942101
Qualified in New York County
Commission Expires September 19, 1998
<PAGE>
State of New York,
Banking Department
I, MANUEL KURSKY, Deputy Superintendent of Banks of the
State of New York, DO HEREBY APPROVE the annexed Certificate
entitled "RESTATED ORGANIZATION CERTIFICATE OF BANKERS TRUST
COMPANY Under Section 8007 of the Banking Law," dated August
6, 1998, providing for the restatement of the Organization
Certificate and all amendments into a single certificate.
Witness, my hand and official seal of the Banking Department
at the City of New York,
this 31st day of August in the Year of our Lord
---- ------
one thousand nine hundred and ninety-eight.
Manuel Kursky
------------------------------
Deputy Superintendent of Banks
CERTIFICATE OF AMENDMENT
<PAGE>
OF THE
ORGANIZATION CERTIFICATE
OF BANKERS TRUST
Under Section 8005 of the Banking Law
_____________________________
We, James T. Byrne, Jr. and Lea Lahtinen, being respectively a Managing
Director and Secretary and a Vice President and an Assistant Secretary of
Bankers Trust Company, do hereby certify:
1. The name of the corporation is Bankers Trust Company.
2. The organization certificate of said corporation was filed by the
Superintendent of Banks on the 5th of March, 1903.
3. The organization certificate as heretofore amended is hereby amended
to increase the aggregate number of shares which the corporation shall have
authority to issue and to increase the amount of its authorized capital stock in
conformity therewith.
4. Article III of the organization certificate with reference to the
authorized capital stock, the number of shares into which the capital stock
shall be divided, the par value of the shares and the capital stock outstanding,
which reads as follows:
"III. The amount of capital stock which the corporation is hereafter to
have is Three Billion, One Million, Six Hundred Sixty-Six Thousand, Six
Hundred Seventy Dollars ($3,001,666,670), divided into Two Hundred Million,
One Hundred Sixty-Six Thousand, Six Hundred Sixty-Seven (200,166,667)
shares with a par value of $10 each designated as Common Stock and 1000
shares with a par value of One Million Dollars ($1,000,000) each designated
as Series Preferred Stock."
is hereby amended to read as follows:
"III. The amount of capital stock which the corporation is hereafter to
have is Three Billion, Five Hundred One Million, Six Hundred Sixty-Six
Thousand, Six Hundred Seventy Dollars ($3,501,666,670), divided into Two
Hundred Million, One Hundred Sixty-Six Thousand, Six Hundred Sixty-Seven
(200,166,667) shares with a par value of $10 each designated as Common
Stock and 1500 shares with a par value of One Million Dollars ($1,000,000)
each designated as Series Preferred Stock."
<PAGE>
5. The foregoing amendment of the organization certificate was authorized
by unanimous written consent signed by the holder of all outstanding shares
entitled to vote thereon.
IN WITNESS WHEREOF, we have made and subscribed this certificate this 25th
day of September, 1998
James T. Byrne, Jr.
--------------------------------------
James T. Byrne, Jr.
Managing Director and Secretary
Lea Lahtinen
--------------------------------------
Lea Lahtinen
Vice President and Assistant Secretary
State of New York )
) ss:
County of New York )
Lea Lahtinen, being fully sworn, deposes and says that she is a Vice
President and an Assistant Secretary of Bankers Trust Company, the corporation
described in the foregoing certificate; that she has read the foregoing
certificate and knows the contents thereof, and that the statements herein
contained are true.
Lea Lahtinen
-----------------------------
Lea Lahtinen
Sworn to before me this 25/th/ day
of September, 1998
Sandra L. West
- -----------------------------------
Notary Public
SANDRA L. WEST
Notary Public State of New York
No. 31-4942101
Qualified in New York County
Commission Expires September 19, 2000
<PAGE>
State of New York,
Banking Department
I, P. VINCENT CONLON, Deputy Superintendent of Banks of
the State of New York, DO HEREBY APPROVE the annexed
Certificate entitled "CERTIFICATE OF AMENDMENT OF THE
ORGANIZATION CERTIFICATE OF BANKERS TRUST COMPANY Under
Section 8005 of the Banking Law," dated December 16, 1998,
providing for an increase in authorized capital stock from
$3,501,666,670 consisting of 200,166,667 shares with a par
value of $10 each designated as Common Stock and 1,500
shares with a par value of $1,000,000 each designated as
Series Preferred Stock to $3,627,308,670 consisting of
212,730,867 shares with a par value of $10 each designated
as Common Stock and 1,500 shares with a par value of
$1,000,000 each designated as Series Preferred Stock.
Witness, my hand and official seal of the Banking Department
at the City of New York,
this 18th day of December in the Year of our Lord
---- --------
one thousand nine hundred and ninety-eight.
P. Vincent Conlon
------------------------------
Deputy Superintendent of Banks
<PAGE>
CERTIFICATE OF AMENDMENT
OF THE
ORGANIZATION CERTIFICATE
OF BANKERS TRUST
Under Section 8005 of the Banking Law
_____________________________
We, James T. Byrne, Jr. and Lea Lahtinen, being respectively a Managing
Director and Secretary and a Vice President and an Assistant Secretary of
Bankers Trust Company, do hereby certify:
1. The name of the corporation is Bankers Trust Company.
2. The organization certificate of said corporation was filed by the
Superintendent of Banks on the 5th of March, 1903.
3. The organization certificate as heretofore amended is hereby amended
to increase the aggregate number of shares which the corporation shall have
authority to issue and to increase the amount of its authorized capital stock in
conformity therewith.
4. Article III of the organization certificate with reference to the
authorized capital stock, the number of shares into which the capital stock
shall be divided, the par value of the shares and the capital stock outstanding,
which reads as follows:
"III. The amount of capital stock which the corporation is hereafter to
have is Three Billion, Five Hundred One Million, Six Hundred Sixty-Six
Thousand, Six Hundred Seventy Dollars ($3,501,666,670), divided into Two
Hundred Million, One Hundred Sixty-Six Thousand, Six Hundred Sixty-Seven
(200,166,667) shares with a par value of $10 each designated as Common
Stock and 1500 shares with a par value of One Million Dollars ($1,000,000)
each designated as Series Preferred Stock."
is hereby amended to read as follows:
"III. The amount of capital stock which the corporation is hereafter to
have is Three Billion, Six Hundred Twenty-Seven Million, Three Hundred
Eight Thousand, Six Hundred Seventy Dollars ($3,627,308,670), divided into
Two Hundred Twelve Million, Seven Hundred Thirty Thousand, Eight Hundred
Sixty- Seven (212,730,867) shares with a par value of $10 each designated
as Common Stock and 1500 shares with a par value of One Million Dollars
($1,000,000) each designated as Series Preferred Stock."
<PAGE>
5. The foregoing amendment of the organization certificate was authorized
by unanimous written consent signed by the holder of all outstanding shares
entitled to vote thereon.
IN WITNESS WHEREOF, we have made and subscribed this certificate this 16th
day of December, 1998
James T. Byrne, Jr.
--------------------------------------
James T. Byrne, Jr.
Managing Director and Secretary
Lea Lahtinen
--------------------------------------
Lea Lahtinen
Vice President and Assistant Secretary
State of New York )
) ss:
County of New York )
Lea Lahtinen, being fully sworn, deposes and says that she is a Vice
President and an Assistant Secretary of Bankers Trust Company, the corporation
described in the foregoing certificate; that she has read the foregoing
certificate and knows the contents thereof, and that the statements herein
contained are true.
Lea Lahtinen
----------------------------
Lea Lahtinen
Sworn to before me this 16/th/ day
of December, 1998
Sandra L. West
- ----------------------------
Notary Public
SANDRA L. WEST
Notary Public State of New York
No. 31-4942101
Qualified in New York County
Commission Expires September 19, 2000
<PAGE>
BY-LAWS
JUNE 22, 1999
Bankers Trust Corporation
(Incorporated under the New York Business Corporation Law)
<PAGE>
1
BANKERS TRUST CORPORATION
_________________________________
BY-LAWS
_________________________________
ARTICLE I
SHAREHOLDERS
SECTION 1.01 Annual Meetings. The annual meetings of shareholders for the
election of directors and for the transaction of such other business as may
properly come before the meeting shall be held on the third Tuesday in April of
each year, if not a legal holiday, and if a legal holiday then on the next
succeeding business day, at such hour as shall be designated by the Board of
Directors. If no other hour shall be so designated such meeting shall be held at
3 P.M.
SECTION 1.02 Special Meetings. Special meetings of the shareholders, except
those regulated otherwise by statute, may be called at any time by the Board of
Directors, or by any person or committee expressly so authorized by the Board of
Directors and by no other person or persons.
SECTION 1.03 Place of Meetings. Meetings of shareholders shall be held at such
place within or without the State of New York as shall be determined from time
to time by the Board of Directors or, in the case of special meetings, by such
person or persons as may be authorized to call a meeting. The place in which
each meeting is to be held shall be specified in the notice of such meeting.
SECTION 1.04 Notice of Meetings. A copy of the written notice of the place,
date and hour of each meeting of shareholders shall be given personally or by
mail, not less than ten nor more than fifty days before the date of the meeting,
to each shareholder entitled to vote at such meeting. Notice of a special
meeting shall indicate that it is being issued by or at the direction of the
person or persons calling the meeting and shall also state the purpose or
purposes for which the meeting is called. Notice of any meeting at which is
proposed to take action which would entitle shareholders to receive payment for
their shares pursuant to statutory provisions must include a statement of that
purpose and to that effect. If mailed, such notices of the annual and each
special meeting are given when deposited in the United States mail, postage
prepaid, directed to the shareholder at his address as it appears in the record
of shareholders unless he shall have filed with the Secretary of the corporation
a written request that notices intended for him shall be mailed to some other
address, in which case it shall be directed to him at such other address.
SECTION 1.05 Record Date. For the purpose of determining the shareholders
entitled to notice of or to vote any meeting of shareholders or any adjournment
thereof, or to express consent to or dissent from any proposal without a
meeting, or for the purpose of determining shareholders entitled to receive
payment of any dividend or the allotment of any rights, or for the purpose of
any other action, the Board of Directors may fix, in advance, a date as the
record date for any such
<PAGE>
determination of shareholders. Such date shall not be more than fifty nor less
than ten days before the date of such meeting, nor more than fifty days prior to
any other action.
SECTION 1.06 Quorum. The presence, in person or by proxy, of the holders of a
majority of the shares entitled to vote thereat shall constitute a quorum at a
meeting of shareholders for the transaction of business, except as otherwise
provided by statute, by the Certificate of Incorporation or by the By-Laws. The
shareholders present in person or by proxy and entitled to vote at any meeting,
despite the absence of a quorum, shall have power to adjourn the meeting from
time to time, to a designated time and place, without notice other than by
announcement at the meeting, and at any adjourned meeting any business may be
transacted that might have been transacted on the original date of the meeting.
However, if after the adjournment the Board of Directors fixes a new record date
for the adjourned meeting, a notice of the adjourned meeting shall be given to
each shareholder of record on the new record date entitled to notice.
SECTION 1.07 Notice of Shareholder Business at Annual Meeting. At an annual
meeting of shareholders, only such business shall be conducted as shall have
been brought before the meeting (a) by or at the direction of the Board of
Directors or (b) by any shareholder of the corporation who complies with the
notice procedures set forth in this Section 1.07. For business to be properly
brought before an annual meeting by a shareholder, the shareholder must have
given timely notice thereof in writing to the Secretary of the corporation. To
be timely, a shareholder's notice must be delivered to or mailed and received at
the principal executive offices of the corporation not less than thirty days nor
more than fifty days prior to the meeting; provided, however, that in the event
that less than forty days' notice or prior public disclosure of the date of the
meeting is given or made to shareholders, notice by the shareholder to be timely
must be received not later than the close of business on the tenth day following
the day on which such notice of the date of the annual meeting was mailed or
such public disclosure was made. A shareholder's notice to the Secretary shall
set forth as to each matter the shareholder proposes to bring before the annual
meeting (a) a brief description of the business desired to be brought before the
annual meeting and the reasons for conducting such business at the annual
meeting, (b) the name and address, as they appear on the corporation's books, of
the shareholder proposing such business, (c) the class and number of shares of
the corporation which are beneficially owned by the shareholder and (d) any
material interest of the shareholder in such business. Notwithstanding anything
in these By-Laws to the contrary, no business shall be conducted at an annual
meeting except in accordance with the procedures set forth in this Section 1.07
and Section 2.03. The Chairman of an annual meeting shall, if the facts warrant,
determine and declare to the meeting that business was not properly brought
before the meeting and in accordance with the provisions of this Section 1.07
and Section 2.03, and if he should so determine, he shall so declare to the
meeting and any such business not properly brought before the meeting shall not
be transacted.
ARTICLE II
BOARD OF DIRECTORS
SECTION 2.01 Number and Qualifications. The business of the corporation shall
be managed by its Board of Directors. The number of directors constituting the
entire Board of Directors shall be not less than seven nor more than fifteen, as
shall be fixed from time to time by vote of a majority of the entire Board of
Directors. Each director shall be at least 21 years of age. Directors need not
be shareholders. No Officer-Director who shall have attained age 65, or earlier
relinquishes his responsibilities and title, shall be eligible to serve as a
director.
<PAGE>
SECTION 2.02 Election. At each annual meeting of shareholders, directors shall
be elected by a plurality of the votes to hold office until the next annual
meeting. Subject to the provisions of the statute, of the Certificate of
Incorporation and of the By-Laws, each director shall hold office until the
expiration of the term for which elected, and until his successor has been
elected and qualified.
SECTION 2.03 Nomination and Notification of Nomination. Subject to the rights
of holders of any class or series of stock having a preference over the Common
Stock as to dividends or upon liquidation, nominations for the election of
directors may be made by the Board of Directors or to any committee appointed by
the Board of Directors or by any shareholder entitled to vote in the election of
directors generally. However, any shareholder entitled to vote in the election
of directors generally may nominate one or more persons for election as
directors at a meeting only if written notice of such shareholder's intent to
make such nomination or nominations has been given, either by personal delivery
or by United States mail, postage prepaid, to the Secretary of the corporation
not later than (i) with respect to an election to be held at an annual meeting
of shareholders ninety days in advance of such meeting, and (ii) with respect to
an election to be held at a special meeting of shareholders for the election of
directors, the close of business on the seventh day following the date on which
notice of such meeting is first given to shareholders. Each such notice shall
set forth: (a) the name and address of the shareholder who intends to make the
nomination and of the person or persons to be nominated; (b) a representation
that the shareholder is a holder of record of stock of the corporation entitled
to vote at such meeting and intends to appear in person or by proxy at the
meeting to nominate the person or persons specified in the notice; (c) a
description of all arrangements or understandings between the shareholder and
each nominee and any other person or persons (naming such person or persons)
pursuant to which the nomination or nominations are to be made by the
shareholder; (d) such other information regarding each nominee proposed by such
shareholder as would be required to be included in a proxy statement filed
pursuant to the proxy rules of the Securities and Exchange Commission, had the
nominee been nominated, or intended to be nominated, by the Board of Directors;
and (e) the consent of each nominee to serve as a director of the corporation if
so elected. At the request of the Board of Directors, any person nominated by
the Board of Directors for election as a director shall furnish to the Secretary
of the corporation that information required to be set forth in a shareholder's
notice of nomination which pertains to the nominee. No person shall be eligible
for election as a director of the corporation unless nominated in accordance
with the procedures set forth in the By-Laws. The Chairman of the meeting shall,
if the facts warrant, determine and declare to the meeting that a nomination was
not made in accordance with the procedures prescribed by these By-Laws, and if
he should so determine, he shall so declare to the meeting and the defective
nomination shall be disregarded.
SECTION 2.04 Regular Meetings. Regular meetings of the Board of Directors may
be held without notice at such places and times as may be fixed from time to
time by resolution of the Board and a regular meeting for the purpose of
organization and transaction of other business shall be held each year after the
adjournment of the annual meeting of shareholders.
SECTION 2.05 Special Meetings. The Chairman of the Board, the Chief Executive
Officer, the President, the Senior Vice Chairman or any Vice Chairman may, and
at the request of three directors shall, call a special meeting of the Board of
Directors, two days' notice of which shall be given in person or by mail,
telegraph, radio, telephone or cable. Notice of a special meeting need not be
given to any director who submits a signed waiver of notice whether before or
after the meeting, or who attends the meeting without protesting, prior thereto
or at its commencement, the lack of notice to him.
<PAGE>
SECTION 2.06 Place of Meeting. The directors may hold their meetings, have one
or more offices, and keep the books of the corporation (except as may be
provided by law) at any place, either within or without the State of New York,
as they may from time to time determine.
SECTION 2.07 Quorum and Vote. At all meetings of the Board of Directors the
presence of one-third of the entire Board, but not less than two directors,
shall constitute a quorum for the transaction of business. Any one or more
members of the Board of Directors or of any committee thereof may participate in
a meeting of the Board of Directors or a committee thereof by means of a
conference telephone or similar communications equipment which allows all
persons participating in the meeting to hear each other at the same time.
Participation by such means shall constitute presence in person at such a
meeting. The vote of a majority of the directors present at the time of the
vote, if a quorum is present at such time, shall be the act of the Board of
Directors, except as may be otherwise provided by statute or the By-Laws.
SECTION 2.08 Vacancies. Newly created directorships resulting from increase in
the number of directors and vacancies in the Board of Directors, whether caused
by resignation, death, removal or otherwise, may be filled by vote of a majority
of the directors then in office, although less than a quorum exists.
ARTICLE III
EXECUTIVE AND OTHER COMMITTEES
SECTION 3.01 Designation and Authority. The Board of Directors, by resolution
adopted by a majority of the entire Board, may designate from among its members
an Executive Committee and other committees, each consisting of three or more
directors. Each such committee, to the extent provided in the resolution or the
By-Laws, shall have all the authority of the Board, except that no such
committee shall have authority as to:
(i) the submission to shareholders of any action as to which
shareholders' authorization is required by law.
(ii) the filling of vacancies in the Board of Directors or any committee.
(iii) the fixing of compensation of directors for serving on the Board or
on any committee.
(iv) the amendment or appeal of the By-Laws, or the adoption of new By-
Laws.
(v) the amendment or repeal of any resolution of the Board which by its
terms shall not be so amendable or repealable.
The Board may designate one or more directors as alternate members of any such
committee, who may replace any absent member or members at any meeting of such
committee. Each such committee shall serve at the pleasure of the Board of
Directors.
SECTION 3.02 Procedure. Except as may be otherwise provided by statute, by the
By-Laws or by resolution of the Board of Directors, each committee may make
rules for the call and conduct of its meetings. Each committee shall keep a
record of its acts and proceedings and shall report the same from time to time
to the Board of Directors.
<PAGE>
ARTICLE IV
OFFICERS
SECTION 4.01 Titles and General. The Board of Directors shall elect from among
their number a Chairman of the Board and a Chief Executive Officer, and may also
elect a President, a Senior Vice Chairman, one or more Vice Chairmen, one or
more Executive Vice Presidents, one or more Senior Vice Presidents, one or more
Principals, one or more Vice Presidents, a Secretary, a Controller, a Treasurer,
a General Counsel, a General Auditor, and a General Credit Auditor, who need not
be directors. The officers of the corporation may also include such other
officers or assistant officers as shall from time to time be elected or
appointed by the Board. The Chairman of the Board or the Chief Executive Officer
or, in their absence, the President, the Senior Vice Chairman or any Vice
Chairman, may from time to time appoint assistant officers. All officers elected
or appointed by the Board of Directors shall hold their respective offices
during the pleasure of the Board of Directors, and all assistant officers shall
hold office at the pleasure of the Board or the Chairman of the Board or the
Chief Executive Officer or, in their absence, the President, the Senior Vice
Chairman or any Vice Chairman. The Board of Directors may require any and all
officers and employees to give security for the faithful performance of their
duties.
SECTION 4.02 Chairman of the Board. The Chairman of the Board shall preside at
all meetings of the shareholders and of the Board of Directors. Subject to the
Board of Directors, he shall exercise all the powers and perform all the duties
usual to such office and shall have such other powers as may be prescribed by
the Board of Directors or the Executive Committee or vested in him by the By-
Laws.
SECTION 4.03 Chief Executive Officer. The Board of Directors shall designate
the Chief Executive Officer of the corporation, which person may also hold the
additional title of Chairman of the Board, President, Senior Vice Chairman or
Vice Chairman. Subject to the Board of Directors, he shall exercise all the
powers and perform all the duties usual to such office and shall have such other
powers as may be prescribed by the Board of Directors or the Executive Committee
or vested in him by the By-Laws.
SECTION 4.04 Chairman of the Board, President, Senior Vice Chairman, Vice
Chairmen, Executive Vice Presidents, Senior Vice Presidents, Principals and Vice
Presidents. The Chairman of the Board or, in his absence or incapacity the
President or, in his absence or incapacity, the Senior Vice Chairman, the Vice
Chairmen, the Executive Vice Presidents, or in their absence, the Senior Vice
Presidents, in the order established by the Board of Directors shall, in the
absence or incapacity of the Chief Executive Officer perform the duties of the
Chief Executive Officer. The President, the Senior Vice Chairman, the Vice
Chairmen, the Executive Vice Presidents, the Senior Vice Presidents, the
Principals, and the Vice Presidents shall also perform such other duties and
have such other powers as may be prescribed or assigned to them, respectively,
from time to time by the Board of Directors, the Executive Committee, the Chief
Executive Officer, or the By-Laws.
SECTION 4.05 Controller. The Controller shall perform all the duties customary
to that office and except as may be otherwise provided by the Board of Directors
shall have the general supervision of the books of account of the corporation
and shall also perform such other duties and have such powers as may be
prescribed or assigned to him from time to time by the Board of Directors, the
Executive Committee, the Chief Executive Officer, or the By-Laws.
SECTION 4.06 Secretary. The Secretary shall keep the minutes of the meetings
of the Board of Directors and of the shareholders and shall have the custody of
the seal of the corporation. He
<PAGE>
shall perform all other duties usual to that office, and shall also perform such
other duties and have such powers as may be prescribed or assigned to him from
time to time by the Board of Directors, the Executive Committee, the Chairman of
the Board, the Chief Executive Officer, or the By-Laws.
ARTICLE V
INDEMNIFICATION OF DIRECTORS, OFFICERS AND OTHERS
SECTION 5.01 The corporation shall, to the fullest extent permitted by Section
721 of the New York Business Corporation Law, indemnify any person who is or was
made, or threatened to be made, a party to an action or proceeding, whether
civil or criminal, whether involving any actual or alleged breach of duty,
neglect or error, any accountability, or any actual or alleged misstatement,
misleading statement or other act or omission and whether brought or threatened
in any court or administrative or legislative body or agency, including an
action by or in the right of the corporation to procure a judgment in its favor
and an action by or in the right of any other corporation of any type or kind,
domestic or foreign, or any partnership, joint venture, trust, employee benefit
plan or other enterprise, which any director or officer of the corporation is
serving or served in any capacity at the request of the corporation by reason of
the fact that he, his testator or intestate, is or was a director or officer of
the corporation, or is serving or served such other corporation, partnership,
joint venture, trust, employee benefit plan or other enterprise in any capacity,
against judgments, fines, amounts paid in settlement, and costs, charges and
expenses, including attorneys' fees, or any appeal therein; provided, however,
that no indemnification shall be provided to any such person if a judgment or
other final adjudication adverse to the director or officer establishes that (i)
his acts were committed in bad faith or were the result of active and deliberate
dishonesty and, in either case, were material to the cause of action so
adjudicated, or (ii) he personally gained in fact a financial profit or other
advantage to which he was not legally entitled.
SECTION 5.02 The corporation may indemnify any other person to whom the
corporation is permitted to provide indemnification or the advancement of
expenses by applicable law, whether pursuant to rights granted pursuant to, or
provided by, the New York Business Corporation Law or other rights created by
(i) a resolution of shareholders, (ii) a resolution of directors, or (iii) an
agreement providing for such indemnification, it being expressly intended that
these By-Laws authorize the creation of other rights in any such manner.
SECTION 5.03 The corporation shall, from time to time, reimburse or advance to
any person referred to in Section 5.01 the funds necessary for payment of
expenses, including attorneys' fees, incurred in connection with any action or
proceeding referred to in Section 5.01, upon receipt of a written undertaking by
or on behalf of such person to repay such amount(s) if a judgment or other final
adjudication adverse to the director or officer establishes that (i) his acts
were committed in bad faith or were the result of active and deliberate
dishonesty and, in either case, were material to the cause of action so
adjudicated, or (ii) he personally gained in fact a financial profit or other
advantage to which he was not legally entitled.
SECTION 5.04 Any director or officer of the corporation serving (i) another
corporation, of which a majority of the shares entitled to vote in the election
of its directors is held by the corporation, or (ii) any employee benefit plan
of the corporation or any corporation referred to in clause (i), in any capacity
shall be deemed to be doing so at the request of the corporation. In all other
cases, the provisions of this Article V will apply (i) only if the person
serving another corporation or any partnership, joint venture, trust, employee
benefit plan or other enterprise so served at the specific request of the
corporation, evidenced by a written communication signed by
<PAGE>
the Chairman of the Board, the Chief Executive Officer, the President, the
Senior Vice Chairman or any Vice Chairman, and (ii) only if and to the extent
that, after making such efforts as the Chairman of the Board, the Chief
Executive Officer, or the President shall deem adequate in the circumstances,
such person shall be unable to obtain indemnification from such other enterprise
or its insurer.
SECTION 5.05 Any person entitled to be indemnified or to the reimbursement or
advancement of expenses as a matter of right pursuant to this Article V may
elect to have the right to indemnification (or advancement of expenses)
interpreted on the basis of the applicable law in effect at the time of the
occurrence of the event or events giving rise to the action or proceeding, to
the extent permitted by law, or on the basis of the applicable law in effect at
the time indemnification is sought.
SECTION 5.06 The right to be indemnified or to the reimbursement or
advancement of expenses pursuant to this Article V (i) is a contract right
pursuant to which the person entitled thereto may bring suit as if the
provisions hereof were set forth in a separate written contract between the
corporation and the director or officer, (ii) is intended to be retroactive and
shall be available with respect to events occurring prior to the adoption
hereof, and (iii) shall continue to exist after the rescission or restrictive
modification hereof with respect to events occurring prior thereto.
SECTION 5.07 If a request to be indemnified or for the reimbursement or
advancement of expenses pursuant hereto is not paid in full by the corporation
within thirty days after a written claim has been received by the corporation,
the claimant may at any time thereafter bring suit against the corporation to
recover the unpaid amount of the claim and, if successful in whole or in part,
the claimant shall be entitled also to be paid the expenses of prosecuting such
claim. Neither the failure of the corporation (including its Board of Directors,
independent legal counsel, or its shareholders) to have made a determination
prior to the commencement of such action that indemnification of or
reimbursement or advancement of expenses to the claimant is proper in the
circumstances, nor an actual determination by the corporation (including its
Board of Directors, independent legal counsel, or its shareholders) that the
claimant is not entitled to indemnification or to the reimbursement or
advancement of expenses, shall be a defense to the action or create a
presumption that the claimant is not so entitled.
SECTION 5.08 A person who has been successful, on the merits or otherwise, in
the defense of a civil or criminal action or proceeding of the character
described in Section 5.01 shall be entitled to indemnification only as provided
in Sections 5.01 and 5.03, notwithstanding any provision of the New York
Business Corporation Law to the contrary.
ARTICLE VI
SEAL
SECTION 6.01 Corporate Seal. The corporate seal shall contain the name of the
corporation and the year and state of its incorporation. The seal may be altered
from time to time at the discretion of the Board of Directors.
<PAGE>
ARTICLE VII
SHARE CERTIFICATES
SECTION 7.01 Form. The certificates for shares of the corporation shall be in
such form as shall be approved by the Board of Directors and shall be signed by
the Chairman of the Board, the Chief Executive Officer, the President, the
Senior Vice Chairman or any Vice Chairman and the Secretary or an Assistant
Secretary, and shall be sealed with the seal of the corporation or a facsimile
thereof. The signatures of the officers upon the certificate may be facsimiles
if the certificate is countersigned by a transfer agent or registered by a
registrar other than the corporation itself or its employees.
ARTICLE VIII
CHECKS
SECTION 8.01 Signatures. All checks, drafts and other orders for the payment
of money shall be signed by such officer or officers or agent or agents as the
Board of Directors may designate from time to time.
ARTICLE IX
AMENDMENT
SECTION 9.01 Amendment of By-Laws. The By-Laws may be amended, repealed or
added to by vote of the holders of the shares at the time entitled to vote in
the election of any directors. The Board of Directors may also amend, repeal or
add to the By-Laws, but any By-Laws adopted by the Board of Directors may be
amended or repealed by the shareholders entitled to vote thereon as provided
herein. If any By-Law regulating an impending election of directors is adopted,
amended or repealed by the Board, there shall be set forth in the notice of the
next meeting of shareholders for the election of directors the By-Laws so
adopted, amended or repealed, together with concise statement of the changes
made.
ARTICLE X
SECTION 10.01 Construction. The masculine gender, when appearing in these By-
Laws, shall be deemed to include the feminine gender.
<PAGE>
I, Susan Johnson, Assistant Vice President of Bankers Trust Company, New York,
New York, hereby certify that the foregoing is a complete, true and correct copy
of the By-Laws of Bankers Trust Company, and that the same are in full force and
effect at this date.
________________
Susan Johnson
Assistant Vice President
DATED: September 28, 1999
<PAGE>
<TABLE>
<S> <C> <C> <C> <C>
Legal Title of Bank: Bankers Trust Company Call Date: 06/30/99 State#: 36-4840 FFIEC 031
Address: 130 Liberty Street Vendor ID: D Cert#: 00623 Page RC-1
City, State ZIP: New York, NY 10006 Transit#: 21001003
</TABLE>
11
Consolidated Report of Condition for Insured Commercial
and State-Chartered Savings Banks for June 30, 1999
All schedules are to be reported in thousands of dollars.
Unless otherwise indicated, reported the amount
outstanding as of the last business day of the quarter.
Schedule RC--Balance Sheet
<TABLE>
<CAPTION>
C400
---------------------------
Dollar Amounts in Thousands RCFD
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C>
ASSETS / / / / / / / / /
1. Cash and balances due from depository institutions (from Schedule RC-A): / / / / / / / / /
a. Noninterest-bearing balances and currency and coin (1)..................... 0081 2,138,000 1.a.
b. Interest-bearing balances (2).............................................. 0071 5,465,000 1.b.
2. Securities: / / / / / / / / /
a. Held-to-maturity securities (from Schedule RC-B, column A)................. 1754 0 2.a.
b. Available-for-sale securities (from Schedule RC-B, column D)............... 1773 1,811,000 2.b.
3. Federal funds sold and securities purchased under agreements to resell.......... 135 19,558,000 3.
4. Loans and lease financing receivables:.......................................... / / / / / / / / /
a. Loans and leases, net of unearned income (from Schedule RC-C) RCFD 2122 22,038,000 / / / / / / / / / 4.a.
b. LESS: Allowance for loan and lease losses................... RCFD 3123 458,000 / / / / / / / / / 4.b.
c. LESS: Allocated transfer risk reserve ...................... RCFD 3128 0 / / / / / / / / / 4.c.
d. Loans and leases, net of unearned income, / / / / / / / / /
allowance, and reserve (item 4.a minus 4.b and 4.c)...................... 2125 21,580,000 4.d.
5. Trading Assets (from schedule RC-D)............................................. 3545 18,767,000 5.
6. Premises and fixed assets (including capitalized leases)........................ 2145 877,000 6.
7. Other real estate owned (from Schedule RC-M).................................... 2150 88,,000 7.
8. Investments in unconsolidated subsidiaries and associated companies (from Schedule RC-M) 2130 948,000 8.
9. Customers' liability to this bank on acceptances outstanding.................... 2155 230,000 9.
10. Intangible assets (from Schedule RC-M).......................................... 2143 100,000 10.
11. Other assets (from Schedule RC-F)............................................... 2160 3,956,000 11.
12. Total assets (sum of items 1 through 11)........................................ 2170 75,518,000 12.
</TABLE>
__________________________
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
<PAGE>
<TABLE>
<S> <C> <C> <C> <C>
Legal Title of Bank: Bankers Trust Company Call Date: 06/30/99 State#: 364840 FFIEC 031
Address: 130 Liberty Street Vendor ID: D Cert#: 00623 Page RC-2
City, State Zip: New York, NY 10006 Transit#: 21001003
</TABLE>
12
Schedule RC--Continued
<TABLE>
<CAPTION>
Dollar Amounts in Thousands
- -----------------------------------------------------------------------------------------------------------
LIABILITIES
<S> <C>
13. Deposits: / / / / / / / / / / / /
a. In domestic offices (sum of totals of columns A and C from Schedule RC-E, part I) RCON 2200 16,538,000 13.a.
(1) Noninterest-bearing(1)............................RCON 6631 2,636,000 / / / / / / / / / / / / 13.a.(1)
(2) Interest-bearing..................................RCON 6636 13,902,000 / / / / / / / / / / / / 13.a.(2)
b. In foreign offices, Edge and Agreement subsidiaries, and IBFs (from Schedule RC-E / / / / / / / / / / / /
part II) RCFN 2200 18,293,000 13.b.
(1) Noninterest-bearing...............................RCFN 6631 3,202,000 / / / / / / / / / / / / 13.b.(1)
(2) Interest-bearing..................................RCFN 6636 15,091,000 / / / / / / / / / / / / 13.b.(2)
14. Federal funds purchased and securities sold under agreements to repurchase RCFD 2800 5,772,000 14.
15. a. Demand notes issued to the U.S. Treasury....... RCON 2840 500,000 15.a.
b. Trading liabilities (from Schedule RC-D)....... RCFD 3548 15,013,000 15.b.
16. Other borrowed money (includes mortgage indebtedness and obligations under
capitalized leases): / / / / / / / / / / / /
a. With a remaining maturity of one year or less.. RCFD 2332 3,157,000 16.a.
b. With a remaining maturity of more than one year through three years.................. A547 2,990,000 16.b.
c. With a remaining maturity of more than three years............. A548 364,000 16.
17. Not Applicable. / / / / / / / / / / / / 17.
18. Bank's liability on acceptances executed and outstanding RCFD 2920 230,000 18.
19. Subordinated notes and debentures (2) RCFD 3200 331,000 19.
20. Other liabilities (from Schedule RC-G) RCFD 2930 6,588,000 20.
21. Total liabilities (sum of items 13 through 20) RCFD 2948 69,776,000 21.
22. Not Applicable / / / / / / / / / / / /
/ / / / / / / / / / / / 22.
EQUITY CAPITAL / / / / / / / / / / / /
23. Perpetual preferred stock and related surplus RCFD 3838 1,500,000 23.
24. Common stock........ RCFD 3230 2,127,000 24.
25. Surplus (exclude all surplus related to preferred stock) RCFD 3839 541,000 25.
26. a. Undivided profits and capital reserves......... RCFD 3632 1,798,000 26.a.
b. Net unrealized holding gains (losses) on available-for-sale securities............. RCFD 8434 (5,000)26.b.
c. Accumulated net gains (losses) on cash flow hedges RCFD 4336 0 26c.
27. Cumulative foreign currency translation adjustments RCFD 3284 ( 219,000)27.
28. Total equity capital (sum of items 23 through 27) RCFD 3210 5,742,000 28.
29. Total liabilities and equity capital (sum of items 21 and 28) RCFD 3300 75,518,000 29
</TABLE>
Memorandum
To be reported only with the March Report of Condition.
<TABLE>
<S> <C>
1. Indicate in the box at the right the number of the statement
below that best describes the most comprehensive level of Number
auditing work performed for the bank by independent external --------------------------------------
auditors as of any date during 1997..................................... RCFD 6724 N/A M.1
-------------------------------
1 = Independent audit of the bank conducted in accordance 4 = Directors' examination of the bank performed by other
with generally accepted auditing standards by a certified external auditors (may be required by state chartering
public accounting firm which submits a report on the bank authority)
2 = Independent audit of the bank's parent holding company 5 = Review of the bank's financial statements by external
conducted in accordance with generally accepted auditing auditors
standards by a certified public accounting firm which 6 = Compilation of the bank's financial statements by
submits a report on the consolidated holding company external auditors
(but not on the bank separately) 7 = Other audit procedures (excluding tax preparation work)
3 = Directors' examination of the bank conducted in 8 = No external audit work
accordance with generally accepted auditing standards by
a certified public accounting firm (may be required by state
chartering authority)
</TABLE>
______________________
(1) Including total demand deposits and noninterest-bearing time and savings
deposits.
(2) Includes limited-life preferred stock and related surplus.
<PAGE>
Exhibit 99.1
LETTER OF TRANSMITTAL
SUPERVALU INC.
Offer to Exchange
Registered [____]% Notes due [____]
For Any and All Outstanding
Unregistered [____]% Notes due [____]
CUSIP No. [________]
Pursuant to the Prospectus dated ________________________, 1999
-------------------------------------------------------------------------
THE EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M. NEW YORK CITY TIME, ON
___________________, 1999, UNLESS EXTENDED (THE "EXPIRATION DATE").
TENDERS MAY BE WITHDRAWN PRIOR TO 5:00 P.M., NEW YORK CITY TIME,
ON THE EXPIRATION DATE.
-------------------------------------------------------------------------
The Exchange Agent for the Exchange Offer is Bankers Trust Company
<TABLE>
By Overnight Mail, Courier or By Hand: By Mail:
Telegram:
<S> <C> <C>
BT Services Tennessee, Inc. Bankers Trust Company BT Services Tennessee, Inc.
Corporate Trust & Agency Services Corporate Trust & Agency Services Reorganization Unit
Reorganization Unit Attn: Reorganization Department P.O. Box 292737
648 Grassmere Park Road Receipt & Delivery Window Nashville, TN 37229-2737
Nashville, TN 37211 123 Washington Street, 1st floor
New York, NY 10006
By Facsimile Transmission:
(615) 835-3701
Confirm by Telephone:
(615) 835-3572
For Information Call:
(800) 735-7777
____________________________
</TABLE>
DELIVERY OF THIS LETTER OF TRANSMITTAL TO AN ADDRESS OTHER THAN AS SET
FORTH ABOVE, OR TRANSMISSION OF INSTRUCTIONS VIA FACSIMILE OTHER THAN AS SET
FORTH ABOVE, WILL NOT CONSTITUTE A VALID DELIVERY.
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY BEFORE COMPLETING THIS
LETTER OF TRANSMITTAL.
<PAGE>
The undersigned acknowledges that he or she has received and reviewed the
Prospectus, dated _________________, 1999 (the "Prospectus"), of SUPERVALU INC.,
a Delaware corporation (the "Company"), and this Letter of Transmittal (the
"Letter"), which together constitute the Company's offer (the "Exchange Offer")
to exchange its [____]% Notes due [____] which have been registered under the
Securities Act of 1933, as amended (the "New Notes"), for a like principal
amount of the Company's issued and outstanding unregistered [____]% Notes due
[____] (the "Original Notes").
For each Original Note accepted for exchange, the Holder of such Original
Note will receive a New Note having a principal amount equal to that of the
surrendered Original Note. The New Notes will bear interest from the most recent
date to which interest has been paid on the Original Notes or, if no interest
has been paid on the Original Notes, from [________], 1999. Accordingly,
registered Holders of New Notes on the relevant record date for the first
interest payment date following the consummation of the Exchange Offer will
receive interest accrued from the most recent date to which interest has been
paid or, if no interest has been paid, from [________], 1999. However, if that
record date occurs prior to completion of the Exchange Offer, then the interest
payable on the first interest payment date following the completion of the
Exchange Offer will be paid to the registered Holders of the Original Notes on
that record date. Original Notes accepted for exchange will cease to accrue
interest from and after the date of consummation of the Exchange Offer and will
be cancelled. Holders of Original Notes whose Original Notes are accepted for
exchange will not receive any payment in respect of accrued interest on such
Original Notes otherwise payable on any interest payment date the record date
for which occurs on or after consummation of the Exchange Offer.
This Letter is to be completed by a Holder of Original Notes either if (1)
certificates are to be forwarded herewith or (2) tenders are to be made by book-
entry transfer to the account maintained by the Exchange Agent at The Depository
Trust Company ("DTC" or the "Book-Entry Transfer Facility") pursuant to the
procedures set forth in "The Exchange Offer--Book-Entry Transfer" section of the
Prospectus. Holders of Original Notes whose certificates are not immediately
available, or who are unable to deliver their certificates or confirmation of
the book-entry tender of their Original Notes into the Exchange Agent's account
at the Book-Entry Transfer Facility (a "Book-Entry Confirmation") and all other
documents required by this Letter to the Exchange Agent on or prior to the
Expiration Date, must tender their Original Notes according to the guaranteed
delivery procedures set forth in "The Exchange Offer--Guaranteed Delivery
Procedures" section of the Prospectus. See Instruction 1. Delivery of
documents to the Book-Entry Transfer Facility does not constitute delivery to
the Exchange Agent.
Tenders by book-entry transfer also may be made by delivering an Agent's
Message in lieu of this Letter. The term "Agent's Message" means a message
transmitted by the Book-Entry Transfer Facility and received by the Exchange
Agent and forming a part of a Book-Entry Confirmation, which states that the
Book-Entry Transfer Facility has received an express acknowledgment from the
tendering participant, which acknowledgment states that such participant has
received and agrees to be bound by this Letter and the Company may enforce this
Letter against such participant.
As used in this Letter, the term "Holder" with respect to the Exchange
Offer means any person in whose name Original Notes are registered on the books
of the Company or, with respect to interests in global notes held by DTC, any
DTC participant listed in an official DTC proxy. The undersigned has completed
the appropriate boxes below and signed this Letter to indicate the action the
undersigned desires to take with respect to the Exchange Offer.
If the undersigned is not a broker-dealer, the undersigned represents that
it is not engaged in, and does not intend to engage in, a distribution of New
Notes. If the undersigned is a broker-dealer that will receive New Notes, the
undersigned represents that the Original Notes to be exchanged for the New Notes
were acquired as a result of market-making activities or other trading
activities, and the undersigned acknowledges that it will deliver a prospectus
meeting the requirements of the Securities Act of 1933, as amended, in
connection with any resale of such New Notes; however, by so acknowledging and
by delivering such a prospectus the undersigned will not be deemed to admit that
it is an "underwriter" within the meaning of the Securities Act of 1933, as
amended.
-2-
<PAGE>
List below the Original Notes to which this Letter relates. If the space
provided below is inadequate, the certificate numbers and principal amount of
Original Notes should be listed on a separate signed schedule affixed hereto.
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------
DESCRIPTION OF ORIGINAL NOTES
- -----------------------------------------------------------------------------------------------------------------
Aggregate
Name(s) and Address(es) of Registered Holder(s) Certificate Principal Amount Principal Amount
(Please fill in, if blank) Number(s)* of Original Notes Tendered**
----------------------------------------------------------------------------------------------------------------
<S> <C>
________________________________________________________________________________________________________________
________________________________________________________________________________________________________________
________________________________________________________________________________________________________________
________________________________________________________________________________________________________________
Total:
- ----------------------------------------------------------------------------------------------------------------
* Do not complete if Original Notes are being tendered by book-entry transfer.
- ---------------------------------------------------------------------------------------------------------------
** A Holder will be deemed to have tendered ALL Original Notes unless a lesser amount is specified in this
column. See Instruction 2. Original Notes tendered hereby must be in denominations of $100,000 and
integral multiples of $1,000 in excess thereof. See Instruction 1.
- ---------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------
[_] CHECK HERE IF TENDERED ORIGINAL NOTES ARE BEING DELIVERED BY BOOK-ENTRY TRANSFER MADE TO THE ACCOUNT
MAINTAINED BY THE EXCHANGE AGENT WITH THE BOOK-ENTRY TRANSFER FACILITY AND COMPLETE THE FOLLOWING:
Name of Tendering Institution________________________________________________________________________________
Account Number ______________________ Transaction Code Number________________________________________________
- ---------------------------------------------------------------------------------------------------------------
[_] CHECK HERE IF TENDERED ORIGINAL NOTES ARE BEING DELIVERED PURSUANT TO A NOTICE OF GUARANTEED DELIVERY
PREVIOUSLY SENT TO THE EXCHANGE AGENT AND COMPLETE THE FOLLOWING:
Name(s) of Registered Holder(s) ______________________________________________________________________________
Window Ticket Number (if any) _______________________________________________________________________________
Date of Execution of Notice of Guaranteed Delivery ___________________________________________________________
Name of Institution Which Guaranteed Delivery ________________________________________________________________
If Delivered by Book-Entry Transfer, Complete the Following:
Account Number ______________________ Transaction Code Number ________________________________________________
- ---------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------
[_] CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10 ADDITIONAL COPIES OF THE PROSPECTUS AND
10 COPIES OF ANY AMENDMENTS OR SUPPLEMENTS THERETO.
Name: _________________________________________________________________________________________________________
Address:_______________________________________________________________________________________________________
- ---------------------------------------------------------------------------------------------------------------
</TABLE>
-3-
<PAGE>
NOTE: SIGNATURES MUST BE PROVIDED BELOW
PLEASE READ CAREFULLY THE ACCOMPANYING INSTRUCTIONS
Ladies and Gentlemen:
Upon the terms and subject to the conditions of the Exchange Offer, the
undersigned hereby tenders to the Company the aggregate principal amount of
Original Notes indicated on page 3. Subject to, and effective upon, the
acceptance for exchange of the Original Notes tendered hereby, the undersigned
hereby sells, assigns and transfers to, or upon the order of, the Company all
right, title and interest in and to such Original Notes as are being tendered
hereby.
The undersigned hereby irrevocably constitutes and appoints the Exchange
Agent as the undersigned's true and lawful agent and attorney-in-fact with
respect to such tendered Original Notes, with full power of substitution, among
other things, to cause the Original Notes to be assigned, transferred and
exchanged. The undersigned hereby represents and warrants that the undersigned
has full power and authority to tender, sell, assign and transfer the Original
Notes, and to acquire the New Notes issuable upon the exchange of such tendered
Original Notes, and that, when the same are accepted for exchange, the Company
will acquire good and unencumbered title thereto, free and clear of all liens,
restrictions, charges and encumbrances and not subject to any adverse claim when
the same are accepted by the Company. The undersigned hereby further represents
that: (1) any New Notes acquired in exchange for Original Notes tendered hereby
will have been acquired in the ordinary course of business of the person
receiving such New Notes, whether or not such person is the undersigned, (2)
neither the Holder of such Original Notes nor any such other person has an
arrangement or understanding with any person to participate in the distribution
of such New Notes and (3) neither the Holder of such Original Notes nor any such
other person is an "affiliate," as defined in Rule 405 under the Securities Act
of 1933, as amended (the "Securities Act"), of the Company.
The undersigned acknowledges that this Exchange Offer is being made in
reliance on interpretations by the staff of the Securities and Exchange
Commission (the "SEC"), as set forth in no-action letters issued to third
parties, that the New Notes issued pursuant to the Exchange Offer in exchange
for the Original Notes may be offered for resale, resold and otherwise
transferred by Holders thereof (other than any such Holder that is an
"affiliate" of the Company within the meaning of Rule 405 under the Securities
Act), without compliance with the registration and prospectus delivery
provisions of the Securities Act, provided that such Holders are not broker-
dealers, such New Notes are acquired in the ordinary course of such Holders'
business and such Holders have no arrangement or understanding with any person
to participate in the distribution of such New Notes. However, the SEC has not
considered the Exchange Offer in the context of a no-action letter and there can
be no assurance that the staff of the SEC would make a similar determination
with respect to the Exchange Offer as in other circumstances. If any Holder is
an affiliate of the Company, or has any arrangement or understanding with
respect to the distribution of the New Notes to be acquired pursuant to the
Exchange offer, such Holder (i) could not rely on the applicable interpretations
of the staff of the SEC and (ii) must comply with the registration and
prospectus delivery requirements of the Securities Act in connection with any
resale transaction. If the undersigned is a broker-dealer that will receive New
Notes for its own account in exchange for Original Notes, it represents that the
Original Notes to be exchanged for the New Notes were acquired by it as a result
of market-making activities or other trading activities and acknowledges that it
will deliver a prospectus meeting the requirements of the Securities Act in
connection with any resale of such New Notes; however, by so acknowledging and
by delivering a prospectus meeting the requirements of the Securities Act, the
undersigned will not be deemed to admit that it is an "underwriter" within the
meaning of the Securities Act.
-4-
<PAGE>
The undersigned will, upon request, execute and deliver any additional
documents reasonably deemed by the Company to be necessary or desirable to
complete the sale, assignment and transfer of the Original Notes tendered
hereby. All authority conferred or agreed to be conferred in this Letter and
every obligation of the undersigned hereunder shall be binding upon the
successors, assigns, heirs, executors, administrators, trustees in bankruptcy
and legal representatives of the undersigned and shall not be affected by, and
shall survive, the death or incapacity of the undersigned. This tender may be
withdrawn only in accordance with the procedures set forth in "The Exchange
Offer--Withdrawal Rights" section of the Prospectus.
Unless otherwise indicated herein in the box entitled "Special Issuance
Instructions" below, please deliver the New Notes (and, if applicable,
substitute certificates representing Original Notes for any Original Notes not
exchanged) in the name of the undersigned or, in the case of a book-entry
delivery of Original Notes, please credit the account indicated above maintained
at the Book-Entry Transfer Facility. Similarly, unless otherwise indicated
under the box entitled "Special Delivery Instructions" below, please send the
New Notes (and, if applicable, substitute certificates representing Original
Notes for any Original Notes not exchanged) to the undersigned at the address
shown above in the box entitled "Description of Original Notes."
The undersigned, by completing the box entitled "Description of Original
Notes" on page 3 and signing this letter, will be deemed to have tendered the
Original Notes as set forth in such box on page 3.
-5-
<PAGE>
- -------------------------------------------------------------------------------
SPECIAL ISSUANCE INSTRUCTIONS (See Instructions 3 and 4)
To be completed ONLY if Original Notes not exchanged and/or New Notes are to
be issued in the name of someone other than the person or persons whose
signature(s) appear(s) on this Letter on page 7, or if Original Notes delivered
by book-entry transfer which are not accepted for exchange are to be returned by
credit to an account maintained at the Book-Entry Transfer Facility other than
the account indicated above.
Issue: [_] New Notes [_] Original Notes
Name(s) _____________________________________________________________________
(Please Type or Print)
_____________________________________________________________________
Address _____________________________________________________________________
Taxpayer Identification or Social Security No.________________________________
[_] Credit unexchanged Original Notes delivered by book-entry transfer to
the Book-Entry Transfer Facility account set forth below.
____________________________________________________________
(Book-Entry Transfer Facility Account Number, if applicable)
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
SPECIAL DELIVERY INSTRUCTIONS (See Instructions 3 and 4)
To be completed ONLY if Original Notes not exchanged and/or New Notes are to
be sent to someone other than the person or persons whose signature(s) appear(s)
on this Letter or to such person or persons at an address other than shown in
the box entitled "Description of Original Notes" on this Letter.
Mail: [_] New Notes [_] Original Notes
Name(s) ______________________________________________________________________
(Please Type or Print)
______________________________________________________________________
Address ______________________________________________________________________
______________________________________________________________________
- -------------------------------------------------------------------------------
-6-
<PAGE>
- -------------------------------------------------------------------------------
ALL TENDERING HOLDERS PLEASE SIGN HERE
(Complete Substitute Form W-9 on next page)
x _______________________________________ _____________, 1999
x _______________________________________ _____________, 1999
Signature(s) of owner Date
Area Code and Telephone Number _________________________________________________
This Letter must be signed by the registered holder(s) or DTC
participant(s) exactly as the name(s) appear(s) on the Original Notes or on a
security position listing or by any person(s) authorized to become registered
holder(s) by endorsements and documents transmitted herewith. If signature is
by a trustee, executor, administrator, guardian, officer or other person acting
in a fiduciary or representative capacity, please provide the following
information. See Instruction 3.
Name(s): ____________________________________________________________________
(Please Type or Print)
Capacity (full title): ______________________________________________________
Address: ____________________________________________________________________
______________________________________________________________________________
Taxpayer Identification or Social Security No.:_______________________________
______________________________________________________________________________
SIGNATURE GUARANTEE
(If required by Instruction 3)
Signature(s) Guaranteed
by an Eligible Institution: _______________________________________________
(Authorized Signature)
Name and Title: ___________________________________________________________
Name of Firm: _____________________________________________________________
Dated: _______________________, 1999
- -------------------------------------------------------------------------------
IMPORTANT: This Letter (or a facsimile hereof), together with the certificates
for Original Notes or a Book-Entry Confirmation and all other required documents
or The Notice of Guaranteed Delivery, must be received by the Exchange Agent
prior to 5:00 p.m., New York City time, on the Expiration Date.
-7-
<PAGE>
TO BE COMPLETED BY ALL TENDERING HOLDERS
(See Instruction 5)
- -------------------------------------------------------------------------------
PAYOR'S NAME: Bankers Trust Company
------------------------------------
SUBSTITUTE Payor's Request for
Taxpayer Identification
Form W-9 Number ("TIN") and
Certification
Department of the Treasury
Internal Revenue Service
- --------------------------------------------------------------------------------
Part 1
PLEASE PROVIDE YOUR TIN
IN THE BOX AT RIGHT AND CERTIFY TIN: _______________________________
BY SIGNING AND DATING BELOW. Social Security Number or
Employer Identification Number
- --------------------------------------------------------------------------------
Part 2
TIN Applied For [_]
- --------------------------------------------------------------------------------
CERTIFICATION: UNDER THE PENALTIES OF PERJURY, I CERTIFY THAT:
(1) the number shown on this form is my correct Taxpayer Identification Number
(or I am waiting for a number to be issued to me);
(2) I am not subject to backup withholding either because: (a) I am exempt
from backup withholding, or (b) I have not been notified by the Internal
Revenue Service (the "IRS") that I am subject to backup withholding as a
result of a failure to report all interest or dividends, or (c) the IRS has
notified me that I am no longer subject to backup withholding; and
(3) any other information provided on this form is true and correct.
SIGNATURE _____________________________ DATE _________________________________
- --------------------------------------------------------------------------------
You must cross out item (2) of the above certification if you have been notified
by the IRS that you are subject to backup withholding because of underreporting
of interest or dividends on your tax return and you have not been notified by
the IRS that you are no longer subject to backup withholding.
- --------------------------------------------------------------------------------
YOU MUST COMPLETE THE FOLLOWING CERTIFICATE IF YOU CHECKED THE BOX
IN PART 2 OF SUBSTITUTE FORM W-9
- --------------------------------------------------------------------------------
CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER
I certify under penalties of perjury that a Taxpayer Identification Number has
not been issued to me, and either (a) I have mailed or delivered an application
to receive a Taxpayer Identification Number to the appropriate Internal Revenue
Service Center or Social Security Administration Office or (b) I intend to mail
or deliver an application in the near future. I understand that if I do not
provide a Taxpayer Identification Number by the time of the exchange, 31% of all
reportable payments made to me thereafter will be withheld until I provide a
number.
_____________________________ __________________________________
Signature Date
- --------------------------------------------------------------------------------
-8-
<PAGE>
Substitute Form W-8
Certificate of Foreign Status
- ------------------------------------------------------------------------------
______________________________________________________________________________
Name of Owner (If joint account, also give joint owner's name.)
________________________________________________________________________________
Permanent address (If you are an individual, provide the address of your
permanent residence. If you are a partnership or corporation, provide the
address of your principal office. If you are an estate or trust, provide the
permanent address or principal office of any fiduciary.)
________________________________________________________________________________
City, province or state, postal code, and country
________________________________________________________________________________
Current mailing address, if different from permanent address (Include apt. or
suite no., or P.O. box if mail is not delivered to street address.)
________________________________________________________________________________
City, town or post office, state, and ZIP code (If foreign address, enter city,
province or state, postal code, and country.)
- ------------------------------------------------------------------------------
Certification. -- Under penalties of perjury, I certify that I am an exempt
foreign person, for Backup Withholding purposes, under the U.S. Federal income
tax laws, because:
1. I am a nonresident alien individual or a foreign corporation, partnership,
estate or trust,
2. If an individual, I have not been, and do not plan to be, present in the
United States for a total of 183 days or more during the calendar year, and
3. I am neither engaged, nor plan to be engaged during the year, in a U.S.
trade or business that has effectively connected gains from transactions
with a broker or barter exchange.
________________________________________________________________________________
Signature Date
- --------------------------------------------------------------------------------
-9-
<PAGE>
INSTRUCTIONS
Forming Part of the Terms and Conditions of the Exchange Offer
1. Delivery of this Letter and Notes; Guaranteed Delivery Procedures.
This Letter is to be completed by Holders of Original Notes either if
certificates are to be forwarded herewith or if tenders are to be made pursuant
to the procedures for delivery by book-entry transfer set forth in "The Exchange
Offer--Book-Entry Transfer" section of the Prospectus. Certificates for all
physically tendered Original Notes, or Book-Entry Confirmation, as the case may
be, as well as a properly completed and duly executed Letter (or manually signed
facsimile hereof), with any required signature guarantees, and any other
documents required by this Letter, must be received by the Exchange Agent at the
address set forth herein on or prior to the Expiration Date, or the tendering
Holder must comply with the guaranteed delivery procedures set forth below.
Original Notes tendered hereby must be in denominations of principal amount of
$100,000 and integral multiples of $1,000 in excess thereof.
Holders who tender their Original Notes by delivering an Agent's Message do
not need to submit this Letter.
Holders whose certificates for Original Notes are not immediately available
or who cannot deliver their certificates and all other required documents to the
Exchange Agent on or prior to the Expiration Date, or who cannot complete the
procedure for book-entry transfer on a timely basis, may tender their Original
Notes pursuant to the guaranteed delivery procedures set forth in "The Exchange
Offer--Guaranteed Delivery Procedures" section of the Prospectus. Pursuant to
such procedures, (i) such tender must be made through an Eligible Institution,
(ii) prior to 5:00 P.M., New York City time, on the Expiration Date, the
Exchange Agent must receive from such Eligible Institution a properly completed
and duly executed Letter (or a facsimile thereof) and Notice of Guaranteed
Delivery, substantially in the form provided by the Company (by facsimile
transmission, mail or hand delivery), setting forth the name and address of the
Holder of Original Notes and the amount of Original Notes tendered stating that
the tender is being made thereby and guaranteeing that within three New York
Stock Exchange ("NYSE") trading days after the Expiration Date, the certificates
for all physically tendered Original Notes, in proper form for transfer, or a
Book-Entry confirmation, as the case may be, and any other documents required by
this Letter will be deposited by the Eligible Institution with the Exchange
Agent, and (iii) the certificates for all physically tendered Original Notes, in
proper form for transfer, or a Book-Entry Confirmation, as the case may be, and
all other documents required by this Letter, are received by the Exchange Agent
within three NYSE trading days after the Expiration Date.
The method of delivery of this Letter, the Original Notes and all other
required documents is at the election and risk of the tendering Holders, and the
delivery will be deemed made only when actually received or confirmed by the
Exchange Agent. If delivery is by mail, registered mail, properly insured, with
return receipt requested, or overnight delivery service is recommended. In all
cases, sufficient time should be allowed to ensure timely delivery.
See "The Exchange Offer" section of the Prospectus.
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<PAGE>
2. Partial Tenders (not applicable to Holders who tender by book-entry
transfer).
If less than all of the Original Notes evidenced by a submitted certificate
are to be tendered, the tendering Holder(s) should fill in the aggregate
principal amount of Original Notes to be tendered in the box above entitled
"Description of Original Notes--Principal Amount Tendered." A reissued
certificate representing the balance of non-tendered Original Notes will be sent
to such tendering Holder, unless otherwise provided in the appropriate box on
this Letter promptly after the Expiration Date. All of the Original Notes
delivered to the Exchange Agent will be deemed to have been tendered unless
otherwise indicated.
3. Signatures on this Letter; Bond Powers and Endorsements; Guarantee of
Signatures.
If this Letter is signed by the registered Holder of the Original Notes
tendered hereby, the signature must correspond exactly with the name as written
on the face of the certificates without any change whatsoever. If this Letter
is signed by a participant in DTC, the signature must correspond with the name
as it appears on the security position listing as the owner of the Original
Notes.
If any tendered Original Notes are owned of record by two or more joint
owners, all of such owners must sign this Letter.
If any tendered Original Notes are registered in different names, it will
be necessary to complete, sign and submit as many separate copies of this Letter
as there are different registrations of Original Notes.
When this Letter is signed by the registered Holder(s) of the Original
Notes specified herein and tendered hereby, no endorsements of the tendered
Original Notes or separate bond powers are required. If, however, the New Notes
are to be issued, or any untendered Original Notes are to be reissued, to a
person other than the registered Holder, then endorsements of any Original Notes
transmitted hereby or separate bond powers are required. Signatures on the
Original Notes or bond power must be guaranteed by an Eligible Institution.
If this Letter is signed by a person other than the registered Holder(s) of
any Original Notes specified herein, such Original Notes must be endorsed or
accompanied by appropriate bond powers, in either case signed exactly as the
name or names of the registered Holder or Holders appear(s) on the Original
Notes (or security position listing) and signatures on the Original Notes or
bond power must be guaranteed by an Eligible Institution.
If this Letter or any certificates or bond powers are signed by trustees,
executors, administrators, guardians, attorneys-in-fact, officers of
corporations or others acting in a fiduciary or representative capacity, such
persons should so indicate when signing, and, unless waived by the Company, must
submit proper evidence satisfactory to the Company of their authority to so act.
Endorsements on Original Notes or signatures on bond powers required by
this Instruction 3 must be guaranteed by a firm or other entity identified in
Rule 17Ad-15 under the Exchange Act as an "eligible guarantor institution,"
including (as such terms are defined therein) (i) a bank, (ii) broker, dealer,
municipal securities broker or dealer or government securities broker or dealer,
(iii) a credit union, (iv) a national securities exchange, registered securities
association or clearing agency, or (v) a savings association that is a
participant in a Securities Transfer Association (an "Eligible Institution").
Signatures on this Letter need not be guaranteed by an Eligible Institution
if the Original Notes are tendered: (i) by a registered Holder of Original
Notes (which term, for purposes of the Exchange Offer, includes any participant
in the Book-Entry Transfer Facility whose name appears on a security position
listing as the owner
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<PAGE>
of such Original Notes) who has not completed the box entitled "Special Issuance
Instructions" or "Special Delivery Instructions" on this Letter, or (ii) for the
account of an Eligible Institution.
4. Special Issuance and Delivery Instructions.
Tendering Holders of Original Notes should indicate in the applicable box
on page 6 the name and address to which New Notes issued pursuant to the
Exchange Offer and/or substitute certificates evidencing Original Notes not
exchanged are to be issued or sent, if different from the name or address of the
person signing this Letter. In the case of issuance in a different name, the
employer identification or social security number of the person named must also
be indicated. Holders tendering Original Notes by book-entry transfer may
request that Original Notes not exchanged be credited to such account maintained
at the Book-Entry Transfer Facility as such note Holder may designate hereon.
If no such instructions are given, such Original Notes not exchanged will be
returned to the name and address of the person signing this Letter.
5. Taxpayer Identification Number.
Federal income tax law generally requires that a tendering Holder whose
Original Notes are accepted for exchange must provide the Company (as payor)
with such Holder's correct Taxpayer Identification Number ("TIN") on the
Substitute Form W-9 on page 8, which in the case of a tendering Holder who is an
individual, is his or her social security number. If the Company is not
provided with the current TIN or an adequate basis for an exemption from backup
withholding, such tendering Holder may be subject to a $50 penalty imposed by
the Internal Revenue Service. In addition, the Exchange Agent may be required
to withhold 31% of the amount of any reportable payments made after the exchange
to such tendering Holder of New Notes. If withholding results in an overpayment
of taxes, a refund may be obtained.
Exempt Holders of Original Notes (including, among others, all corporations
and certain foreign individuals) are not subject to these backup withholding and
reporting requirements. Exempt holders, other than foreign individuals, should
furnish their TIN, write "Exempt" on the face of the Substitute Form W-9 and
sign, date and return the form to the Exchange Agent. See the enclosed
Guidelines for Certification of Taxpayer Identification Number on Substitute
Form W-9 (the "W-9 Guidelines") for additional instructions. If the tendering
holder of Original Notes is a nonresident alien or foreign entity not subject to
backup withholding, such holder must give the Exchange Agent a completed Form
W-8 Certificate of Foreign Status, a form of which is included on page 9.
To prevent backup withholding, each tendering Holder of Original Notes must
provide its correct TIN by completing the Substitute Form W-9 on page 8,
certifying, under penalties of perjury, that the TIN provided is correct (or
that such Holder is awaiting a TIN) and that (i) the Holder is exempt from
backup withholding, or (ii) the Holder has not been notified by the Internal
Revenue Service that such Holder is subject to backup withholding as a result of
a failure to report all interest or dividends or (iii) the Internal Revenue
Service has notified the Holder that such Holder is no longer subject to backup
withholding. If the Original Notes are in more than one name or are not in the
name of the actual owner, such Holder should consult the W-9 Guidelines for
information on which TIN to report. If such Holder does not have a TIN, such
Holder should consult the W-9 Guidelines for instructions on applying for a TIN,
check the box in Part 2 of the Substitute Form W-9 and write "applied for" in
lieu of its TIN Note. Checking this box and writing "applied for" on the form
means that such Holder has already applied for a TIN or that such Holder intends
to apply for one in the near future. If the box in Part 2 of the Substitute
Form W-9 is checked, the Exchange Agent will retain 31% of reportable payments
made to a Holder during the 60-day period following the date of the Substitute
Form W-9. If the Holder furnishes the Exchange Agent with his or her TIN within
60 days of the Substitute Form W-9, the Exchange Agent will remit such amounts
retained during such 60-day period to such Holder and no further amounts will be
retained or withheld from payments made to the Holder thereafter. If, however,
such Holder does not provide its TIN to the Exchange Agent within such 60-day
period, the Exchange Agent will remit such previously withheld amounts to the
Internal Revenue Service as backup withholding and will withhold 31% of all
reportable payments to the Holder thereafter until such Holder furnishes its TIN
to the Exchange Agent.
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<PAGE>
6. Transfer Taxes.
The Company will pay all transfer taxes, if any, applicable to the transfer
of Original Notes to it or its order pursuant to the Exchange Offer. If,
however, New Notes and/or substitute Original Notes not exchanged are to be
delivered to, or are to be registered or issued in the name of, any person other
than the registered Holder of the Original Notes tendered hereby, or if tendered
Original Notes are registered in the name of any person other than the person
signing this Letter, or if a transfer tax is imposed for any reason other than
the transfer of Original Notes to the Company or its order pursuant to the
Exchange Offer, the amount of any such transfer taxes (whether imposed on the
registered Holder or any other persons) will be payable by the tendering Holder.
If satisfactory evidence of payment of such taxes or exemption therefrom is not
submitted herewith, the amount of such transfer taxes will be billed directly to
such tendering Holder.
Except as provided in this Instruction 6, it will not be necessary for
transfer tax stamps to be affixed to the Original Notes specified in this
Letter.
7. No Conditional Tenders.
No alternative, conditional, irregular or contingent tenders will be
accepted. All tendering Holders of Original Notes, by execution of this Letter,
shall waive any right to receive notice of the acceptance of their Original
Notes for exchange.
Neither the Company, the Exchange Agent nor any other person is obligated
to give notice of any defect or irregularity with respect to any tender of
Original Notes nor shall any of them incur any liability for failure to give any
such notice.
8. Mutilated, Lost, Stolen or Destroyed Original Notes.
Any Holder whose Original Notes have been mutilated, lost, stolen or
destroyed should contact the Exchange Agent at the address indicated above for
further instructions. This Letter and related documents cannot be processed
until the procedures for replacing mutilated, lost, stolen or destroyed
certificates have been followed.
9. Withdrawal Rights
Tenders of Original Notes may be withdrawn at any time prior to 5:00 P.M.,
New York City time, on the Expiration Date. For a withdrawal of a tender of
Original Notes to be effective, a written notice of withdrawal must be received
by the Exchange Agent at the address on page 1 prior to 5:00 P.M., New York City
time, on the Expiration Date. Any such notice of withdrawal must (i) specify
the name of the person having tendered the Original Notes to be withdrawn (the
"Depositor"), (ii) identify the Original Notes to be withdrawn (including
certificate number or numbers and the principal amount of such Original Notes),
(iii) contain a statement that such Holder is withdrawing his election to have
such Original Notes exchanged, (iv) be signed by the Holder in the same manner
as the original signature on the Letter by which such Original Notes were
tendered (including any required signature guarantees) or be accompanied by
documents of transfer to have the Trustee with respect to the Original Notes
register the transfer of such Original Notes in the name of the person
withdrawing the tender and (v) specify the name in which such Original Notes are
registered, if different from that of the Depositor. If Original Notes have
been tendered pursuant to the procedure for book-entry transfer set forth in
"The Exchange Offer--Book-Entry Transfer" section of the Prospectus, any notice
of withdrawal must specify the name and number of the account at the Book-Entry
Transfer Facility to be credited with the withdrawn Original Notes and otherwise
comply with the procedures of such facility.
All questions as to the validity, form and eligibility (including time of
receipt) of such notices will be determined by the Company, whose determination
shall be final and binding on all parties. Any Original Notes so withdrawn will
be deemed not to have been validly tendered for exchange for purposes of the
Exchange Offer and no New Notes will be issued with respect thereto unless the
Original Notes so withdrawn are validly retendered. Any Original Notes that have
been tendered for exchange but which are not exchanged for any reason will be
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<PAGE>
returned to the Holder thereof without cost to such Holder (or, in the case of
Original Notes tendered by book-entry transfer into the Exchange Agent's account
at the Book-Entry Transfer Facility pursuant to the book-entry transfer
procedures set forth in "The Exchange Offer--Book-Entry Transfer" section of the
Prospectus, such Original Notes will be credited to an account maintained with
the Book-Entry Transfer Facility for the Original Notes) as soon as practicable
after withdrawal, rejection of tender or termination of the Exchange Offer.
Properly withdrawn Original Notes may be retendered by following the procedures
described above at any time on or prior to 5:00 P.M., New York City time, on the
Expiration Date.
10. Requests for Assistance or Additional Copies.
Questions relating to the procedure for tendering, as well as requests for
additional copies of the Prospectus, this Letter, the Notice of Guaranteed
Delivery and other related documents may be directed to the Exchange Agent, at
the address and telephone number indicated on page 1.
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<PAGE>
Exhibit 99.2
NOTICE OF GUARANTEED DELIVERY
FOR TENDER OF
[____]% NOTES DUE [____]
OF
SUPERVALU INC.
This Notice of Guaranteed Delivery, or one substantially equivalent to this
form, must be used to accept the Exchange Offer of SUPERVALU INC. (the
"Company") made pursuant to the Prospectus dated _________________, 1999 (the
Prospectus"), if certificates for the outstanding [____]% Notes due [____] of
the Company (the "Original Notes") are not immediately available or if the
procedure for book-entry transfer cannot be completed on a timely basis or time
will not permit all required documents to reach Bankers Trust Company, as
exchange agent (the "Exchange Agent") prior to 5:00 P.M., New York City time, on
the Expiration Date of the Exchange Offer. This Notice of Guaranteed Delivery
may be delivered or transmitted by facsimile transmission, overnight courier,
mail or hand delivery to the Exchange Agent as set forth below. In addition, in
order to utilize the guaranteed delivery procedure to tender Original Notes
pursuant to the Exchange Offer, a completed, signed and dated Letter of
Transmittal (or facsimile thereof) must also be received by the Exchange Agent
prior to 5:00 P.M., New York City time, on the Expiration Date. Capitalized
terms not defined herein are defined in the Prospectus.
The Exchange Agent for the Exchange Offer is Bankers Trust Company
<TABLE>
By Overnight Mail, Courier or By Hand: By Mail:
Telegram:
<S> <C> <C>
Bankers Trust Company BT Services Tennessee, Inc.
BT Services Tennessee, Inc. Corporate Trust & Agency Services Reorganization Unit
Corporate Trust & Agency Services Attn: Reorganization Department P.O. Box 292737
Reorganization Unit Receipt & Delivery Window Nashville, TN 37229-2737
648 Grassmere Park Road 123 Washington Street, 1st floor
Nashville, TN 37211 New York, NY 10006
By Facsimile Transmission:
(615) 835-3701
Confirm by Telephone:
(615) 835-3572
For Information Call:
(800) 735-7777
________________________
</TABLE>
Delivery of this notice to an address other than as set forth above, or
transmission of instructions via facsimile other than as set forth above, will
not constitute a valid delivery.
This notice is not to be used to guarantee signatures. If a signature on a
Letter of Transmittal is required to be guaranteed by an Eligible Institution
under the instructions thereto, the signature guarantee must appear in the
applicable space provided in the signature box on the Letter of Transmittal.
<PAGE>
Ladies and Gentlemen:
Upon the terms and subject to the conditions set forth in the Prospectus
and the accompanying Letter of Transmittal, the undersigned hereby tenders to
the Company the principal amount of Original Notes of the series set forth below
pursuant to the guaranteed delivery procedure described in "The Exchange Offer--
Guaranteed Delivery Procedures" section of the Prospectus.
- ------------------------------------- ---------------------------------------
Total Principal Amount of Original If Original Notes will be delivered by
Notes Tendered:* book-entry transfer to The Depository
Trust Company, provide account number.
$
_____________________________________
Account Number ________________________
Certificate Nos. (if available):
_____________________________________
- ------------------------------------- ----------------------------------------
* Must be in denominations of principal amount of $100,000 and integral
multiples of $1,000.
All authority herein conferred or agreed to be conferred shall survive the
death or incapacity of the undersigned and every obligation of the undersigned
hereunder shall be binding upon the heirs, personal representatives, successors
and assigns of the undersigned.
PLEASE SIGN HERE
X_______________________________________ ________________________________
X_______________________________________ ________________________________
Signature(s) of Owner(s) Date
or Authorized Signatory
Area Code and Telephone Number(s):____________________________________________
Must be signed by the registered holder(s) of Original Notes as their
name(s) appear(s) on the Original Notes or on a security position listing, or by
person(s) authorized to become registered holder(s) by endorsement and documents
transmitted with this Notice of Guaranteed Delivery. If signature is by a
trustee, executor, administrator, guardian, attorney-in-fact, officer or other
person acting in a fiduciary or representative capacity, please provide the
following information.
Please print name(s) and address(es)
Name(s): __________________________________________________________________
__________________________________________________________________
Capacity: __________________________________________________________________
Address(es): __________________________________________________________________
__________________________________________________________________
Telephone Number: _____________________________________________________________
<PAGE>
GUARANTEE
(Not to be used for signature guarantee)
The undersigned, a firm or other entity identified in Rule 17Ad-15 under
Exchange Act as an "eligible guarantor institution" including (as such terms are
defined therein) (i) a bank, (ii) broker, dealer, municipal securities broker or
dealer or government securities broker or dealer, (iii) a credit union, (iv) a
national securities exchange, registered securities association or clearing
agency, or (v) a savings association that is a participant in a Securities
Transfer Association (an "Eligible Institution"), hereby guarantees that the
certificates representing the principal amount of Original Notes tendered hereby
in proper form for transfer, or timely confirmation of the book-entry transfer
of such Original Notes into the Exchange Agent's account at The Depository Trust
Company pursuant to the procedures set forth in "The Exchange Offer--Guaranteed
Delivery Procedures" section of the Prospectus, together with any required
signature guarantee and any other documents required by the Letter of
Transmittal, will be received by the Exchange Agent at the address set forth
above, no later than three New York Stock Exchange trading days after the
Expiration Date.
______________________________________ _________________________________
Name of Firm Authorized Signature
______________________________________ _________________________________
Address Title
______________________________________ Name: __________________________
Zip Code (Please Type or Print)
______________________________________ Dated: __________________________
Telephone Number
NOTE: DO NOT SEND CERTIFICATES FOR ORIGINAL NOTES WITH THIS FORM. CERTIFICATES
FOR ORIGINAL NOTES SHOULD BE SENT ONLY WITH A COPY OF YOUR PREVIOUSLY
EXECUTED LETTER OF TRANSMITTAL.
<PAGE>
Exhibit 99.3
SUPERVALU INC.
Offer to Exchange
Registered [____]% Notes due [____]
For Any and All Outstanding Unregistered [____]% Notes due [____]
______________, 1999
To Our Clients:
Enclosed for your consideration is a Prospectus, dated __________________,
1999 (the "Prospectus"), and the related Letter of Transmittal (the "Letter of
Transmittal"), relating to the offer (the "Exchange Offer") of SUPERVALU INC.
(the "Company") to exchange its [____]% Notes due [____] (the "New Notes") which
have been registered under the Securities Act of 1933, as amended, for all of
its outstanding unregistered [____]% Notes due [____] (the "Original Notes"),
upon the terms and subject to the conditions described in the Prospectus and the
Letter of Transmittal. The Exchange Offer is being made in order to satisfy
certain obligations of the Company contained in the Registration Rights
Agreement dated [________], 1999, by and between the Company and the initial
purchasers named therein, relating to the [____]% Notes due [____].
This material is being forwarded to you as the beneficial owner of the
Original Notes held by us for your account but not registered in your name. A
tender of such Original Notes may only be made by us as the holder of record and
pursuant to your instructions.
Accordingly, we request instructions as to whether you wish us to tender on
your behalf the Original Notes held by us for your account, pursuant to the
terms and conditions set forth in the enclosed Prospectus and Letter of
Transmittal. We urge you to read the Prospectus carefully before instructing us
as to whether or not to tender your Original Notes.
Your instructions should be forwarded to us as promptly as possible in
order to permit us to tender the Original Notes on your behalf in accordance
with the provisions of the Exchange offer. The Exchange Offer will expire at
5:00 p.m., New York City time, on ___________________________, 1999, unless
extended by the Company. Any Original Notes tendered pursuant to the Exchange
Offer may be withdrawn at any time before the Expiration Date.
If you wish to have us tender your Original Notes, please instruct us by
completing, executing and returning to us the instruction form enclosed with
this letter. The Letter of Transmittal is furnished to you for information only
and may not be used directly by you to tender Original Notes.
If we do not receive written instructions in accordance with the procedures
presented in the Prospectus and the Letter of Transmittal, we will not tender
any of the outstanding Original Notes on your account.
<PAGE>
Exhibit 99.4
INSTRUCTIONS
Instruction to Registered Holder and/or DTC Participant
from Beneficial Owner
of
[____]% Notes due [____]
- --------------------------------------------------------------------------------
THE EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME,ON ,1999,
UNLESS THE OFFER IS EXTENDED. TENDERS MAY BE WITHDRAWN PRIOR TO
5:00 P.M., NEW YORK CITY TIME, ON THE EXPIRATION DATE.
- --------------------------------------------------------------------------------
To Registered Holder and/or Depository Trust Company Participant:
The undersigned hereby acknowledges receipt of the Prospectus dated
_______________, 1999 (the "Prospectus") of SUPERVALU INC., a Delaware
corporation (the "Company"), and the accompanying Letter of Transmittal (the
"Letter of Transmittal"), that together constitute the Company's offer (the
"Exchange Offer") to exchange its [____]% Notes due [____] (the "New Notes")
which have been registered under the Securities Act of 1933, as amended (the
"Securities Act"), for all of its outstanding unregistered [____]% Notes due
[____] (the "Original Notes"). Capitalized terms used but not defined herein
have the meanings ascribed to them in the Prospectus.
This will instruct you, the registered holder and/or Depository Trust
Company Participant, as to the action to be taken by you relating to the
Exchange Offer with respect to the Original Notes held by you for the account of
the undersigned.
The aggregate principal amount of Original Notes held by you for the
account of the undersigned is (Fill in amount):
$ ______________________________________ of the outstanding [____]%
Notes due [____].
With respect to the Exchange Offer, the undersigned hereby instructs you
(Check appropriate box):
[_] To TENDER the following Original Notes held by you for the account of
the undersigned (Insert principal amount of Original Notes to be
tendered, if less than all):
$ _______________________________________ of the outstanding [____]%
Notes due [____].
[_] NOT TO TENDER any Original Notes held by you for the account of the
undersigned.
If the undersigned instructs you to tender Original Notes held by you for
the account of the undersigned, it is understood that you are authorized to
make, on behalf of the undersigned (and the undersigned, by its signature below,
hereby makes to you), the representations and warranties contained in the Letter
of Transmittal that are to be made with respect to the undersigned as a
beneficial owner, including but not limited to the representations, that (i) the
undersigned is not an "affiliate" of the Company, (ii) any New Notes to be
received by the undersigned are being acquired in the ordinary course of its
business, (iii) the undersigned has no arrangement or understanding with any
person to participate in a distribution (within the meaning of the Securities
Act) of New Notes to be received in the Exchange Offer. If the undersigned is
a broker-dealer that will receive New Notes for its own account in
<PAGE>
exchange for Original Notes, it represents that the Original Notes to be
exchanged for New Notes were acquired by it as a result of market-making
activities or other trading activities and acknowledges that it will deliver a
prospectus in connection with any resale of such New Notes; however, by so
acknowledging and by delivering a prospectus, the undersigned will not be deemed
to admit that it is an "underwriter" within the meaning of the Securities Act.
- --------------------------------------------------------------------------------
SIGN HERE
Name of Beneficial Owner(s)__________________________________________________
Signature(s)_________________________________________________________________
Name(s) (please print)_______________________________________________________
Address______________________________________________________________________
_____________________________________________________________________________
Telephone Number_____________________________________________________________
Taxpayer Identification or Social Security No._______________________________
Date_________________________________________________________________________
- -----------------------------------------------------------------------------
2
<PAGE>
Exhibit 99.5
SUPERVALU INC.
Offer to Exchange
Registered [____]% Notes due [____]
For Any and All Outstanding Unregistered [____]% Notes due [____]
____________, 1999
To: Brokers, Dealers, Commercial Banks
Trust Companies and Other Nominees:
SUPERVALU INC. (the "Company") is offering, upon and subject to the terms
and conditions set forth in the Prospectus, dated [ ], 1999
(the "Prospectus"), and the enclosed Letter of Transmittal (the "Letter of
Transmittal"), to exchange (the "Exchange Offer") its [____]% Notes due [____]
(the "New Notes") which have been registered under the Securities Act of 1933,
as amended, for all of its outstanding unregistered [____]% Notes due [____]
(the "Original Notes"). The Exchange Offer is being made in order to satisfy
certain obligations of the Company contained in the Registration Rights
Agreement dated [________], 1999, by and between the Company and the initial
purchasers named therein, relating to the [____]% Notes due [____].
We are requesting that you contact your clients for whom you hold Original
Notes regarding the Exchange Offer. For your information and for forwarding to
your clients for whom you hold Original Notes registered in your name or in the
name of your nominee, or who hold Original Notes registered in their own names,
we are enclosing the following documents:
1. Prospectus dated [ ], 1999;
2. The Letter of Transmittal for your use and for the information of your
clients;
3. A form of Notice of Guaranteed Delivery;
4. A form of letter which may be sent to your clients for whose accounts
you hold Original Notes registered in your name or the name of your nominee,
along with an instruction form for obtaining such clients' instructions with
respect to the Exchange Offer; and
5. Guidelines for Certification of Taxpayer Identification Number on
Substitute Form W-9.
Your prompt action is required. The Exchange Offer will expire at 5:00
p.m., New York City time, on [ ], 1999, unless extended by the
Company (the "Expiration Date"). Original Notes tendered pursuant to the
Exchange Offer may be withdrawn at any time before the Expiration Date.
To participate in the Exchange Offer, certificates for Original Notes, or a
timely confirmation of a book-entry transfer of such Original Notes into the
Exchange Agent's account at the Depository Trust Company, together with a duly
executed and properly completed Letter of Transmittal (or facsimile thereof),
with any required signature guarantees and any other required documents, should
be sent to the Exchange Agent, all in accordance with the instructions set forth
in the Letter of Transmittal and the Prospectus.
<PAGE>
If the registered holder of Original Notes desires to tender, but such
Original Notes are not immediately available, or time will not permit such
holder's Original Notes or other required documents to reach the Exchange Agent
before the Expiration Date, or the procedure for book-entry transfer cannot be
completed on a timely basis, a tender may be effected by following the
guaranteed delivery procedures described in the Prospectus under "The Exchange
Offer -- Guaranteed Delivery Procedures."
We will, upon request, reimburse brokers, dealers, commercial banks and
trust companies for reasonable and necessary costs and expenses incurred by them
in forwarding the Prospectus and the related documents to the beneficial owners
of Original Notes held by them as nominee or in a fiduciary capacity. We will
pay or cause to be paid all transfer taxes applicable to the exchange of
Original Notes pursuant to the Exchange Offer, except as set forth in
Instruction 6 of the Letter of Transmittal.
Any inquiries you may have with respect to the Exchange Offer, or requests
for additional copies of the enclosed materials, should be directed to the
Exchange Agent at its address and telephone number set forth on the front of the
Letter of Transmittal.
Very truly yours,
SUPERVALU INC.
Nothing herein or in the enclosed documents shall constitute you or any
person as an agent of the Company or the Exchange Agent, or authorize you or any
other person to use any document or make any statements on behalf of either of
them with respect to the Exchange Offer, except for statements expressly made in
the Prospectus or the Letter of Transmittal.
Enclosures
<PAGE>
Exhibit 99.6
BANKERS TRUST COMPANY
EXCHANGE AGENT AGREEMENT
_________, __, 1999
Bankers Trust Company
Corporate Trust and
Agency Group
Four Albany Street, 4th Floor
New York, NY 10006
Attention: Corporate Market Services
Ladies and Gentlemen:
SUPERVALU INC., a Delaware corporation (the "Company"), is offering to
exchange (the "Exchange Offer") all of its outstanding 7 7/8% Notes due 2009 and
7 5/8% Notes due 2004 (the "Original Notes") for an equal principal amount of
its registered 7 7/8% Notes due 2009 and 7 5/8% Notes due 2004, respectively
(the "New Notes" and, together with the Original Notes, the "Notes"), pursuant
to a prospectus (the "Prospectus") included in the Company's Registration
Statement on Form S-4 (File No. 333- ) as amended (the "Registration
Statement"), filed with the Securities and Exchange Commission (the "SEC") and
attached hereto as Exhibit A. The term "Expiration Date" shall mean 5:00 p.m.,
---------
New York City time, on ______________________, 1999, unless the Exchange Offer
is extended as provided in the Prospectus, in which case the term "Expiration
Date" shall mean the latest date and time to which the Exchange Offer is
extended. Upon execution of this Agreement, Bankers Trust Company will act as
the Exchange Agent for the Exchange Offer (the "Exchange Agent"). Capitalized
terms used and not otherwise defined herein shall have the respective meanings
ascribed thereto in the Prospectus.
A copy of each of the form of letter of transmittal (the "Letter of
Transmittal"), the form of the notice of guaranteed delivery (the "Notice of
Guaranteed Delivery"), the form of letter to brokers, the form of letter to
clients and the instruction form (collectively, the "Tender Documents") to be
used by holders of Original Notes in order to receive New Notes pursuant to the
Exchange Offer are attached hereto as Exhibit B.
---------
The Company hereby appoints you to act as Exchange Agent in connection with
the Exchange Offer. In carrying out your duties as Exchange Agent, you are to
act in accordance with the following provisions of this Agreement:
1. You are to mail the Prospectus and the Tender Documents to all of the
holders and participants on the day that you are notified by the Company that
the Registration Statement has become effective under the Securities Act of
1933, as amended, or as soon as practicable thereafter, and to make subsequent
mailings thereof after the date thereof and to any persons who become holders
prior to the Expiration Date and to any persons as may from time to time be
requested by the Company. All mailings pursuant to this Section 1 shall be by
first class mail, postage prepaid, unless otherwise specified by the Company.
You shall also accept and comply with telephone requests for information
relating to the Exchange Offer provided that such information shall relate only
to the procedures for tendering Original Notes in (or withdrawing tenders of
Original Notes from) the Exchange Offer. All other requests for information
relating to the Exchange Offer shall be directed to the Company, Attention:
________.
2. You are to examine Letters of Transmittal and the Original Notes and
other documents delivered or mailed to you, by or for the holders, prior to the
Expiration Date, to ascertain whether (i) the Letters of Transmittal are
properly executed and completed in accordance with the instructions set forth
therein, (ii) the Original Notes are in proper form for transfer and (iii) all
other documents submitted to you are in proper form. In each case where a
Letter of Transmittal or other document has been improperly executed or
completed or, for any
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other reason, is not in proper form, or some other irregularity exists, you are
authorized to endeavor to take such action as you consider appropriate to notify
the tendering holder of such irregularity and as to the appropriate means of
resolving the same. Determination of questions as to the proper completion or
execution of the Letters of Transmittal, or as to the proper form for transfer
of the Original Notes or as to any other irregularity in connection with the
submission of Letters of Transmittal and/or Original Notes and other documents
in connection with the Exchange Offer, shall be made by the officers of, or
counsel for, the Company at their written instructions or oral direction
confirmed by facsimile. Any determination made by the Company on such questions
shall be final and binding.
3. At the written request of the Company or its counsel, you shall notify
tendering holders of Original Notes in the event of any termination of the
Exchange Offer and you will return all tendered Original Notes to the persons
entitled thereto, at the expense of the Company.
4. Tender of the Original Notes may be made only as set forth in the
Letter of Transmittal and in the section of the Prospectus captioned "The
Exchange Offer." Notwithstanding the foregoing, tenders which the Company shall
approve in writing as having been properly delivered shall be considered to be
properly tendered. Letters of Transmittal and Notices of Guaranteed Delivery
shall be recorded by you as to the date and time of receipt and shall be
preserved and retained by you at the Company's expense for one year. New Notes
are to be issued in exchange for Original Notes pursuant to the Exchange Offer
only (i) against deposit with you prior to the Expiration Date or, in the case
of a tender in accordance with the guaranteed delivery procedures outlined in
Instruction 1 of the Letter of Transmittal, within three New York Stock Exchange
trading days after the Expiration Date of the Exchange Offer, together with
executed Letters of Transmittal and other documents required by the Exchange
Offer or (ii) in the event that the holder is a participant in the Depository
Trust Company ("DTC") system, by the utilization of DTC's Automated Tender Offer
Program ("ATOP") and any evidence required by the Exchange Offer.
You are hereby directed to establish an account with respect to the
Notes at The Depositary Trust Company (the "Book Entry Transfer Facility")
within two days after the date hereof in accordance with SEC Regulation
240.17 Ad. Any financial institution that is a participant in the Book Entry
Transfer Facility system may, until the Expiration Date, make book-entry
delivery of the Notes by causing the Book Entry Facility to transfer such Notes
into your account in accordance with the procedure for such transfer established
by the Book Entry Transfer Facility. In every case, however, a Letter of
Transmittal (or a manually executed facsimile thereof), or an Agent's Message,
properly completed and duly executed, with any required signature guarantees and
any other required documents must be transmitted to and received by you prior to
the Expiration Date or the guaranteed delivery procedures described in the
Exchange Offer must be complied with.
5. Upon oral or written request of the Company (with written confirmation
of any such oral request thereafter), you will transmit by telephone, and
promptly thereafter confirm in writing to __________________ or such other
persons as the Company may reasonably request, the aggregate number and
principal amount of each series of Original Notes tendered to you and the number
and principal amount of each series of Original Notes properly tendered that
day. In addition, you will also inform the aforementioned persons, upon oral
request made from time to time (with written confirmation of such request
thereafter) prior to the Expiration Date, of such information as they or any of
them may reasonable request.
6. Upon the terms and subject to the conditions of the Exchange Offer,
delivery of New Notes will be made by you promptly after acceptance of the
tendered Original Notes. You will hold all items which are deposited for tender
with you after 5:00 p.m. New York City time, on the Expiration Date pending
further instructions from an officer of the Company.
7. If any holder shall report to you that his or her failure to surrender
Original Notes registered in his or her name is due to the loss or destruction
of a certificate or certificates, you shall request such holder (i) to furnish
to you an affidavit of loss and, if required by the Company, a bond of indemnity
in an amount and evidenced by such certificate or certificates of a surety, as
may be satisfactory to you and the Company, and (ii) to execute and deliver an
agreement to indemnify the Company and you in such form as is acceptable to you
and the Company. The obligees to be named in each such indemnity bond shall
include the Company and you. You shall report to the
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<PAGE>
Company the names of all holders who claim that their Original Notes have been
lost or destroyed and the principal amount of such Original Notes.
8. As soon as practicable after the Expiration Date, you shall mail or
deliver via the Book Entry Transfer Facility's applicable procedures, the New
Notes that such holders may be entitled to receive and you shall arrange for
cancellation of the Original Notes submitted to you or returned by DTC in
connection with ATOP. Such Original Notes shall be forwarded to _____________
for cancellation and retirement as you are instructed by the Company (or a
representative designated by the Company) in writing.
9. For your services as the Exchange Agent hereunder, the Company shall
pay you in accordance with the schedule of fees attached hereto as Exhibit C.
---------
The Company also will reimburse you for your reasonable out-of-pocket expenses
(including, but not limited to, reasonable attorneys' fees not previously paid
to you as set forth in Exhibit C) in connection with your services promptly
---------
after submission to the Company of itemized statements.
10. You are not authorized to pay any concessions, commissions or
solicitation fees to any broker, dealer, bank or other person or to engage or
utilize any person to solicit tenders.
11. As the Exchange Agent hereunder you:
(a) shall have no duties or obligations other than those specifically
set forth in the section of the Prospectus captioned "The Exchange Offer,"
herein or in the Exhibits attached hereto or as may be subsequently
requested in writing of you by the Company and agreed to by you in writing
with respect to the Exchange Offer;
(b) will be regarded as making no representations and having no
responsibilities as to the validity, accuracy, sufficiency, value or
genuineness of any Original Notes deposited with you hereunder, any New
Notes, and Tender Documents or other documents prepared by the Company in
connection with the Exchange Offer;
(c) shall not be obligated to take any legal action hereunder which
might in your judgment involve any expense or liability unless you shall
have been furnished with an indemnity reasonably satisfactory to you;
(d) may rely on, and shall be fully protected and indemnified as
provided in Section 12 hereof in acting upon, the written or oral
instructions with respect to any matter relating to your acting as Exchange
Agent specifically covered by this Agreement or supplementing or qualifying
any such action of any officer or agent of such other person or persons as
may be designated or whom you reasonably believe have been designated by
the Company;
(e) may consult with counsel satisfactory to you, including counsel
for the Company, and the advice of such counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by you in good faith and in accordance with such advice of such
counsel;
(f) shall not at any time advise any person as to the wisdom of the
Exchange Offer or as to the market value or decline or appreciation in
market value of any Original Notes or New Notes; and
(g) shall not be liable for any action which you may do or refrain
from doing in connection with this Agreement except for your gross
negligence, willful misconduct or bad faith.
12. The Company covenants and agrees to indemnify and hold harmless
Bankers Trust Company and its officers, directors, employees, agents and
affiliates (collectively, the "Indemnified Parties" and each an "Indemnified
Party") against any loss, liability or reasonable expense of any nature
(including reasonable attorneys' and other fees and expenses) incurred without
gross negligence, bad faith or willful misconduct on the part of the
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<PAGE>
Indemnified Party, in connection with the administration of the duties of the
Indemnified Parties hereunder in accordance with this Agreement; provided,
--------
however, such Indemnified Party shall use its best effort to notify the Company
- -------
by letter, or by cable, telex or telecopier confirmed by letter, of the written
assertion of a claim against such Indemnified Party, or of any action commenced
against such Indemnified Party, promptly after but in any event within 10 days
of the date such Indemnified Party shall have received any such written
assertion of a claim or shall have been served with a summons, or other legal
process, giving information as to the nature and basis of the claim; provided,
however, that failure to so notify the Company shall not relieve the Company of
any liability which it may otherwise have hereunder except such liability that
is a direct result of such Indemnified Party's failure to so notify the Company.
The Company shall be entitled to participate at its own expense in the defense
of any such claim or legal action and if the Company so elects or if the
Indemnified Party in such notice to the Company so directs, the Company shall
assume the defense of any suit brought to enforce any such claim.
Notwithstanding anything to the contrary set forth herein, you shall be entitled
to retain counsel of your choice in any suit and the Company shall pay the fees,
expenses and disbursements of such counsel. You shall not enter into a
settlement or other compromise with respect to any indemnified loss, liability
or expense without the prior written consent of the Company, which shall not be
unreasonably withheld or delayed if not adverse to the Company's interests.
13. This Agreement and your appointment as the Exchange Agent shall be
construed and enforced in accordance with the laws of the State of New York and
shall inure to the benefit of, and the obligations created hereby shall be
binding upon, the successors and assigns of the parties hereto. No other person
shall acquire or have any rights under or by virtue of this Agreement.
14. The parties hereto hereby irrevocably submit to the venue and
jurisdiction of any New York State or federal court sitting in the Borough of
Manhattan in New York City in any action or proceeding arising out of or
relating to this Agreement, and the parties hereby irrevocably agree that all
claims in respect of such action or proceeding arising out of or relating to
this Agreement, shall be heard and determined in such a New York State or
federal court. The parties hereby consent to and grant to any such court
jurisdiction over the persons of such parties and over the subject matter of any
such dispute and agree that delivery or mailing of any process or other papers
in the manner provided herein, or in such other manner as may be permitted by
law, shall be valid and sufficient service thereof.
15. This Agreement may not be modified, amended or supplemented without an
express written agreement executed by the parties hereto. Any inconsistency
between this Agreement and the Prospectus and Tender Documents, as they may from
time to time be supplemented or amended, shall be resolved in favor of the
latter two documents, except with respect to the duties, liabilities and
indemnification of you as Exchange Agent.
16. This Agreement may be executed in one or more counterparts, each of
which shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement.
17. In case any provision of this Agreement shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
18. Unless terminated earlier by the parties hereto, this Agreement shall
terminate 90 days following the Expiration Date. Notwithstanding the foregoing,
Sections 9 and 12 shall survive the termination of this Agreement. Upon any
termination of this Agreement, you shall promptly deliver to the Trustee any
certificates for Original Notes or New Notes, funds or property then held by you
as Exchange Agent under this Agreement.
19. All notices and communications hereunder shall be in writing and shall
be deemed to be duly given if delivered or sent by a nationally recognized
overnight courier or by telecopier (with a copy mailed by registered mail,
return receipt requested), and addressed as follows:
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<PAGE>
If to Company: SUPERVALU INC.
11840 Valley View Road
Eden Prairie, Minnesota 55344
Telecopier No:
Attn:
and a copy to: Dorsey & Whitney LLP
Pillsbury Center South
220 South Sixth Street
Minneapolis, Minnesota 55402
Telecopier No.: (612) 340-8738
Attn: Gary L. Tygesson
If to you: Bankers Trust Company
Corporate Trust and Agency Group
Four Albany Street - 4th Floor
New York, NY 10006
Attn.: Anthony Nista
Telephone: 212-250-4730
Telecopier: 212-250-6392/6961
or such other address or telecopy number as any of the above may have furnished
to the other parties in writing for such purposes.
20. This Letter Agreement and all of the obligations hereunder shall be
assumed by any and all successors and assigns of the Company.
If the foregoing is in accordance with your understanding, would you please
indicate your agreement by signing and returning the enclosed copy of this
Agreement to the Company.
Very truly yours,
By:___________________________
Name:
Title:
Agreed to this day of ______, 1999
BANKERS TRUST COMPANY,
as Exchange Agent
By: _______________________________
Name:
Title:
KRAS/EXCHAGT
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<PAGE>
Exhibit C
- -------------------------------------------------------------------------------
Bankers Trust Company
Corporate Trust and Agency Group
- -------------------------------------------------------------------------------
SCHEDULE OF FEES
I. Exchange Agent Acceptance Fees: $________
-------------------------------
Covers review of the Exchange Agent Agreement, the Letter of
Transmittal and other related documentation; establishment of accounts and
systems link with depositories; operational and administrative charges and time
spent in connection with the review, receipt and processing of Letters of
Transmittal, and Agent's Messages.
Note: The fees set forth in this schedule are subject to review of
- -----
documentation. The fees are also subject to change should circumstances warrant.
Out-of-pocket expenses and disbursements, including counsel fees, incurred in
the performance of our duties will be added to the billed fees. Fees for any
services not covered in this or related schedules will be based upon our
appraisal of the services rendered.
We may place orders to buy/sell financial instruments with outside
broker-dealers that we select, as well as with BT or its affiliates. These
transactions (for which normal and customary spreads or other compensation may
be earned by such broker-dealers, including BT or its affiliates, in addition to
the charges quoted above) will be executed on a riskless principal basis solely
for your account(s) and without recourse to us or our affiliates. If you choose
to invest in any mutual fund, BT and/or our affiliates may earn investment
management fees and other service fees/expenses associated with these funds as
disclosed in the mutual fund prospectus provided to you, in addition to the
charges quoted above. Likewise, BT has entered into agreements with certain
mutual funds or their agents to provide shareholder services to those funds. For
providing these shareholder services, BT is paid a fee by these mutual funds
that calculated on an annual basis does not exceed 25 basis points of the amount
of your investment in these mutual funds. In addition, if you choose to use
other services provided by BT or its affiliates, Corporate Trust or other BT
affiliates may be allocated a portion of the fees earned. We will provide
periodic account statements describing transactions executed for your
account(s). Trade confirms will be available upon your request at no additional
charge. If a transaction should fail to close for reasons beyond our control, we
reserve the right to charge our acceptance fee plus reimbursement for legal fees
incurred.
Shares of mutual funds are not deposits or obligations of, or guaranteed by,
Bankers Trust Company or any of its affiliates and are not insured by the
Federal Deposit Insurance Corporation or any other agency of the U.S.
Government. Investments in the mutual funds involve the possible loss of
principal. Please read the prospectus carefully before investing.
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