SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13E-3/A
AMENDMENT NO. 2
RULE 13E-100
TRANSACTION STATEMENT UNDER SECTION 13(e) OF THE SECURITIES
EXCHANGE ACT OF 1934 AND RULE 13e-3 THEREUNDER
RULE 13e-3 TRANSACTION STATEMENT UNDER SECTION 13(e)
OF THE SECURITIES EXCHANGE ACT OF 1934
GRISTEDE'S FOODS, INC.
(Name of the Issuer)
GRISTEDE'S FOODS, INC.
GRISTEDE'S ACQUISITION CORP.
JOHN A. CATSIMATIDIS
RED APPLE GROUP, INC.
UNITED ACQUISITION CORP.
(Names of Persons Filing Statement)
COMMON STOCK, PAR VALUE $0.02 PER SHARE
(Title of Class of Securities)
398635-10-2
(CUSIP Number of Class of Securities)
To: With a copy to:
Mr. John A. Catsimatidis Martin R. Bring, Esq.
Gristede's Foods, Inc. Anderson Kill & Olick, P.C.
823 Eleventh Avenue 1251 Avenue of the Americas
New York, New York 10019-3535 New York, New York 10020-1182
(212) 956-5803 (212) 278-1736
(Name, Address, and Telephone Numbers of Person Authorized to Receive Notices
and Communications on Behalf of the Persons Filing Statement)
This statement is filed in connection with (check the appropriate box):
a. |_| The filing of solicitation materials or an information statement subject
to Regulation 14A, Regulation 14C or Rule 13e-3(c) under the Securities Exchange
Act of 1934.
b. |_| The filing of a registration statement under the Securities Act of 1933.
c. |_| A tender offer.
d. |X| None of the above.
Check the following box if the soliciting materials or information statement
referred to in checking box (a) are preliminary copies: |_|
CALCULATION OF FILING FEE
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Transaction valuation Amount of filing fee*
$1,491,542 $188.98
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* This calculation is based upon $126.70 per $1,000,000 of transaction valuation
shown above. For purposes of calculation of this fee only, this transaction
valuation is based on the number of shares that are not owned by Gristede's
Acquisition Corp. multiplied by the proposed merger consideration.
|_| Check the box if any part of the fee is offset as provided by Exchange Act
Rule 0-11(a)(2) and identify the filing with which the offsetting fee was
previously paid. Identify the previous filing by registration statement number,
or the Form or Schedule and the date of its filing.
(1) Amount Previously Paid:____________ (3) Filing Party:__________________
(2) Form or Registration No.:__________ (4) Date Filed:____________________
ITEM 1. SUMMARY TERM SHEET.
The information set forth under the caption "Summary Term Sheet" in the Going
Private Statement filed as Exhibit 16(a)(1) to this Schedule (the "Going Private
Statement") is incorporated by reference pursuant to General Instruction F to
Schedule 13E-3.
ITEM 2. SUBJECT COMPANY INFORMATION.
(a) Name and Address. Gristede's Foods, Inc. (the "Company") is the subject
company. Its principal executive office is located at 823 Eleventh Avenue, New
York, New York 10019-3535 and its telephone number is (212) 956-5803.
(b) Securities. Gristede's Common Stock, par value $0.02 per share ("Common
Stock"), trades on the American Stock Exchange under the symbol "GRI." As of
August 31, 2004, there were 19,636,574 outstanding shares of Common Stock.
(c) Trading Market and Price. The information set forth under the caption
"Certain Market Information" of the Going Private Statement is incorporated by
reference pursuant to General Instruction F to Schedule 13E-3.
(d) Dividends. No dividends have been paid during the past two years with
respect to the subject securities. The Company's revolving credit facility
restricts the Company's ability to pay dividends.
(e) Prior Public Offerings. There have been no prior public offerings for cash
during the past three years.
(f) Prior Stock Purchases. Not applicable.
ITEM 3. IDENTITY AND BACKGROUND OF FILING PERSON.
(a) Name and Address. This Schedule is being filed by the Company, Gristede's
Acquisition Corp. ("Mergerco"), Red Apple Group, Inc. ("RAG"), United
Acquisition Corp. ("UAC") and John A. Catsimatidis, the President, Chief
Executive Officer and Treasurer of the Company, and the President and Chief
Executive Officer of Mergerco. The Company's principal executive office is
located at 823 Eleventh Avenue, New York, New York 10019-3535, and its telephone
number is (212) 956-5803. The information required by this item with respect to
Mergerco, RAG, UAC, and Mr. Catsimatidis is set forth under the caption "The
Parties" of the Going Private Statement and is incorporated by reference
pursuant to General Instruction F to Schedule 13E-3.
(b) Business and Background of Entities. The information required by this item
with respect to Mergerco, RAG and UAC is set forth under the caption "The
Parties" of the Going Private Statement and is incorporated by reference
pursuant to General Instruction F to Schedule 13E-3. Neither Mergerco, RAG nor
UAC has been convicted in a criminal proceeding (excluding traffic violations
and similar misdemeanors) during the past five years. Neither Mergerco, RAG nor
UAC has been a party to any judicial or administrative proceeding during the
past five years that resulted in a judgment, decree or final order enjoining the
entities from future violations of, or prohibiting activities subject to,
federal or state securities laws, or a finding of any violation of federal or
state securities laws. In addition, neither the executive officers, directors,
or controlling persons of Mergerco, RAG or UAC, nor the executive officers or
directors of such controlling persons, was either convicted in a criminal
proceeding (excluding traffic violations and similar misdemeanors) or a party to
any judicial or administrative proceeding during the past five years that
resulted in a judgment, decree or final order enjoining the person from future
violations of, or prohibiting activities subject to, federal or state securities
laws, or a finding of any violation of federal or state securities laws.
(c) Business and Background of Natural Persons.
(1) The information required by this item is set forth under the captions
"Directors and Management" and "The Parties" of the Going Private Statement and
is incorporated by reference pursuant to General Instruction F to Schedule
13E-3.
(2) The information required by this item is set forth under the captions
"Directors and Management" and "The Parties" of the Going Private Statement and
is incorporated by reference pursuant to General Instruction F to Schedule
13E-3.
(3) Mr. Catsimatidis was not convicted in a criminal proceeding (excluding
traffic violations and similar misdemeanors) during the past five years.
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(4) Mr. Catsimatidis was not a party to any judicial or administrative
proceeding during the past five years that resulted in a judgment, decree or
final order enjoining the person from future violations of, or prohibiting
activities subject to, federal or state securities laws, or a finding of any
violation of federal or state securities laws.
(5) Mr. Catsimatidis is a citizen of the United States.
ITEM 4. TERMS OF THE TRANSACTION.
(a) Material Terms. The information set forth under the captions "Special
Factors" and "The Plan of Merger" of the Going Private Statement are
incorporated by reference pursuant to General Instruction F to Schedule 13E-3.
(c) Different Terms. The information set forth under the caption "The Plan of
Merger" of the Going Private Statement is incorporated by reference pursuant to
General Instruction F to Schedule 13E-3.
(d) Appraisal Rights. The information set forth under the caption "Dissenters'
Rights of Appraisal" of the Going Private Statement is incorporated by reference
pursuant to General Instruction F to Schedule 13E-3.
(e) Provisions for Unaffiliated Security Holders. None.
(f) Eligibility for Listing or Trading. Not applicable.
ITEM 5. PAST CONTACTS, TRANSACTIONS, NEGOTIATIONS AND AGREEMENTS.
(a) Transactions. The information set forth under the caption "Financial And
Other Information" of the Going Private Statement is incorporated by reference
pursuant to General Instruction F to Schedule 13E-3.
(b) Significant Corporate Events. The information set forth under the captions
"Special Factors" and "Directors and Management" of the Going Private Statement
is also incorporated by reference pursuant to General Instruction F to Schedule
13E-3.
(c) Negotiations or Contacts. None.
(e) Agreements Involving the Subject Company's Securities. There are no such
agreements, other than with respect to contributions of Common Stock by RAG, UAC
and Mr. Catsimatidis to Mergerco in exchange for common stock of Mergerco.
ITEM 6. PURPOSES OF THE TRANSACTION AND PLANS OR PROPOSALS.
(b) Use of Securities Acquired. The information set forth under the captions
"Special Factors" and "Plan of Merger" of the Going Private Statement are
incorporated by reference pursuant to General Instruction F to Schedule 13E-3.
(c) (1)-(8). The information set forth under the caption "Special Factors" of
the Going Private Statement are incorporated by reference pursuant to General
Instruction F to Schedule 13E-3.
ITEM 7. PURPOSES, ALTERNATIVES, REASONS AND EFFECTS.
(a) Purposes of the Merger. The information set forth under the captions
"Fairness of the Merger," "Benefits and Other Impacts of the Merger," and
"Catsimatidis Group's Purpose and Reasons for the Merger" of the Going Private
Statement is incorporated by reference pursuant to General Instruction F to
Schedule 13E-3.
(b) Alternatives. The information set forth under the captions "Background of
the Merger" and "Fairness of the Merger" of the Going Private Statement is
incorporated by reference pursuant to General Instruction F to Schedule 13E-3.
(c) Reasons. The information set forth under the captions "Benefits and Other
Impacts of the Merger", "Background of the Merger" and "Catsimatidis Group's
Purpose and Reasons for the Merger" of the Going Private Statement is
incorporated by reference pursuant to General Instruction F to Schedule 13E-3.
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(d) Effects. The information set forth under the captions "Certain Effects of
the Merger," "Benefits and Other Impacts of the Merger" and "Material Federal
Income Tax Consequences" of the Going Private Statement are incorporated by
reference pursuant to General Instruction F to Schedule 13E-3.
ITEM 8. FAIRNESS OF THE MERGER.
(a) Fairness. The information set forth under the caption "Fairness of the
Merger" of the Going Private Statement is incorporated by reference pursuant to
General Instruction F to Schedule 13E-3.
(b) Factors Considered in Determining Fairness. The information set forth under
the caption "Fairness of the Merger" of the Going Private Statement is
incorporated by reference pursuant to General Instruction F to Schedule 13E-3.
(c) Approval of Security Holders. No approval of the security holders is
required in connection with the Merger. The information set forth under the
caption "Fairness of the Merger" of the Going Private Statement is incorporated
by reference pursuant to General Instruction F to Schedule 13E-3.
(d) Unaffiliated Representative. The information set forth under the caption
"Fairness of the Merger" of the Going Private Statement is incorporated by
reference pursuant to General Instruction F to Schedule 13E-3.
(e) Approval of Directors. The information set forth under the caption "Fairness
of the Merger" of the Going Private Statement is incorporated by reference
pursuant to General Instruction F to Schedule 13E-3.
(f) Other Offers. Not Applicable.
ITEM 9. REPORTS, OPINIONS, APPRAISALS AND NEGOTIATIONS.
(a) Report, Opinion, or Appraisal. The information set forth under the caption
"Fairness of the Merger" of the Going Private Statement is incorporated by
reference pursuant to General Instruction F to Schedule 13E-3.
(b) Preparer and Summary of the Report, Opinion, or Appraisal. The information
set forth under the caption "Fairness of the Merger" of the Going Private
Statement is incorporated by reference pursuant to General Instruction F to
Schedule 13E-3.
(c) Availability of Documents. The information set forth under the caption
"Financial and Other Information" of the Going Private Statement is incorporated
by reference pursuant to General Instruction F to Schedule 13E-3.
ITEM 10. SOURCE AND AMOUNTS OF FUNDS OR OTHER CONSIDERATION.
(a) Source of Funds. The information set forth under the caption "Financing of
the Merger" of the Going Private Statement is incorporated by reference pursuant
to General Instruction F to Schedule 13E-3.
(b) Conditions. The information set forth under the caption "Conditions" of the
Going Private Statement is incorporated by reference pursuant to General
Instruction F to Schedule 13E-3.
(c) Expenses. The information set forth under the caption "Certain Effects of
the Merger" of the Going Private Statement is incorporated by reference pursuant
to General Instruction F to Schedule 13E-3.(1)
(d) Borrowed Funds. The information set forth under the caption "Financing of
the Merger" of the Going Private Statement is incorporated by reference pursuant
to General Instruction F to Schedule 13E-3.
-------------------------
(1) Gristede's to provide information. Item 1007 of Regulation M-A requires
Schedule 13E-3 to "furnish a reasonably itemized statement of all expenses
incurred or estimated to be incurred in connection with the transaction
including, not limited to, filing, legal, accounting and appraisal fees,
solicitation expenses and printing costs and state whether or not the subject
company has paid or will be responsible for paying any or all expenses."
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ITEM 11. INTEREST IN SECURITIES OF THE SUBJECT COMPANY.
(a) Securities Ownership. The information set forth under the caption "Security
Ownership of Certain Beneficial Owners and Management" of the Going Private
Statement is incorporated by reference pursuant to General Instruction F to
Schedule 13E-3.
(b) Securities Transactions. None.
ITEM 12. THE SOLICITATION OR RECOMMENDATION.
(d) Intent to Tender or Vote in a Going-Private Transaction. The information set
forth under the captions "Shares and Stock Options" and "Security Ownership of
Certain Beneficial Owners and Management" of the Going Private Statement is
incorporated by reference pursuant to General Instruction F to Schedule 13E-3.
(e) Recommendations of Others. The information set forth under the caption
"Fairness of the Merger" of the Going Private Statement is incorporated by
reference pursuant to General Instruction F to Schedule 13E-3.
ITEM 13. FINANCIAL STATEMENTS.
(a) Financial Information.
(1) The information set forth under the caption "Financial and Other
Information" of the Going Private Statement is incorporated by reference
pursuant to General Instruction F to Schedule 13E-3.
(2) The information set forth under the caption "Financial and Other
Information" of the Going Private Statement is incorporated by reference
pursuant to General Instruction F to Schedule 13E-3.
(3) The ratio of earnings to fixed charges for the two most recent fiscal years
ending November 30, 2003 and December 1, 2002 and the interim period ended May
30, 2004, were below 1:1 coverage, as Gristede's incurred net losses after taxes
of ($11,544,963), ($886,407), and ($1,591,866), respectively.
(4) The book value per share as of May 30, 2004 was $0.07.
(b) Pro Forma Information. No pro forma data giving effect to the proposed
Merger is provided because the Company does not believe such information is
material to stockholders in evaluating the proposed Merger since (1) the
proposed merger consideration is all cash and (2) if the proposed Merger is
completed, the Common Stock would cease to be publicly traded.
ITEM 14. PERSONS/ASSETS, RETAINED, EMPLOYED, COMPENSATED OR USED.
(a) Solicitations or Recommendations. The information set forth under the
caption "Fairness of the Merger" of the Going Private Statement is incorporated
by reference pursuant to General Instruction F to Schedule 13E-3.
(b) Employees and Corporate Assets. The information set forth under the captions
"Fees and Expenses" and "Financing of the Merger" of the Going Private Statement
is incorporated by reference pursuant to General Instruction F to Schedule
13E-3.
ITEM 15. ADDITIONAL INFORMATION.
(a) Agreements, Regulatory Requirements and Legal Proceedings.
(b) Other Material Information. None.
ITEM 16. EXHIBITS.
(a) Disclosure Materials.
(1) Not applicable.
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(2) The information set forth under the caption "Special Factors" and Exhibit G
of the Going Private Statement is incorporated by reference pursuant to General
Instruction F to Schedule 13E-3.
(3) Going Private Statement dated October ___, 2004. *
(4) Not applicable.
(5) Fairness Opinion Valuation Analyses dated July 1, 2004 prepared by Brooks,
Houghton & Securities, Inc.
(b) The information set forth under Exhibit F of the Going Private Statement is
incorporated by reference pursuant to General Instruction F to Schedule 13E-3.
(c) The information set forth under the caption "Special Factors" and Exhibit G
of the Going Private Statement is incorporated by reference pursuant to General
Instruction F to Schedule 13E-3.
(d) Contribution Agreement, dated as of September 10, 2004, by and among John A.
Catsimatidis, Red Apple Group, Inc., United Acquisition Corp. and Gristede's
Acquisition Corp.+
(e) The information set forth under the caption "Dissenters' Rights of
Appraisal" and in Exhibit B of the Going Private Statement is incorporated by
reference pursuant to General Instruction F to Schedule 13E-3.
(f) None
--------------------------
* Filed herewith
+ Previously filed.
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SIGNATURES
After due inquiry and to the best of my knowledge and belief, I certify that the
information set forth in this statement is true, complete and correct.
GRISTEDE'S FOODS, INC.,
A DELAWARE CORPORATION
By: /s/ John A. Catsimatidis
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John A. Catsimatidis
President
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Date: October 20, 2004
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GRISTEDE'S ACQUISITION CORP.,
a Delaware corporation
By: /s/ John A. Catsimatidis
--------------------------------------------
John A. Catsimatidis
President
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Date: October 20, 2004
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JOHN A. CATSIMATIDIS,
an individual
By: /s/ John A. Catsimatidis
--------------------------------------------
John A. Catsimatidis
President
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Date: October 20, 2004
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RED APPLE GROUP, INC.,
a Delaware corporation
By: /s/ John A. Catsimatidis
--------------------------------------------
John A. Catsimatidis
President
--------------------------------------------
Date: October 20, 2004
--------------------------------------------
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UNITED ACQUISITION CORP.,
a Delaware corporation
By: /s/ John A. Catsimatidis
--------------------------------------------
John A. Catsimatidis
President
--------------------------------------------
Date: October 20, 2004
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