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As Of Filer Filing As/For/On Docs:Pgs Issuer Agent 5/24/07 Great Atlantic & Pacific Tea..Inc S-4 8:396 Command Financi..Corp/FA
Document/Exhibit Description Pages Size
1: S-4 Registration of Securities Issued in a HTML 2,465K
Business-Combination Transaction
2: EX-5.1 Opinion re: Legality HTML 14K
3: EX-23.2 Consent of Experts or Counsel HTML 6K
4: EX-23.3 Consent of Experts or Counsel HTML 6K
5: EX-99.2 Miscellaneous Exhibit HTML 7K
6: EX-99.3 Miscellaneous Exhibit HTML 5K
7: EX-99.4 Miscellaneous Exhibit HTML 29K
8: EX-99.5 Miscellaneous Exhibit HTML 16K
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FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
The Great Atlantic & Pacific Tea Company, Inc.
(Exact name of registrant as specified in its charter)
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Maryland |
5411 |
13-1890974 |
Two Paragon
Drive
Montvale, New Jersey 07645
(201) 573-9700
(Address, including zip code, and telephone number, including area code, of
registrant’s principal executive offices)
Allan
Richards
Senior Vice President, Human Resources, Labor Relations, Legal Services &
Secretary
The Great Atlantic & Pacific Tea Company, Inc.
Two Paragon Drive
Montvale, New Jersey 07645
(201) 573-9700
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
With copies to:
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Kenneth W. Orce, Esq. |
Sarkis Jebejian, Esq. |
John M. Newell, Esq. |
Approximate date of commencement of proposed sale of the securities to the public: As soon as practicable after this Registration Statement is declared effective and upon completion of the merger described in the enclosed joint proxy statement/prospectus.
If the securities being registered on this form are being offered in connection with the formation of a holding company and there is compliance with General Instruction G, please check the following box. o
If this form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. o
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 earlier effective registration statement for the same offering. o
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Title of each class of |
Amount to be |
Proposed maximum |
Proposed maximum |
Amount of |
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Common Stock, $1.00 par value per share |
6,780,537(1) |
Not Applicable(2) |
$182,550,913.48(3) |
$5,604.31 |
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(1) |
Represents the maximum number of shares of common stock of The Great Atlantic & Pacific Tea Company, Inc. (“A&P”) expected to be issued upon the completion of the merger of Sand Merger Corp., a wholly owned subsidiary of A&P, (“Merger Sub”) with and into Pathmark Stores, Inc. (“Pathmark”), based on the number of shares of Pathmark common stock outstanding (other than any shares held by A&P, Pathmark or Sand Merger Corp. to be canceled prior to the completion of the merger), or reserved for issuance under various plans, as of May 22, 2007, (collectively, the “Pathmark Outstanding Shares”) and the exchange of each share of Pathmark common stock for 0.12963 shares of A&P common stock. |
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(2) |
Omitted in reliance on Rule 457(o) under the Securities Act of 1933, as amended. |
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(3) |
Estimated solely for the purpose of calculating the registration fee and computed pursuant to Rules 457(f) and 457(c) under the Securities Act of 1933, as amended, based on the market value of the Pathmark Stores, Inc. common stock to be exchanged in the merger, as the product of (1) $12.49, the average of the high and low sale prices of Pathmark common stock, as quoted on the NASDAQ Global Market, on May 22, 2007, and (2) 52,306,852, which is the number of Pathmark Outstanding Shares. Pursuant to Rule 457(f) of the Securities Act, the $470,761,668.00 of cash consideration to be paid by A&P in exchange for Pathmark common stock to be exchanged in the merger to the holders of Pathmark common stock in the merger (which equals $9.00 multiplied by 52,306,852, which is the number of Pathmark Outstanding Shares) has been deducted from the value of the shares of Pathmark common stock to be exchanged in the merger. |
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 this Registration Statement shall become effective on such date as the Commission, acting pursuant to said Section 8(a), may determine.
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PRELIMINARY — SUBJECT TO COMPLETON — DATED MAY [ ], 2007
TO THE STOCKHOLDERS OF
THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC. AND
PATHMARK STORES, INC.
YOUR VOTE IS VERY IMPORTANT
On March 4, 2007, Pathmark Stores, Inc. (“Pathmark”), The Great Atlantic & Pacific Tea Company, Inc. (“A&P”) and Sand Merger Corp., a wholly owned subsidiary of A&P, entered into a merger agreement, pursuant to which A&P will acquire Pathmark and its subsidiaries through a merger. Upon completion of the merger, Pathmark stockholders will be entitled to receive, without interest, $9.00 in cash and 0.12963 shares of A&P common stock for each share of common stock of Pathmark.
Upon completion of the merger, we estimate that Pathmark’s former stockholders will own approximately 14% of the then-outstanding common stock of A&P on a fully-diluted basis. A&P’s stockholders will continue to own their existing shares, which will not be affected by the merger.
The merger cannot be completed unless (i) Pathmark stockholders approve and adopt the merger agreement and the transactions contemplated thereby, including the merger, and (ii) A&P stockholders approve both the issuance of A&P’s common stock pursuant to the merger agreement and the amendment to the A&P charter to exempt the transactions contemplated by the merger agreement and the agreements entered into in connection therewith from the preemptive rights provisions of the A&P charter. We are each holding a special meeting of stockholders in order to obtain the stockholder approvals necessary to complete the merger. The times, dates and places of the special meetings to consider and vote upon the proposals are as follows:
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For A&P Stockholders: |
For Pathmark Stockholders: |
After careful consideration, each of our boards of directors has determined that the merger agreement and the transactions contemplated thereby are fair to and in the best interests of our respective stockholders.
Accordingly, the A&P board of directors unanimously recommends that A&P stockholders vote “FOR” the proposal to approve the issuance of shares of A&P common stock pursuant to the merger agreement and “FOR” the proposal to approve the amendment to A&P’s charter regarding preemptive rights.
The Pathmark board of directors unanimously recommends that the Pathmark stockholders vote “FOR” the proposal to approve and adopt the merger agreement and the transactions contemplated thereby, including the merger.
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Additionally, the effectiveness of each of the proposal to approve the issuance of A&P common stock in connection with the merger and the proposal to approve the amendment to the A&P charter is conditioned on approval of the other, which means that neither proposal will be effective unless both are approved. We cannot complete the merger unless both the A&P proposals are approved by the A&P stockholders, and the proposal to adopt the merger agreement and the transactions contemplated thereby, including the merger, is approved by Pathmark’s stockholders.
The affirmative vote of a majority of the votes cast by holders of A&P common stock at the special meeting is required to approve the issuance of A&P common stock in connection with the merger, provided that the total votes cast must represent a majority of the outstanding shares of A&P common stock entitled to vote on the matter. Tengelmann Warenhandelsgesellschaft KG (“Tengelmann”) has agreed to vote all of its shares of A&P common stock, approximately 53% of the outstanding A&P common stock, in favor of the issuance of A&P common stock in the merger and the amendment to the A&P charter. This means that the approval of the issuance of the A&P common stock pursuant to the merger agreement is assured. The affirmative vote of two-thirds of the outstanding shares of A&P common stock entitled to vote on the matter is required to approve and adopt the amendment to the A&P charter to exempt the transactions contemplated by the merger agreement and the agreements entered into in connection therewith from the preemptive rights provisions of the A&P charter.
The affirmative vote of a majority of the outstanding shares of Pathmark common stock is required to adopt the merger agreement and approve the transactions contemplated thereby, including the merger.
The joint proxy statement/prospectus attached to this letter provides you with information about A&P, Pathmark, the proposed merger and the special meetings of each of our companies’ stockholders. In particular, please see the section titled “Risk Factors” beginning on page 27 of the accompanying joint proxy statement/prospectus which contains a description of the risks that you should consider in evaluating the proposals.You may also obtain more information about A&P and Pathmark from documents each party has filed with the Securities and Exchange Commission (the “SEC”). Shares of A&P common stock are listed on the New York Stock Exchange under the symbol “GAP.” Shares of Pathmark common stock are listed on the NASDAQ Global Market under the symbol “PTMK.”
Your vote is important. Accordingly, you are requested to vote your shares by promptly completing, signing and dating the enclosed proxy card relating to your shares and returning it in the appropriate envelope provided, or in the case of A&P stockholders, use the Internet or telephone proxy authorization options detailed on the proxy card, whether or not you plan to attend the respective special meeting. Alternatively, if your shares are held in “street name” by a bank, brokerage firm or nominee you should follow the instructions of your bank, brokerage firm or nominee, regarding the voting of your shares and if your bank, brokerage firm or nominee makes the following options available you may be able to grant a proxy to have your shares voted over the Internet or by telephone. Submitting a proxy by any of these methods available to you will ensure that your proxy can be voted at the respective special meeting even if you are not there in person.
Thank you for your cooperation and continued support.
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Allan Richards |
John T. Standley |
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Neither the SEC nor any state securities commission has approved or disapproved the securities to be issued in connection with the merger or determined if the accompanying joint proxy statement/prospectus is accurate or complete. Any representation to the contrary is a criminal offense.
Information contained in this document is subject to completion or amendment. A registration statement relating to these securities has been filed with the SEC. These securities may not be sold nor may offers to buy be accepted prior to the time the registration statement becomes effective. This joint proxy statement/prospectus shall not constitute an offer to sell or the solicitation of an offer to buy nor shall there be any sale of these securities in any state in which such offer, solicitation or sale would be unlawful prior to registration or qualification under securities laws of such state.
THIS JOINT PROXY STATEMENT/PROSPECTUS IS DATED [ ], 2007, AND IS BEING FIRST MAILED TO STOCKHOLDERS OF A&P AND PATHMARK ON OR ABOUT [ ], 2007.
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THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC.
2 Paragon Drive
Montvale, New Jersey 07645
NOTICE OF SPECIAL MEETING OF STOCKHOLDERS
TO BE HELD ON
[ ], 2007
To the stockholders of The Great Atlantic & Pacific Tea Company, Inc.:
We will hold a special meeting of stockholders of The Great Atlantic & Pacific Tea Company, Inc., a Maryland corporation (“A&P”), at The Woodcliff Lake Hilton, 200 Tice Boulevard, Woodcliff Lake, New Jersey, on [ ], [ ], 2007, at [ ] a.m., Eastern Daylight Time, for the following purposes:
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to consider and vote on a proposal to approve the issuance of A&P common stock pursuant to the Agreement and Plan of Merger, dated as of March 4, 2007, by and among A&P, Sand Merger Corp. (“Merger Sub”) (a wholly owned subsidiary of A&P established for the purpose of effecting the merger) and Pathmark Stores, Inc. (“Pathmark”), as amended from time to time, which provides for the merger of Merger Sub with and into Pathmark, with Pathmark as the surviving corporation; |
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to consider and vote on a proposal to approve an amendment to the A&P charter in the form attached to the accompanying joint proxy statement/prospectus as Annex H and incorporated herein by reference to exempt the transactions contemplated by the merger agreement and the agreements entered into in connection therewith from the preemptive rights provisions of Article VII of the A&P charter; and |
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to transact any other business as may properly come before the meeting and any adjournments or postponements thereof. |
The A&P board of directors has fixed [ ], 2007, as the record date for this meeting. Only stockholders of record at the close of business on that date are entitled to receive notice and to vote at the meeting or at any adjournment or postponement thereof.
The effectiveness of each of Proposal 1 and 2 is conditioned on approval of the other, which means that neither proposal will have any effect unless both are approved. We cannot complete the merger unless Proposals 1 and 2 are approved by the A&P stockholders. The affirmative vote of a majority of the votes cast by holders of A&P common stock at the special meeting is required to approve Proposal 1, provided that the total votes cast must represent a majority of the outstanding shares of A&P common stock entitled to vote on the proposal. The affirmative vote of two-thirds of the outstanding shares of A&P common stock entitled to vote on the matter is required to approve Proposal 2.
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Whether or not you plan to attend the meeting, please either complete, sign and return the accompanying proxy card to A&P in the enclosed envelope, which requires no postage if mailed in the United States, or use the Internet or telephone proxy authorization options detailed on the proxy card. If you hold your shares through a bank, brokerage firm or nominee, you should follow the instructions of your bank, brokerage firm or nominee regarding voting your shares.
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By Order of the Board of Directors |
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Allan Richards |
[ ], 2007
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You are cordially invited to attend the meeting. Whether or not you plan to do so, your vote is important. Please promptly submit your proxy by mail, telephone or the Internet. |
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PATHMARK STORES, INC.
200 MILIK STREET
CARTERET, NEW JERSEY 07008
NOTICE OF SPECIAL MEETING OF STOCKHOLDERS
TO BE HELD ON [ ],
2007
To the stockholders of Pathmark Stores, Inc.:
A special meeting of stockholders of Pathmark Stores, Inc. (“Pathmark”), a Delaware corporation, will be held on [______], 2007, at [___] a.m., Eastern Daylight Time, at Pathmark’s corporate headquarters, 200 Milik Street, Carteret, New Jersey 07008, for the following purposes:
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to consider and vote upon a proposal to approve and adopt the Agreement and Plan of Merger, dated March 4, 2007, by and among Pathmark, The Great Atlantic & Pacific Tea Company, Inc. (“A&P”) and Sand Merger Corp. (“Merger Sub”), and the transactions contemplated by the merger agreement, as amended from time to time, including the merger, pursuant to which Merger Sub would merge with and into Pathmark and each outstanding share of Pathmark common stock would be converted into the right to receive, without interest, $9.00 in cash and 0.12963 shares of A&P common stock; and |
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to consider and vote on such other matters as may properly come before the special meeting or any adjournment or postponement thereof. |
Only stockholders of record as of the close of business on [_______], 2007, are entitled to notice of and to vote at the special meeting and at any adjournment or postponement thereof. A list of these stockholders will be available for inspection by stockholders of record during regular business hours at Pathmark’s corporate headquarters, 200 Milik Street, Carteret, New Jersey 07008, for ten days prior to the date of the special meeting. All stockholders of record are cordially invited to attend the special meeting in person. Your vote is important, regardless of the number of shares of Pathmark common stock that you own. The adoption of the merger agreement requires the approval of the holders of a majority of the outstanding shares of our common stock entitled to vote on the matter. The Pathmark board of directors unanimously recommends that the Pathmark stockholders vote “FOR” the proposal to approve and adopt the merger agreement and the transactions contemplated thereby, including the merger.
Even if you plan to attend the meeting in person, we request that you complete, sign, date and return the enclosed proxy card and thus ensure that your shares will be represented at the special meeting if you become unable to attend. If you sign, date and return your proxy card without indicating how you wish to vote, the shares represented by your proxy will be voted “FOR” the approval and adoption of the merger agreement and transactions contemplated thereby, including the merger, and will be voted in accordance with the recommendations of our board of directors on any other matters properly brought be-
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fore the meeting for a vote. If you hold your shares through a bank, brokerage firm or nominee, you should follow the instructions of your bank, brokerage firm or nominee regarding voting your shares.
Whether you attend the meeting or not, you may revoke a proxy at any time before it is voted at the meeting. You may do so by executing and returning a proxy card dated later than the previous one or by attending the special meeting and voting in person. Simply attending the meeting, however, will not revoke your proxy. If you hold your shares through a bank, brokerage firm or nominee, you should follow the instructions of your bank, brokerage firm or nominee regarding revocation of proxies. If your bank, brokerage firm or nominee allows you to submit a proxy by telephone or the Internet, you may be able to change your vote by submitting a subsequent proxy by telephone or the Internet.
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By Order of the Board of Directors, |
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Marc A. Strassler |
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Senior Vice President, Secretary and General Counsel |
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References to Additional Information
The accompanying joint proxy statement/prospectus incorporates by reference important business and financial information about A&P and Pathmark from documents that are not included in or delivered with this joint proxy statement/prospectus. This information is available to you without charge upon your written or oral request. You can obtain the documents incorporated by reference in the accompanying joint proxy statement/prospectus by requesting them in writing or by telephone from the appropriate company at the following addresses and telephone numbers:
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The Great Atlantic & Pacific Tea |
Pathmark Stores, Inc. |
If you would like to request documents, please do so by [ ], 2007 in order to receive them before the special meetings.
See “Where You Can Find More Information” beginning on page 186.
About This Document
This document, which forms part of a registration statement on Form S-4 filed with the SEC by A&P, constitutes a prospectus of A&P under Section 5 of the Securities Act of 1933, as amended, and the rules thereunder, with respect to the shares of A&P common stock to be issued to the holders of Pathmark common stock in connection with the merger. This document also constitutes (i) a proxy statement under Section 14(a) of the Securities Exchange Act of 1934, as amended, and the rules thereunder; (ii) a notice of meeting with respect to A&P’s special meeting of stockholders, at which A&P stockholders will consider and vote upon (a) the issuance of shares of A&P common stock to Pathmark stockholders on the terms and conditions set forth in the merger agreement and (b) the amendment to the A&P charter to exempt the transactions contemplated by the merger agreement and the agreements entered into in connection therewith from the preemptive rights provisions of the A&P charter; and (iii) a notice of meeting with respect to Pathmark’s special meeting of stockholders, at which Pathmark stockholders will consider and vote upon adoption of the merger agreement and the transactions contemplated thereby, including the merger.
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QUESTIONS AND ANSWERS ABOUT VOTING PROCEDURES FOR THE SPECIAL MEETING |
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Pathmark’s Reasons for the Merger; Recommendation of the Pathmark Board of Directors |
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A&P’s Reasons for the Merger; Recommendation of the A&P Board of Directors |
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Certain Material United States Federal Income Tax Consequences |
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Treatment of Pathmark Stock Options, Warrants and Other Equity-Based Awards |
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Exchange of Pathmark Stock Certificates for A&P Stock Certificates |
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UNAUDITED PRO FORMA CONDENSED COMBINED FINANCIAL INFORMATION |
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Annex A |
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Agreement and Plan of Merger |
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Annex B |
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Yucaipa Stockholder Agreement |
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Annex C |
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Yucaipa Voting Agreement |
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Annex D |
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Tengelmann Stockholder Agreement |
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Annex E |
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Tengelmann Voting Agreement |
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Annex F |
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Opinion of J.P. Morgan Securities Inc. |
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Annex G |
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Opinion of Citigroup Global Markets Inc. |
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Annex H |
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Form of Articles of Amendment to Certificate of Incorporation of The Great Atlantic & Pacific Tea Company, Inc. |
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Annex I |
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Form of Amendment to the By-Laws of The Great Atlantic & Pacific Tea Company, Inc. |
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Annex J |
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Section 262 of the General Corporation Law of the State of Delaware |
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QUESTIONS AND
ANSWERS ABOUT VOTING PROCEDURES
FOR THE SPECIAL MEETING
The questions and answers below highlight only selected procedural information from this document. They do not contain all of the information that may be important to you. You should read carefully the entire document and the additional documents incorporated by reference into this document because they contain important information.
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Q: |
What are the proposals upon which I am being asked to vote? |
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A&P Stockholders. Stockholders of The Great Atlantic & Pacific Tea Company, Inc. (“A&P”) are being asked to vote (1) to approve the issuance of shares of A&P common stock pursuant to the Agreement and Plan of Merger, dated March 4, 2007 (the “merger agreement”), by and among Pathmark Stores, Inc. (“Pathmark”), A&P and Sand Merger Corp. (“Merger Sub”), under which A&P will acquire Pathmark and its subsidiaries through the merger of Merger Sub with and into Pathmark (the “merger”), and (2) to approve an amendment to the A&P charter to exempt the transactions contemplated by the merger agreement and the agreements entered into in connection therewith from the preemptive rights provisions of the A&P charter. |
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Pathmark Stockholders. Stockholders of Pathmark are being asked to vote to approve and adopt the merger agreement and the transactions contemplated thereby, including the merger. After the merger, Pathmark will be the surviving corporation and will be a wholly owned subsidiary of A&P. |
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What vote of Pathmark stockholders is required for adoption of the merger agreement? |
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Adoption of the merger agreement and the transactions contemplated thereby, including the merger, requires the affirmative vote of a majority of the outstanding shares of Pathmark common stock entitled to vote. Therefore, if a Pathmark stockholder abstains or fails to vote, it will have the same effect as voting against the merger agreement. You are entitled to vote on the proposal to approve and adopt the merger agreement if you held Pathmark common stock at the close of business on the Pathmark record date, which is [ ], 2007. On that date, [ ] shares of Pathmark common stock were outstanding and entitled to vote. |
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The largest stockholders of Pathmark, Yucaipa Corporate Initiatives Fund I, LP, Yucaipa American Alliance (Parallel) Fund I, LP and Yucaipa American Alliance Fund I, LP, which we refer to collectively as the “Yucaipa Investors,” have agreed to vote the shares of Pathmark common stock that they own as of the Pathmark record date in favor of adoption of the merger agreement and the transactions contemplated thereby, including the merger, provided that these voting obligations do not apply to any shares owned by the Yucaipa Investors in excess of 33% of the outstanding Pathmark common stock. The remaining shares owned by the Yucaipa Investors may be voted in the Yucaipa Investors’ discretion, although the Yucaipa Investors have expressed their present intention to vote all of the Pathmark shares they own (approximately 38% of the outstanding Pathmark common stock as of the Pathmark record date) in favor of the adoption of the merger agreement. |
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What vote of A&P stockholders is required for approval of the proposal to issue shares of A&P common stock pursuant to the merger agreement? |
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The proposal to issue shares of A&P common stock pursuant to the merger agreement must be approved by a majority of the votes cast by the holders of A&P common stock, provided that the |
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total votes cast on the proposal must represent at least a majority of the outstanding shares of A&P common stock entitled to vote on the proposal. Because approval is based on the affirmative vote of a majority of votes cast, provided that the total votes cast on the proposal represent at least a majority of all shares entitled to vote on the proposal, an A&P stockholder’s failure to vote will not affect the outcome of the vote to approve the issuance of A&P common stock in connection with the merger, assuming more than a majority of the outstanding shares are voted on the proposal. Because the New York Stock Exchange (the “NYSE”) treats abstentions as votes cast with respect to the proposal to issue shares of A&P common stock pursuant to the merger agreement, an abstention will have the same effect as a vote “AGAINST” the proposal. A&P stockholders are entitled to vote on the proposal to approve the issuance of A&P common stock if they held A&P common stock at the close of business on the A&P record date, which is [ ], 2007. On the A&P record date, [ ] shares of A&P common stock were outstanding and entitled to vote. |
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Tengelmann Warenhandelsgesellschaft KG (“Tengelmann”) has agreed to vote all of its shares of A&P common stock, constituting approximately 53% of the outstanding A&P common stock as of the A&P record date, in favor of the issuance of A&P common stock in the merger. This means that the approval of the issuance of the A&P common stock pursuant to the merger agreement is assured. |
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Q: |
What vote of A&P stockholders is required for approval of the proposal to amend the A&P charter to exempt the transactions contemplated by the merger agreement and the agreements entered into in connection therewith from the preemptive rights provisions of the A&P charter? |
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The affirmative vote of two-thirds of the outstanding shares of A&P common stock entitled to vote on the matter is required to approve the amendment to the A&P charter to exempt the transactions contemplated by the merger agreement and the agreements entered into in connection therewith from the preemptive rights provisions of the A&P charter. Therefore, if an A&P stockholder abstains or fails to vote, it will have the same effect as a vote against approval of the amendment to the A&P charter. A&P stockholders are entitled to vote on the proposal to approve the amendment to the A&P charter if they held A&P common stock at the close of business on the A&P record date. On the A&P record date, [ ] shares of A&P common stock were outstanding and entitled to vote. |
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Tengelmann has agreed to vote all of its shares of A&P common stock, approximately 53% of the outstanding A&P common stock as of the A&P record date, in favor of the issuance of A&P common stock in the merger and the amendment to the A&P charter. This means that the affirmative vote of an additional [ ] shares is necessary to approve the charter amendment. |
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What happens if the A&P stockholders vote to approve only one of the two A&P proposals? |
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We cannot complete the merger unless both of the A&P proposals are approved by the A&P stockholders. The effectiveness of each of the proposal to approve the issuance of A&P common stock in connection with the merger and the proposal to approve the amendment to the A&P charter is conditioned on approval of the other, which means that neither proposal will have any effect unless both are approved. |
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When do you expect the merger to be completed? |
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We expect to complete the merger after the Pathmark stockholders adopt the merger agreement and the transactions contemplated thereby, including the merger, at the special meeting, after the A&P stockholders approve the two proposals set forth above at the A&P special meeting, and after we receive all necessary regulatory approvals. We currently anticipate completing the merger in the second half of A&P’s 2007 fiscal year ending February 23, 2008. |
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If my shares are held in “street name” by a bank, brokerage firm or nominee, will they vote my shares for me? |
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A&P Stockholders. You should instruct your bank, brokerage firm or nominee to vote your shares, following the directions they provide. If you do not instruct your bank, brokerage firm or nominee, they will generally not have the discretion to vote your shares. Because the approval of the proposal to issue A&P common stock in connection with the merger requires an affirmative vote of a majority of the votes cast by holders of A&P common stock at the special meeting, the failure to vote your shares will not affect the outcome of the vote on the proposal to approve the issuance of A&P common stock in connection with the merger, provided that the total votes cast on the proposal represent at least a majority of all shares entitled to vote on the proposal. Because the approval of the proposal to amend the A&P charter requires an affirmative vote of two-thirds of the outstanding shares of A&P common stock, the failure to vote your shares will have the same effect as votes cast against the proposal to approve the amendment to the A&P charter. |
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Pathmark Stockholders. You should instruct your bank, brokerage firm or nominee to vote your shares, following the directions they provide. If you do not instruct your bank, brokerage firm or nominee, they will generally not have the discretion to vote your shares. Because the adoption of the merger agreement requires an affirmative vote of a majority of the outstanding shares of Pathmark common stock for approval, the failure to vote your shares will have the same effect as votes cast against adoption of the merger agreement. |
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What do I need to do now? |
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A&P Stockholders. After carefully reading and considering the information contained in this joint proxy statement/prospectus, please fill out and sign the proxy card, and then mail your signed proxy card in the enclosed prepaid envelope as soon as possible so that your shares may be voted at the A&P special meeting. Your signed proxy card will instruct the persons named on the card to vote your shares at the special meeting as you direct on the card. If you sign and send in your proxy card and do not indicate how you want your shares to be voted, your proxy will be voted “FOR” the approval of each of (1) the A&P proposal to approve the issuance of A&P common stock in connection with the merger and (2) the A&P proposal to approve an amendment to the A&P charter to exempt the transactions contemplated by the merger agreement and the agreements entered into in connection therewith from the preemptive rights provisions of the A&P charter. You may also authorize a proxy by telephone or through the Internet by following the instructions with your proxy card. If you hold your shares through a bank, brokerage firm or nominee, you should follow the instructions of your bank, brokerage firm or nominee regarding voting your shares. YOUR VOTE IS VERY IMPORTANT. |
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Pathmark Stockholders. After carefully reading and considering the information contained in this joint proxy statement/prospectus, please fill out and sign the proxy card, and then mail your signed proxy card in the enclosed prepaid envelope as soon as possible so that your shares may be voted at the Pathmark special meeting. Your signed proxy card will instruct the persons named |
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on the card to vote your shares at the Pathmark special meeting as you direct on the card. If you sign and send in your proxy card and do not indicate how you want your shares to be voted, your proxy will be voted “FOR” the adoption of the merger agreement and the transactions contemplated thereby, including the merger. If you hold shares through a bank, brokerage firm or nominee, you should follow the instructions of your bank, brokerage firm or nominee regarding voting your shares. YOUR VOTE IS VERY IMPORTANT. |
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May I change my vote after I have mailed my signed proxy card? |
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You may change your vote at any time before your proxy is voted at the A&P special meeting or the Pathmark special meeting, as the case may be. You can do this in one of the following ways. First, you can send a written notice stating that you want to revoke your proxy to: |
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In the case of A&P Stockholders: |
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Allan Richards |
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Senior Vice President, Human Resources, Labor Relations, Legal Services & Secretary |
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The Great Atlantic & Pacific Tea Company, Inc. |
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Two Paragon Drive |
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In the case of Pathmark Stockholders: |
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Marc A. Strassler |
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Senior Vice President, Secretary and General Counsel |
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Pathmark Stores, Inc. |
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200 Milik Street |
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Second, you can complete and submit a new later-dated proxy card. Third, you can attend the A&P special meeting or the Pathmark special meeting, as the case may be, and vote in person. Simply attending the meeting, however, will not revoke your proxy; you must vote at the meeting. Fourth, A&P stockholders, but not Pathmark stockholders, can authorize a proxy by telephone or through the Internet at a later time, but not later than 11:59 p.m. (Eastern Daylight Time) on [ ], 2007 or the day before the meeting date if the special meeting is adjourned or postponed. |
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If you have instructed a broker to vote your shares, you must follow directions received from your broker to change your vote. |
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Q: |
Should I send in my Pathmark stock certificates now? |
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No. After the merger is completed, Pathmark stockholders will receive written instructions for exchanging their stock certificates. |
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A&P stockholders will continue to hold their A&P stock certificates following the merger and are not required to take any action with respect to their A&P stock certificates. |
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Q: |
Who can help answer | |