<PAGE>
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------
FORM 10K
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[X] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the fiscal year ended December 31, 1999
OR
[_] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES ACT OF 1934
Commission file number 000-24713
EBS Pension, L.L.C.
(Exact name of registrant as specified in its charter)
Delaware 42-1466520
(State or other jurisdiction of (I.R.S. Employer Identification
incorporation) Number)
Norwest Bank Minnesota, N.A.
Sixth and Marquette: N9303-120
Minneapolis, Minnesota 55479
(Address of principal executive offices)
Registrant's telephone number, including area code (612) 667-4803
Securities registered pursuant to Section 12(b) of the Act:
None
Securities registered pursuant to Section 12(g) of the Act:
Class A Membership Units
(Title of class)
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to
such filing requirements for the past 90 days. Yes [X] No [_]
Indicate by check mark if disclosure of delinquent filers pursuant to Item
405 of Regulation S-K is not contained herein, and will not be contained, to
the best of registrant's knowledge, in definitive proxy or information
statements incorporated by reference in Part III of this Form 10-K or any
amendment to this Form 10-K. [X]
There is no aggregate market value of the registrant's Class A Membership
Units held by nonaffiliates of the registrant as of December 31, 1999. Book
value of the registrant's Class A Membership Units as of December 31, 1999 was
approximately $1.5 million.
There were 10,000,000 Class A Membership Units outstanding as of March 15,
2000.
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<PAGE>
PART I
Item 1--Business
Unless otherwise noted, references to the "Company" shall mean EBS Pension,
L.L.C., a Delaware limited liability company.
Background
On September 9, 1997, the United States Bankruptcy Court for the District
of Delaware (the "Bankruptcy Court") entered an order in accordance with
section 1129 of the Bankruptcy Code, 11 U.S.C. (S)(S) 101-1330, et seq., (the
"Bankruptcy Code") confirming the Amended Joint Plan of Reorganization Under
Chapter 11 of the Bankruptcy Code (the "Plan") filed by Edison Brothers
Stores, Inc. ("Edison") and its affiliated debtors in possession (collectively
with Edison, the "Debtors"). The Plan became effective on September 26, 1997
(the "Effective Date").
The Company was established pursuant to the Plan and the EBS Pension,
L.L.C. Members Agreement (the "Members Agreement"). Under the Plan, each
holder of an Allowed General Unsecured Claim (as defined in the Plan) against
Edison was entitled to receive a distribution on account of such claims, which
distribution included, among other things, the holder's pro rata share of
Class A Membership Units in the Company. The initial distribution date under
the Plan occurred on or about December 12, 1997. Accordingly, in late December
of 1997, holders of Allowed General Unsecured Claims began receiving
membership certificates evidencing their ownership of Class A Membership Units
in the Company. As of December 31, 1998 and December 31, 1999 there were
10,000,000 Class A Membership Units and 0 Class B Membership Units of the
Company issued and outstanding.
The Plan further provided for the Debtors' transfer to the Company of their
right to receive the Pension Plan Proceeds, which the Plan defines as the cash
proceeds (the "Pension Plan Proceeds") to be received by the Debtors as a
result of the termination of the Edison Brothers Stores, Inc. Pension Plan,
(the "Pension Plan"), net of (a) the Pension Plan assets transferred to a
qualified replacement pension plan; (b) all costs, fees and expenses
(collectively, the "Pension Plan Termination Costs") relating to termination
of the Pension Plan and establishment of the replacement plan; and (c) all
applicable taxes incurred, or for which a reserve (the "Pension Plan Tax
Reserve") is established by Edison, in connection with termination of the
Pension Plan. The Pension Plan assets are the residual assets from the Pension
Plan. The Pension Plan was created for the purpose of providing pension
benefits to the employees of Edison. The Pension Plan was terminated by Edison
pursuant to an order of the Bankruptcy Court. Pursuant to the Plan, upon
termination of the Pension Plan, after (1) the liabilities of the Plan were
paid, (2) the required excise taxes were paid and the Pension Plan Tax Reserve
was established, (3) a replacement pension plan for the employees of Edison
was funded, and (4) the Pension Plan Termination Costs were paid, the residual
assets, i.e., the Pension Plan Proceeds, were distributed to the Company.
Company Formation and Summary of Certain Provisions of the Members Agreement
Formation
In accordance with the Plan, the Certificate of Formation of the Company
was filed on September 24, 1997 with the office of the Delaware Secretary of
State, for the purpose of forming the Company as a limited liability company
under the provisions and subject to the requirements of the State of Delaware,
in particular the Delaware Limited Liability Company Act, Del. Code Ann.
tit.6, ch. 18 (the "Delaware Act"). The Certificate of Formation became
effective, thereby providing for the formation of the Company, on September
25, 1997 (the "Inception Date").
Purposes
The Company is organized solely for the purposes of (a) receiving and
administering the "Company Assets," which the Members Agreement defines as all
Pension Plan Proceeds as well as any other property or
2
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proceeds acquired by the Company and; (b) distributing the Company Assets to
holders of Membership Units pursuant to the terms of the Members Agreement. The
Company has no objective to engage in the conduct of any other trade or
business. In essence, then, the Company constitutes a vehicle for receiving the
Pension Plan Proceeds and then allocating and distributing all net funds to
holders of Membership Units in the Company.
Administration and the Manager
The Company has no employees. The affairs of the Company are managed by the
Manager. The Manager of the Company, as duly designated by the Official
Committee of Unsecured Creditors appointed in the Debtors' Chapter 11 Case (the
"Creditors' Committee"), is Norwest Bank Minnesota, N.A. (in such capacity, the
"Manager"). As contemplated by the Members Agreement, the principal office of
the Company is maintained at the principal office of the Manager, which is
located at Sixth and Marquette: N9303-120, Minneapolis, Minnesota 55479, Attn:
Lon P. LeClair. The telephone number is (612) 667-4803.
In furtherance of the Company's purposes and subject to the retained
jurisdiction of the Bankruptcy Court as provided for in the Plan, the Manager
is to make continuing efforts to (1) receive the Pension Plan Proceeds, and (2)
make distributions of any Pension Plan Proceeds to the Members, in each case in
an expeditious but orderly manner intended reasonably to maximize the value of
such distributions to the Members, but subject to the judgment and discretion
of the Manager and the provisions of the Members Agreement. The Manager is not
liable to the Company or to any Member for any action or inaction, except in
the case of its willful breach of a material provision of the Members Agreement
or gross negligence in connection with the performance of its duties under the
Members Agreement.
The Manager is empowered to retain such independent experts and advisors
(including, but not limited to, law firms, tax advisors, consultants, or other
professionals) as the Manager may select to aid in the performance of its
duties and responsibilities and to perform such other functions as may be
appropriate in furtherance of the intent and purposes of the Members Agreement.
The Manager has selected the law firm of Jones, Day, Reavis & Pogue ("Jones
Day") to serve as counsel to the Company. Prior to the Effective Date, Jones
Day served as counsel to the Creditors' Committee. The Manager has selected
PricewaterhouseCoopers LLP to provide the Company with financial reporting and
consulting services as well as tax-related services. Norwest Bank Minnesota,
N.A., which also serves as the Disbursing Agent under the Plan and the Transfer
Agent under the Members Agreement, maintains the ownership registers of the
Company, coordinates distributions to Members of the Company and performs
related administrative duties. Rubin, Brown, Gornstein & Co., LLP serves as the
Company's independent auditors.
The Members Agreement also requires the Manager to designate one of the
Members as the "Tax Matters Partner" (as defined in the Section 6231 of the
Internal Revenue Code). The Tax Matters Partner is required to represent the
Company (at the Company's expense) in connection with all examinations of the
Company's affairs by tax authorities and to expend Company funds for
professional services associated therewith. The Tax Matters Partner also
arranges for the preparation and timely filing of all returns required to be
filed by the Company and the distribution of Form K-1 or other similar forms to
all Members. In accordance with the Members Agreement, the Manager has
designated Citibank, N.A., through its authorized representative Randolph I.
Thornton, Jr., to serve as the Tax Matters Partner of the Company.
Subject to the retained jurisdiction of the Bankruptcy Court as provided for
in the Plan, but without prior or further authorization, the Manager may
control and exercise authority over the Company Assets, over the acquisition,
management and disposition thereof and over the management and conduct of the
Company to the extent necessary to enable the Manager to fulfill the intent and
purposes of the Members Agreement. No person dealing with the Company is
obligated to inquire into the authority of the Manager in connection with the
acquisition, management or disposition of the Company Assets. In connection
with the administration of the Company Assets and the management of the
Company's affairs, the Manager has the power to take any and all actions as, in
the Manager's sole discretion, are necessary or advisable to effectuate the
purposes of the Company. The Manager may not at any time, on behalf of the
Company or the Members, enter into or engage in any trade
3
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or business, and no part of the Company Assets will be used or disposed of by
the Manager in furtherance of any such trade or business. All decisions and
actions taken by the Manager under the authority of the Members Agreement will
be binding upon all of the Members and the Company. Without the consent of all
of the Members, the Manager may not (1) take any action in contravention of
the Members Agreement; (2) take any action which would make it impossible to
carry on the activities of the Company; or (3) possess property of the Company
or assign the Company's rights in specific property for other than Company
purposes.
Term of the Company; Dissolution
Unless dissolved earlier because an adjudication of bankruptcy or because
of the unanimous written consent of all Members, the Company's existence will
terminate on September 26, 2000 (the third anniversary of the Effective Date),
unless extended by the Manager (with the approval of the Bankruptcy Court) for
one or more successive periods of two years each if the Company Assets have
not been fully liquidated and distributed or all Disputed General Unsecured
Claims (as defined in the Plan) have not been resolved. In the event of the
Company's dissolution, following the payment of, or provision for, all debts
and liabilities of the Company and all expenses of liquidation, and subject to
the right of the Liquidating Agent (as defined in the Members Agreement) to
set up reasonable cash reserves for any contingent or unforeseen liabilities
or obligations of the Company, all assets of the Company (or the proceeds
thereof) will be distributed to the Members in accordance with their
respective Capital Account balances. No Member will have any recourse against
Edison or any other Member for any distributions with respect to such Member's
Capital Account balances.
Operations of the Company since its Formation
The Pension Plan Refund
The Pension Plan was terminated as of May 31, 1997. Data provided to the
Company by Edison indicates that Edison received a cash refund of $51.41
million on account of the Pension Plan termination. After deducting Pension
Plan Termination Costs of $1.68 million and establishing a Pension Plan Tax
Reserve of $5.7 million, on January 23, 1998, Edison remitted Pension Plan
Proceeds totaling $43,985,315.40 to the Company.
Initial Distribution to Members
The Members Agreement obligates the Manager to facilitate the prompt
distribution of Pension Plan Proceeds to holders of Class A Membership Units
in the Company. Accordingly, on February 13, 1998, the Manager, after
establishing the reserves and making the calculations discussed below,
distributed the aggregate sum of $39,427,156 to 1,337 certificated holders of
record of Class A Membership Units as of February 11, 1998. This aggregate
distribution was calculated as follows:
<TABLE>
<S> <C>
Total Pension Plan Proceeds Received......................... $43,985,315
January Interest Earned...................................... $ 35,197
TOTAL FUNDS ON DEPOSIT (2/11/98)............................. $44,020,512
less:
Reserve for Litigation Indemnification....................... $ 1,500,000
Reserve for Administrative Expenses.......................... $ 300,000
Tax Distribution to Edison................................... $ 959
TOTAL AMOUNT AVAILABLE FOR
FIRST DISTRIBUTION TO MEMBERS................................ $42,219,553
less:
Reserve for Disputed Claims and Claims Not Yet Eligible for
Distribution................................................ $ 2,792,397
TOTAL DISTRIBUTED TO HOLDERS OF CLASS A MEMBERSHIP UNITS ON
FEBRUARY 13, 1998........................................... $39,427,156
</TABLE>
4
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The reserve for litigation indemnification (the "Indemnification Reserve")
was established in accordance with the Plan and the Members Agreement. See
"Item 2. Financial Information--Management's Discussion and Analysis of
Financial Condition and Results of Operations".
As of December 31, 1998, the balance in the Company's operating account was
$286,927. Following satisfaction of administrative expenses, any funds
remaining on deposit were made available for distribution to holders of Class
A Membership Units in the Company.
An additional potential component of a future distribution is the Pension
Plan Tax Reserve currently being held by Edison. In connection with the
termination of the Pension Plan, Edison sought a private letter ruling (the
"Tax Ruling") from the Internal Revenue Service ("IRS") to the effect that any
income realized by Edison as a result of the Pension Plan termination will be
available to offset certain deductions realized by the Debtors in the same
taxable year. On September 28, 1998, the IRS issued the Tax Ruling. The
Company was advised that as a result of the Tax Ruling, there are no
additional taxes to be paid by Edison in connection with termination of the
Pension Plan.
On March 9, 1999, Edison filed a voluntary petition for relief under the
provisions of Chapter 11 of the Bankruptcy Code in the United States
Bankruptcy Court for the District of Delaware. In its petition, Edison listed
the Company among its largest unsecured creditors with a claim totaling
approximately $5.7 million. The claim stems from Edison's retention of the
Pension Plan Tax Reserve.
A meeting of Edison's largest creditors convened on Friday, March 19, 1999
at the office of the United States Trustee for the District of Delaware (the
"United States Trustee"). At this meeting, the United States Trustee appointed
representatives of creditors to the Official Creditors' Committee (the "1999
Committee"). The Company was not appointed to the Committee, as one of the
largest creditors.
On April 23, 1999, the Company filed a complaint (the "Complaint") against
Edison seeking a declaration that Edison is holding the Pension Plan Tax
Reserve in constructive trust for the Company and it is not part of Edison's
bankruptcy. On June 16, 1999, the Company filed a motion for summary judgment
with respect to the Complaint. Edison filed a cross motion for summary
judgement on July 30, 1999. A hearing (the "Hearing") on the Company's summary
judgment motion was held on December 7, 1999 in the United States Bankruptcy
Court for the District of Delaware. At the Hearing, the Bankruptcy judge
denied both summary judgement motions citing the existence of genuine issues
of material fact, but, in so holding, determined that Edison was holding the
Pension Plan Tax Reserve in constructive trust for the Company.
Status as of December 31, 1999
As of December 31, 1999, the balance in the Company's operating account was
$144,200. Following satisfaction of administrative expenses, any funds
remaining on deposit will be available for distribution to holders of Class A
Membership Units in the Company. In addition, any remaining balance of the
$1.5 million Indemnification Reserve, if any, ultimately would be available
for such distribution.
Finally, in August 1999, the Company received returned distributions
totaling approximately $225,000. Pursuant to the Company's Members' Agreement,
for the past 18 months, the Manager has made attempts to distribute these
funds to the respective Members. Currently, the funds are being held by the
Company, available for the respective Members to claim. Any unclaimed funds
will eventually escheat to the state in which they were disbursed according to
that state's statutory period for unclaimed property.
Item 2--Properties
The Company does not own or lease any property.
Item 3--Legal Proceedings
Other than the proceedings described in Item 1 of this Annual Report on
Form 10-K, the Company is not involved in any legal proceedings.
5
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Item 4--Submission of Matters to a Vote of Security-Holders
No matters were submitted to holders of Membership Units for vote during
the fiscal year ended December 31, 1999.
PART II
Item 5--Market for Registrant's Common Equity and Related Stockholder Matters
There is no known established public trading market for the Company's Class
A Membership Units. As of December 31, 1999, there were 2,046 certified
holders of record of the Class A Membership Units. See Item 12--"Security
Ownership of Certain Beneficial Owners and Management" for more information.
Item 6--Selected Financial Data
The following table sets forth selected financial information of the
Company as of and for the years ended December 31, 1999 and 1998 and as of and
for the period ended December 31, 1997 since the Inception Date. The selected
financial data as of and for the years ended December 31, 1999 and 1998 and as
of and for the period ended December 31, 1997 has been derived from the
Company's financial statements, which were audited by Rubin, Brown, Gornstein
& Co., LLP. The following information should be read in conjunction with the
Company's financial statements and notes thereto included elsewhere herein and
"Management's Discussion and Analysis of Financial Condition and Results of
Operations," presented below.
<TABLE>
<CAPTION>
Year ended Year ended Period ended
December 31, December 31, December 31,
1999 1998 1997(/1/)
------------ ------------ ------------
<S> <C> <C> <C>
Operating Statement Data:
Interest income...................... 80,314 321,488 $ 0
General and administrative expenses.. 219,450 256,064 51,910
Net (loss) income.................... (139,136) 65,424 (51,910)
Distribution per Class A Membership
Unit................................ 0 4.23(/2/) 0
Balance Sheet Data (at period end):
Cash................................. 1,869,218 1,786,927 0
Interest receivable.................. 7,436 14,313 0
Due from Edison...................... 0 0 3,985,315
Total assets......................... 1,876,654 1,801,240 43,985,315
Distribution payable................. 225,018 0 0
Accrued expenses..................... 109,766 120,234 51,910
Members' equity...................... 1,541,870 1,681,006 43,933,405
</TABLE>
- --------
(1) The Company's inception date was September 25, 1997.
(2) This represents an average distribution made per Class A Membership Unit
during the year. Actual distributions to Class A Membership Unit holders
may differ. The following includes a detailed discussion of the
distributions made during the year. During February 1998, the Company
distributed $39.4 million of the initial proceeds received from Edison to
the holders of the 9,338,601 Class A Membership Units that were
outstanding at the date of distribution. During June 1998, the Company
distributed $0.6 million of reserved amounts to the holders of the 128,337
Class A Membership Units that were distributed in June 1998. During
November and December 1998, Edison exchanged a total of 533,062 Class B
Membership Units for 533,062 Class A Membership Units of the Company and
simultaneously distributed such Class A Membership Units to holders of
Allowed General Unsecured Claims that had not previously received Class A
Membership Units. On December 31, 1998, the Company distributed $2.3
million of reserved amounts to holders of the Class A Membership Units of
record that were distributed in exchange for Class B Membership Units in
November and December 1998.
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Item 7--Management's Discussion and Analysis of Financial Condition and Results
of Operations
The following is a discussion and analysis of the financial condition and
results of operations of the Company as of and for the years ended December 31,
1999 and 1998 and as of and for the period ended December 31, 1997, and of
certain factors that may affect the Company's prospective financial condition
and results of operations. The following should be read in conjunction with the
Company's Financial Statements and Notes thereto included elsewhere herein.
This discussion contains certain forward-looking statements which involve risks
and uncertainties. The Company's actual results could differ materially from
the results expressed in, or implied by, such statements.
Results of Operations
The Company, which was formed pursuant to the Plan and the Members
Agreement, is a limited purpose entity which may not engage in any business.
The Company was organized for the exclusive purposes of (a) receiving and
administering the Company Assets, and (b) distributing the Company Assets to
holders of the Company's Class A Membership Units pursuant to the terms of the
Members Agreement.
On January 23, 1998, the Company received from Edison the Pension Plan
Proceeds totaling approximately $44.0 million. The Company recognizes income
from interest earned on its funds. The Company invests such funds in a money
market fund investing solely in direct obligations of the United States
Government. The Members Agreement permits all funds received by the Company to
be temporarily invested in United States treasury bills and notes with
maturities of 12 months or less, institutional money market funds and demand or
time deposits and certificates of deposit with U.S. federal or state commercial
banks having primary capital of not less than $500 million. During the year
ended December 31, 1999, the Company recognized $80,314 of interest income.
During the year ended December 31, 1998, the Company recognized $321,488 of
interest income. During the period ended December 31, 1997, the Company did not
recognize any interest income because it did not receive the Pension Plan
Proceeds until January 1998. The amount of interest income recognized by the
Company in future periods will be dependent on, among other things, (1)
fluctuations in interest rates, (2) the amounts and timing of any amounts
received in the future from the Pension Plan Tax Reserve (described below), (3)
the amounts and timing of any distributions to holders of Class A Membership
Units, and (4) the amount and timing of the Company's expenses. The Company may
in the future receive funds currently held in the Pension Plan Tax Reserve,
aggregating approximately $5.7 million. At present, the Bankruptcy Court has
determined that Edison was holding the Pension Plan Tax Reserve in constructive
trust for the Company. Currently, the Company and Edison are engaged in
negotiations in an effort to resolve this matter without the need for a trial.
There can be no assurance, however, that any funds will be distributed to the
Company from the Pension Plan Tax Reserve.
The Company's general and administrative expenses consist primarily of fees
payable to the Transfer Agent, the Manager, and the Company's lawyers,
accountants and auditors. The Company had expenses of $219,450, $256,064 and
$51,910 for the years ended December 31, 1999 and 1998 and for the period ended
December 31, 1997, respectively. These expenses are expected to fluctuate in
future periods primarily based on the volume of any future disbursements on
account of Class A Membership Units and any actions the Company takes in
attempting to obtain the pension plan tax reserve from Edison.
The Company and EBS Litigation, L.L.C. (another limited liability company
formed pursuant to the Plan) have agreed to indemnify the Debtors and their
present or former officers, directors and employees from and against any
losses, claims, damages or liabilities by reason of any actions arising from or
relating to the Company and any actions taken or proceeding commenced by EBS
Litigation, L.L.C. (other than with respect to any Unresolved Avoidance Claims
(as defined in the Plan) that EBS Litigation, L.L.C. may have against such
persons other than in their capacities as officers, directors or employees of
the Debtors. Pursuant to the Plan, the Company established the Litigation
Reserve ($1.5 million) from the Pension Plan Proceeds for the benefit of these
indemnified persons, to pay their costs and expenses incurred in defending the
LLC Related Claims (as defined in the Plan). Payment of such cost and expenses
must first be sought from any applicable officers' and
7
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directors' insurance policy and then from the Indemnification Reserve. The
Company's indemnification liability is limited to the amount of the Litigation
Reserve, i.e. an aggregate of $1.5 million. Although to date there has not been
any indemnification claim, there can be no assurance such a claim will not be
made in the future. All liabilities of the Company, including the foregoing
indemnification obligations, will be satisfied from the Company Assets.
At December 31, 1999, the Company had cash and cash equivalents of
approximately $1.9 million. At December 31, 1998, the Company had cash and cash
equivalents of approximately $1.8 million, after approximately $42.3 million
was distributed to holders of Class A Membership Units in 1998. At December 31,
1997, the Company had no cash or cash equivalents. When determining the amount
and timing of distributions, the Manager considered, among other things, (1)
the terms of the Members Agreement governing distributions, and (2) the
anticipated amount of necessary reserves and future administrative expenses.
The amount and timing of any future distributions of Pension Plan Proceeds will
be determined by the Manager in accordance with the terms of the Members
Agreement. There can be no assurance as to the amount (if any) of any further
distributions that will be made.
The Company is classified as a partnership for federal income tax purposes
and, therefore, does not pay any taxes. Instead, the Members pay taxes on their
proportionate share of the Company's income.
8
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Item 8--Financial Statements
REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS
Independent Auditors' Report
Rubin, Brown, Gornstein & Co., LLP
230 South Bemiston Avenue
St. Louis, MO 63105
Members
EBS Pension, L.L.C.
We have audited the accompanying balance sheet of EBS Pension, L.L.C., a
Delaware limited liability company, as of December 31, 1999 and 1998 and the
related statements of operations, changes in members' equity and cash flows
for the years ended December 31, 1999 and 1998 and for the period beginning
September 25, 1997 and ended December 31, 1997. These financial statements are
the responsibility of the Company's management. Our responsibility is to
express an opinion on these financial statements based on our audit.
We conducted our audit in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to
obtain reasonable assurance about whether the financial statements are free of
material misstatement. An audit includes examining, on a test basis, evidence
supporting the amounts and disclosures in the financial statements. An audit
also includes assessing the accounting principles used and significant
estimates made by management, as well as evaluating the overall financial
statement presentation. We believe that our audit provides a reasonable basis
for our opinion.
In our opinion, the financial statements referred to above present fairly,
in all material respects, the financial position of EBS Pension, L.L.C. as of
December 31, 1999 and 1998, and the results of its operations and its cash
flows for the years ended December 31, 1999 and 1998 and for the period
beginning September 25, 1997 and ended December 31, 1997, in conformity with
generally accepted accounting principles.
/s/ Rubin, Brown, Gornstein & Co.,
LLP
-------------------------------------
Rubin, Brown, Gornstein & Co., LLP
March 8, 2000
9
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EBS Pension, L.L.C.
BALANCE SHEET
December 31, 1999 and 1998
<TABLE>
<CAPTION>
December 31,
----------------------
1999 1998
---------- ----------
Assets
- ------
<S> <C> <C>
Cash and cash equivalents
Available for general operations..................... $ 144,200 $ 286,927
Returned member distributions........................ 225,018
Available for anticipated cost of legal
indemnification of officers......................... 1,500,000 1,500,000
Interest receivable.................................... 7,436 14,313
---------- ----------
Total assets....................................... $1,876,654 $1,801,240
========== ==========
<CAPTION>
Liabilities
- -----------
<S> <C> <C>
Distribution payable................................... $ 225,018
Accrued expenses....................................... 109,766 $ 112,531
Overdrawn cash balance................................. -- 7,703
---------- ----------
Total liabilities.................................. $ 334,784 $ 120,234
---------- ----------
<CAPTION>
Members' equity:
- ----------------
<S> <C> <C>
Membership Units (Class A--10,000,000 authorized,
issued and outstanding at December 31, 1999 and 1998,
Class B--0 authorized, issued and outstanding at
December 31, 1999 and 1998)...........................
Paid-in capital........................................ $1,667,492 $1,667,492
Retained (deficit) earnings............................ (125,622) 13,514
---------- ----------
Total members' equity.............................. $1,541,870 $1,681,006
---------- ----------
Total liabilities and members' equity.............. $1,876,654 $1,801,240
========== ==========
</TABLE>
The accompanying notes are an integral part of these financial statements.
10
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EBS Pension, L.L.C.
STATEMENTS OF OPERATIONS
For the Years Ended December 31, 1999 and 1998
and the Period ended December 31, 1997
<TABLE>
<CAPTION>
Period
September 25, 1997
For the years (date of inception)
ended December 31, through
------------------- December 31,
1999 1998 1997
--------- -------- -------------------
<S> <C> <C> <C>
Income:
Interest............................. $ 80,314 $321,488 $ --
--------- -------- --------
Total income....................... $ 80,314 $321,488 $ --
--------- -------- --------
Expenses:
Transfer agent and other
administration fees................. $ 65,724 $ 71,060 18,621
Legal fees........................... 64,310 82,600 13,288
Manager fees......................... 49,730 63,565 --
Accounting fees...................... 28,000 37,000 20,000
Other................................ 11,686 1,839 --
--------- -------- --------
Total expenses..................... 219,450 256,064 $ 51,909
--------- -------- --------
Net (loss) income.................... $(139,136) $ 65,424 $(51,909)
========= ======== ========
</TABLE>
The accompanying notes are an integral part of these financial statements.
11
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EBS Pension, L.L.C.
STATEMENT OF CHANGES IN MEMBERS' EQUITY
For the Years Ended December 31, 1999 and 1998
and the Period Ended December 31, 1997
<TABLE>
<CAPTION>
Class A Class B Retained
Membership Membership Paid In Earnings/
Units Units Capital (Deficit) Total
---------- ---------- ------------ --------- ------------
<S> <C> <C> <C> <C> <C>
Balance, September 25,
1997................... -- -- $ -- $ -- $ --
Original capital
contribution........... -- 10,000,000 43,985,315 -- 43,985,315
Units transferred....... 9,058,041 (9,058,041) -- -- --
Period loss............. -- -- -- (51,910) (51,910)
---------- ---------- ------------ --------- ------------
Balance, December 31,
1997................... 9,058,041 941,959 43,985,315 (51,910) 43,933,405
Capital distribution.... -- -- (42,318,251) -- (42,318,251)
Units transferred....... 942,238 (942,238) -- -- --
Units and proceeds
returned from June
distribution........... (279) 279 428 -- 428
Current year income..... -- -- -- 65,424 65,424
---------- ---------- ------------ --------- ------------
Balance, December 31,
1998................... 10,000,000 -- 1,667,492 13,514 1,681,006
Current year loss....... -- -- -- (139,136) (139,136)
---------- ---------- ------------ --------- ------------
Balance, December 31,
1999................... 10,000,000 -- $ 1,667,492 $(125,622) $ 1,541,870
========== ========== ============ ========= ============
</TABLE>
The accompanying notes are an integral part of these financial statements.
12
<PAGE>
EBS Pension, L.L.C.
STATEMENT OF CASH FLOWS
For the Years Ended December 31, 1999 and 1998
and the Period ended December 31, 1997
<TABLE>
<CAPTION>
Period
September 25, 1997
For the years ended (date of inception)
December 31, through
------------------------ December 31,
1999 1998 1997
---------- ------------ -------------------
<S> <C> <C> <C>
Cash flows from operating
activities:
Net (loss) income............... $ (139,136) $ 65,424 $ (51,910)
Reconciliation of net (loss)
income to cash flows (used
in)/provided by operating
activities:
Decrease in due from Edison
Brothers, Inc.................. 43,985,315 --
Decrease (increase) in interest
receivable..................... 6,877 (14,313) --
(Decrease) increase in
liabilities.................... (10,468) 68,324 51,910
---------- ------------ -----------
Cash flows (used in)/provided
by operating activities...... (142,727) 44,104,750 --
---------- ------------ -----------
Cash flows from financing
activities:
Proceeds from returned
distributions.................. 225,018 -- --
Capital distribution, net....... -- (42,317,823) --
---------- ------------ -----------
Cash flows provided by (used
in) financing activities..... 225,018 (42,317,823) --
Net increase in cash and cash
equivalents...................... 82,291 1,786,927 --
Cash and cash equivalents at
beginning of period.............. 1,786,927 -- --
---------- ------------ -----------
Cash and cash equivalents at end
of period........................ $1,869,218 $1,786,927 $ --
========== ============ ===========
Supplemental disclosure of noncash
financing activities:
Contribution of net cash pension
proceeds (Due from Edison
Brother Stores, Inc.).......... $ -- $ -- $43,985,315
========== ============ ===========
</TABLE>
The accompanying notes are an integral part of these financial statements.
13
<PAGE>
EBS Pension, L.L.C.
Notes to Financial Statements
December 31, 1999, 1998 and 1997
1. Description of business
EBS Pension, L.L.C. (the "Company") is governed by a Members Agreement,
dated as of September 25, 1997 (the "Members Agreement"). Pursuant to the
Members Agreement, the Company is organized for the exclusive purposes of (a)
receiving and administering the cash proceeds to be received by Edison
Brothers Stores, Inc. ("Edison") and its affiliated debtors in possession
(collectively with Edison, the "Debtors") as a result of the termination of
the Edison Brothers Stores, Inc. Pension Plan (the "Pension Plan"), net of (i)
the Pension Plan assets transferred to qualified replacement pension plans,
(ii) all costs, fees and expenses relating to termination of the Pension Plan
and establishment of the replacement plan, and (iii) all applicable taxes
incurred or for which a reserve is established in connection with termination
of the Pension Plan (the "Net Pension Plan Proceeds"), and (b) distributing
such Net Pension Plan Proceeds to holders of Class A Membership Units (the
"Members") in accordance with the Members Agreement.
2. Summary of significant accounting policies
This summary of significant accounting policies is presented to assist in
evaluating the Company's financial statements included in this report. These
principles conform to generally accepted accounting principles. The
preparation of financial statements in conformity with generally accepted
accounting principles requires that the Company's management make estimates
and assumptions which impact the reported amounts of assets and liabilities at
the date of the financial statements and the reported amounts of revenues and
expenses during the reporting period. Actual results could differ from those
estimates.
Basis of presentation
These financial statements include the accounts of the Company as of
December 31, 1999 and 1998 and for the years ended December 31, 1999 and 1998,
and the period ended December 31, 1997.
Cash and cash equivalents
Cash and cash equivalents consist of amounts held in an account in the
Company's name at a highly-rated financial institution, along with U.S.
Treasury Securities purchased and held in the Company's name.
Accrued expenses
Accrued expenses include amounts payable to service providers and other
vendors. Amounts are payable within one year.
Interest
Interest income is determined on the accrual basis. Interest receivable is
due to be received within one year.
Expenses
All expenses of the Company are recorded on the accrual basis of
accounting.
Income taxes
The Company is not subject to taxes. Instead, holders of Class A Membership
Units report their distributive share of the Company's profits and losses on
their respective income tax returns.
3. Distribution payable in August 1999, $225,018 of proceeds distributed to
Members in February 1998 were returned as the checks issued did not clear the
bank. The funds are held by the Company and are available for the respective
Members to claim. Any unclaimed funds will eventually escheat to the state in
which they were distributed according to that state's statutory period for
unclaimed property.
14
<PAGE>
EBS Pension, L.L.C.
Notes To Financial Statements--(Continued)
4. Members' equity
On September 25, 1997, Edison transferred the right to receive Net Pension
Plan Proceeds from the termination of the Pension Plan in exchange for
10,000,000 Class B Membership Units of the Company, which represented all of
the outstanding Membership Units of the Company. The Net Pension Plan Proceeds
amounted to $43.9 million at December 31, 1997 and were due from Edison at
that date. Pursuant to the Plan of Reorganization, an additional amount of
approximately $5.7 million (the "Pension Plan Tax Reserve") was to be held by
Edison to satisfy certain fees and tax liabilities of Edison. The Plan of
Reorganization further provided that upon receipt of a private letter ruling
(the "Tax Ruling") from the Internal Revenue Service (the "IRS") indicating
that no tax liability existed necessitating release of funds from the Pension
Plan Tax Reserve, that Edison should remit such funds to the Company. On
September 28, 1998, the IRS issued the Tax Ruling. To date, however, Edison
has not released the funds held in the Pension Plan Tax Reserve to the
Company. Some portion of the Pension Plan Tax Reserve may ultimately be
distributed by Edison to the Company. The amount of such distribution (if
any), however, cannot be determined at this time. See Note 5 hereof for
further discussion of the Pension Plan Tax Reserve.
On December 12, 1997, in accordance with the Members Agreement and the Plan
of Reorganization, Edison exchanged 9,058,041 Class B Membership Units for
9,058,041 Class A Membership Units of the Company and simultaneously
distributed such Class A Membership Units to holders of Allowed General
Unsecured Claims.
During 1998, Edison paid $43.9 million to the Company in satisfaction of
the Company's receivable recorded at December 31, 1997. Of this amount, $42.3
million was distributed to Class A Members during 1998, $1.5 million is
retained for the anticipated cost of legal indemnification of the officers of
Edison, and the remaining amount is retained for other anticipated expenses
expected to be incurred by the Company.
During 1998, Edison exchanged 942,238 Class B Membership Units for 942,238
Class A Membership Units of the Company and simultaneously distributed such
units to holders of Allowed General Unsecured Claims.
Also during 1998, certain Class A Membership Unit holders returned 279
Class A Membership Units to Edison as such Membership Units had been
distributed in error. The distribution proceeds relating to these returned
Membership Units are included in paid in capital and were available for future
distributions to holders of Class A Membership Units. At December 31, 1998 and
1999, Edison has no Class B Membership Units authorized, issued or
outstanding.
In August 1999, $225,018 of proceeds distributed to Members in February
1998 were returned as the checks issued did not clear the bank. See Note 3
above for further discussion.
5. Related parties
The Manager of the Company is the same financial institution that holds the
Company's cash and cash equivalents.
6. Commitments and contingencies
On March 9, 1999, Edison filed for protection under Chapter 11 of the
Bankruptcy Code (the "Petition Date"). Prior to the Petition Date, Edison had
not yet released the Pension Plan Tax Reserve to the Company. Therefore,
Edison's Chapter 11 filing may have a materially adverse impact on the
collectibility of the Pension Plan Tax Reserve discussed in the first
paragraph of Note 4 above.
On April 23, 1999, the Company filed a complaint (the "Complaint") against
Edison seeking a declaration that Edison is holding the Pension Plan Tax
Reserve in constructive trust for the Company and it is not part of
15
<PAGE>
EBS Pension, L.L.C.
Notes To Financial Statements--(Continued)
Edison's bankruptcy. On June 16, 1999, the Company filed a motion for summary
judgment with respect to the Complaint. Edison filed a cross motion for
summary judgement on July 30, 1999. A hearing (the "Hearing") on the Company's
summary judgment motion was held on December 7, 1999 in the United States
Bankruptcy Court for the District of Delaware (the "Bankruptcy Court"). At the
Hearing, the Bankruptcy judge denied both summary judgement motions citing the
existence of genuine issues of material fact, but, in so holding, determined
that Edison was holding the Pension Plan Tax Reserve in constructive trust for
the Company. Currently, the Company and Edison are engaged in negotiations in
an effort to resolve this matter without the need for a trial.
7. Subsequent events
Cash on deposit as of March 1, 2000
As of March 1, 2000, the Company had approximately $1.9 million in cash
equivalents. This sum represents the Pension Plan Funding amount as of this
date and accrued interest earned from January 1, 2000 through January 31,
2000, less disbursements through March 1, 2000. This cash, plus any portion of
Pension Plan Tax Reserve that may ultimately be received by the Company, will
be used for general operations and for the anticipated cost of legal
indemnification of the officers of Edison as contemplated by the Members'
Agreement and collecting the Pension Plan Tax Reserve from Edison. Any amounts
not used for these purposes will be made available for future distributions to
Class A Membership Unit holders.
16
<PAGE>
Item 9--Changes in and Disagreements with Accountants on Accounting and
Financial Disclosure
None.
PART III
Item 10--Directors and Executive Officers of the Registrant
The Company has no directors and the Manager, Norwest Bank Minnesota, N.A.,
acts as the Company's sole executive officer. The Manager may resign at any
time or be removed by the Designation Members (defined below), with or without
cause, at any time, such resignation or removal to be effective upon the
appointment of a successor Manager. In the event of the resignation or removal
of the Manager, the Designation Members may appoint a successor Manager that
is not affiliated with Edison. If such appointment does not occur within 90
days, the Manager may petition the Bankruptcy Court for the appointment of a
successor Trustee. The "Designation Members" means the three Members who, at
the applicable date for any action to be taken by Designation Members,
constitute the holders of record of the three largest amounts of Class A
Membership Units provided that (1) affiliated persons are treated as a single
person for these purposes; (2) no affiliate of Edison may be a Designation
Member; and (3) any person may notify the Company that it does not wish to be
a Designation Member. See Item 1--Business "Administration and Manager" for
further discussion.
Item 11--Executive Compensation
The Manager is to receive reasonable compensation for services rendered to
and on behalf of the Company, as well as reimbursement for the reasonable
expenses incurred in connection with the performance of its duties under the
Members Agreement. With respect to services rendered during the year ended
December 31, 1999, the Company paid approximately $50,000 for services
rendered by, and reimbursements due to, the Manager.
With respect to services rendered during the year ended December 31, 1998,
the Company paid approximately $64,000 for services rendered by, and
reimbursements due to, the Manager. With respect to services rendered from the
Inception Date to December 31, 1997, the Company did not accrue for such
services rendered by the Manager, as this amount was not yet determined.
Item 12--Security Ownership of Certain Beneficial Owners and Management
The following table sets forth certain information regarding the
certificated ownership of the Company's Class A Membership Units of persons
owning more than five percent of the outstanding Class A Membership Units as
of December 31, 1999. The Manager of the Company owns 115 Class A Membership
Units.
<TABLE>
<CAPTION>
Number of
Class A
Name and Address of Membership Nature of Certificated
Certificated Owner Units Ownership Percent
------------------- ---------- ---------------------- -------
<S> <C> <C> <C>
Swiss Bank Corporation....... 1,603,998 Sole Voting/Investment 16.0%
Citibank, N.A................ 841,524 Sole Voting/Investment 8.4%
Principal Mutual Life........ 807,659 Sole Voting/Investment 8.1%
Loeb Partners Corporation.... 783,461 Sole Voting/Investment 7.8%
Contrarian Capital Advisors,
L.L.C....................... 682,517 Sole Voting/Investment 6.8%
Morgens Waterfall Overseas
Partners.................... 657,578 Sole Voting/Investment 6.6%
</TABLE>
Item 13--Certain Relationships and Related Transactions
The Manager of the Company is the same financial institution that holds the
Company's cash and cash equivalents.
17
<PAGE>
Part IV
Item 14--Exhibits, Financial Statement Schedules and Reports on Form 8-K.
(a) 1. The following financial statements and the report thereon of Rubin,
Brown, Gornstein & Co., L.L.P. are included in Item 8 of this report:
Report of Independent Public Accountants
Balance Sheets as of December 31, 1999 and 1998
Statements of Operations for the Years Ended December 31, 1999 and 1998
and the Period Ended December 31, 1997
Statements of Changes in Members' Equity for the Years Ended December
31, 1999 and 1998 and the Period Ended December 31, 1997
Statements of Cash Flows for the Years Ended December 31, 1999 and 1998
and the Period Ended December 31, 1997
Notes to Financial Statements
2. Financial Statement Schedules:
All schedules are omitted since the required information is not present
in amounts sufficient to require submission of the schedules or because the
information required is included in the financial statements and notes
thereto.
(b) The Company has not filed any reports on Form 8-K during the last
quarter of the period covered by this Annual Report on Form 10-K.
(c) Exhibits
<TABLE>
<CAPTION>
Exhibit
Number Description
------- -----------
<C> <S> <C>
2.1* Amended Joint Plan of Reorganization of Edison Brothers
Stores, Inc.
3.1* EBS Pension, L.L.C. Certificate of Formation
3.2* EBS Pension, L.L.C. Membership Agreement
23.1 Consent of Independent Public Accountants of ABC
27.1 Financial Data Schedule
</TABLE>
- --------
*Incorporated by reference to the Company's Form 10 originally filed with
the Securities and Exchange Commission on July 29, 1998 (SEC File No.000-
24713).
18
<PAGE>
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, the registrant has duly caused this report to be signed
on its behalf by the undersigned, thereunto duly authorized.
EBS PENSION, L.L.C.
(Registrant)
By: NORWEST BANK MINNESOTA, N.A., in
its
capacity as Manager of EBS
Pension, L.L.C.
/s/ Lon P. LeClair
By: _________________________________
Lon P. LeClair
Vice President
Dated March 30, 2000
19
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
Number Item Location
------- ---- --------
<C> <S> <C>
2.1* Amended Joint Plan of Reorganization of Edison Brothers Incorporated by reference
Stores, Inc.
3.1* EBS Pension, L.L.C. Certificate of Formation Incorporated by reference
3.2* EBS Pension, L.L.C. Membership Agreement Incorporated by reference
23.1 Consent of Independent Public Accountants Filed herewith
27.1 Financial Data Schedule Filed herewith
</TABLE>
- --------
*Incorporated by reference to the Company's Form 10 originally filed with the
Securities and Exchange Commission on July 29, 1998 (SEC File No.000-24713).
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation of
our report dated March 8, 2000, included in this Annual Report on Form 10-K.
/s/ Rubin, Brown, Gornstein & Co.,
LLP
-------------------------------------
Rubin, Brown, Gornstein & Co., LLP
St. Louis, Missouri
March 29, 2000
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<S> <C> <C>
<PERIOD-TYPE> YEAR YEAR
<FISCAL-YEAR-END> DEC-31-1999 DEC-31-1998
<PERIOD-START> JAN-01-1999 JAN-01-1998
<PERIOD-END> DEC-31-1999 DEC-31-1998
<CASH> 1,869,218 1,786,927
<SECURITIES> 0 0
<RECEIVABLES> 7,436 14,313
<ALLOWANCES> 0 0
<INVENTORY> 0 0
<CURRENT-ASSETS> 1,876,654 1,801,240
<PP&E> 0 0
<DEPRECIATION> 0 0
<TOTAL-ASSETS> 1,876,654 1,801,240
<CURRENT-LIABILITIES> 334,784 120,234
<BONDS> 0 0
0 0
0 0
<COMMON> 0 0
<OTHER-SE> 1,541,870 1,681,006
<TOTAL-LIABILITY-AND-EQUITY> 1,876,654 1,801,240
<SALES> 0 0
<TOTAL-REVENUES> 80,314 321,488
<CGS> 0 0
<TOTAL-COSTS> 0 0
<OTHER-EXPENSES> 219,450 256,064
<LOSS-PROVISION> 0 0
<INTEREST-EXPENSE> 0 0
<INCOME-PRETAX> (139,136) 65,424
<INCOME-TAX> 0 0
<INCOME-CONTINUING> (139,136) 65,424
<DISCONTINUED> 0 0
<EXTRAORDINARY> 0 0
<CHANGES> 0 0
<NET-INCOME> (139,136) 65,424
<EPS-BASIC> (.014) .007
<EPS-DILUTED> (.014) .007
</TABLE>
