<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON June 11, 1999
REGISTRATION NO. 333-18397
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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POST-EFFECTIVE AMENDMENT
NO. 7 ON FORM S-2
TO
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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TRUSERV CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE
(STATE OR OTHER JURISDICTION OF INCORPORATION OR ORGANIZATION)
36-2099896
(I.R.S. EMPLOYER IDENTIFICATION NO.)
8600 WEST BRYN MAWR AVENUE
CHICAGO, IL 60631-3505
(773) 695-5000
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
DANIEL A. COTTER
CHIEF EXECUTIVE OFFICER
TRUSERV CORPORATION
8600 WEST BRYN MAWR AVENUE
CHICAGO, IL 60631-3505
(773) 695-5000
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
COPIES TO:
DANIEL T. BURNS, ESQ.
TRUSERV CORPORATION
8600 WEST BRYN MAWR AVENUE
CHICAGO, IL 60631-3505
(773) 695-6601
(773) 695-5465 (FAX)
GEOFFREY R. MORGAN, ESQ.
MICHAEL, BEST & FRIEDRICH
100 E. WISCONSIN AVENUE
MILWAUKEE, WI 53202
(414) 271-6560
(414) 277-0656 (FAX)
If any of the securities being registered on this Form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities Act
of 1933, check the following box. / X /
If the Registrant elects to delivery its latest annual report to security
holders, or a complete and legible facsimile thereof, pursuant to item II(a)(1)
of this Form, check the following box. / X /
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<PAGE> 2
TRUSERV CORPORATION
95,228 SHARES CLASS A COMMON STOCK, $100 PAR VALUE
(IN UNITS OF SIXTY SHARES)
THE COMMON STOCK IS OFFERED EXCLUSIVELY TO RETAILERS AND RENTERS OF
HARDWARE, LUMBER AND RELATED PRODUCTS, WHEN THEY BECOME MEMBERS OF TRUSERV
CORPORATION.
THE COMMON STOCK CANNOT BE TRANSFERRED. WE RETAIN AN AUTOMATIC LIEN AGAINST
THE COMMON STOCK AND ANY ACCRUED DIVIDENDS FOR ANY DEBTS THAT MEMBERS OWE US.
THERE IS NO EXISTING MARKET FOR THIS COMMON STOCK AND WE DO NOT EXPECT THAT
ONE WILL DEVELOP.
CONSIDER CAREFULLY THE RISK FACTORS BEGINNING ON PAGE 5 IN THIS PROSPECTUS
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NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED THESE SECURITIES, OR DETERMINED IF THIS
PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
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<TABLE>
<CAPTION>
PER UNIT TOTAL
<S> <C> <C>
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Public Price................................................ $6,000 $9,522,800 (1)
Underwriting discounts...................................... none none)
(2
Proceeds to TruServ......................................... $6,000 $9,522,800 (3)
</TABLE>
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(1) The shares are offered in units of 60 shares each. The minimum purchase is
60 shares or one unit. You may not purchase more than 300 shares (5 units).
(2) There are no underwriters.
(3) There are no firm commitments for the sale of these securities.
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THE DATE OF THIS PROSPECTUS IS .
<PAGE> 3
WHERE YOU CAN FIND MORE INFORMATION
We file annual. quarterly and special reports, proxy statements, and other
information with the SEC. Our SEC filings are available over the Internet on the
SEC's web site at http://www.sec.gov.. You may also read and copy any document
we file at the SEC's public reference rooms in Washington, D.C., New York, New
York and Chicago, Illinois. Please call the SEC at 1-800-SEC-0330 for further
information on the public reference rooms.
REPORTS TO SECURITY HOLDERS
Each year, we distribute an annual report containing consolidated financial
statements reported upon by our independent auditors to our stockholder-members.
We may, from time to time, also furnish to our stockholder-members interim
reports, as determined by our management.
DOCUMENTS INCLUDED AND INCORPORATED BY REFERENCE
The SEC allows us to "incorporate by reference" information we file with
them which means that we can disclose important information to you by referring
you to those documents and delivering them to you with this prospectus. We are
incorporating by reference our Annual Report on Form 10-K for the year ended
December 31, 1998 and our Quarterly Report on Form 10-Q for the thirteen weeks
ended April 3, 1999, which we filed with the SEC under Section 15(d) of the
Securities Exchange Act of 1934. We also are including the Form 10-K and the
Form 10-Q with this prospectus for your information.
2
<PAGE> 4
SUMMARY
TruServ Corporation began as a Delaware corporation in 1953, and was the
successor to the business activities of Cotter & Company, an Illinois
corporation incorporated in 1948. Until July 1, 1997, when we merged with
ServiStar Coast to Coast Corporation, our corporate name was Cotter & Company.
Our corporate headquarters are located at 8600 West Bryn Mawr Avenue, Chicago,
Illinois 60631-3505. Our telephone number is (773) 695-5000.
We are a member-owned wholesaler of hardware, lumber/building materials and
related merchandise, Our company is the largest member-owned wholesaler of these
items in the United States. For financial reporting purposes, we operate in a
single industry as a member-owned wholesaler cooperative.
COMMON STOCK
Our Class A common stock has a $100.00 par value. It is offered exclusively
to you and other retailers of hardware, lumber/building and related merchandise,
when you become a Member of our cooperative. The Class A common stock is the
sole voting stock and is offered only in sixty-share units. You may not acquire
more than five units at a rate of one unit per store. You must pay cash for all
your stock purchases.
Our Class B nonvoting common stock has a par value of $100 per share. It
can be issued only as part of our patronage dividend.
You cannot transfer the Class A common stock to someone else without first
offering us the opportunity to repurchase the stock. We have ninety days to
repurchase the stock, at par value, before you can otherwise dispose of the
stock. We will retain an automatic lien on the Class A common stock and any
dividends that might have accrued, if you have any debt payable to us.
Either of us may terminate our membership agreement with sixty-days'
written notice. If the agreement is terminated, we are obligated to repurchase
your Class A stock, and you are obligated to sell the stock back to us. We
cannot terminate any membership agreement unless two-thirds of our Board of
Directors approves the termination. The only exceptions to this requirement are
if you should do any of the following:
1) You become insolvent.
2) You commit any act of bankruptcy.
3) You file a voluntary petition in bankruptcy.
4) You are adjudicated as bankrupt
5) You commit a breach of any obligation under our agreement that is not
corrected within ten days after we give you written notice.
There is no existing market for our Class A common stock and we do not
anticipate that any market will develop.
FRANCHISES AND LICENSES
We are continuing to review our franchised retail activities. These include
Taylor Rental Centers and Grand Rental Stations. We anticipate that additional
licenses will be entered into with respect to these activities. We do not
anticipate that we will have other retail programs that will be operated as
franchises.
RETAIL CONVERSION FUNDS AGREEMENT
For those members who were members at the time of our merger with Servistar
Coast to Coast, we have made available $40,000,000 to assist them in defraying
various conversion costs associated with the merger. As of April 3, 1999, we
have paid out $17,495,493 from these funds.
3
<PAGE> 5
COMPARATIVE PER SHARE PRICES AND DIVIDEND POLICIES
Our stock is not listed or traded on any national securities exchange or on
the NASDAQ. It is offered exclusively to retailers or renters of hardware,
lumber and related products, in connection with joining our cooperative as
members. The purchase price of the stock is equal to its par value. Our stock is
restricted as to transferability and there is no public market for it. We do not
pay dividends with respect to the Class A common stock.
COMPARATIVE PER SHARE DATA
Because there is no public market for our stock and the sale or issuance of
the stock is at par value, earnings per share is not applicable.
The following table shows the book value of our stock on an historical
basis.
Book value per share as of:
<TABLE>
<S> <C>
April 3, 1999.......................................... $ 83.98
December 31, 1998...................................... $ 94.29
April 4, 1998.......................................... $ 99.53
December 31, 1997...................................... $100.40
</TABLE>
4
<PAGE> 6
RISK FACTORS
GENERAL
Our business is subject to a number of risks. Foremost amongst these risks
is the uncertain growth of the hardware, lumber/building materials, home center,
do-it-yourself, rental and industrial/commercial supply industries. Widespread
economic trends as well as seasonal and regional factors can affect our
industry.
Our markets are also subject to increasingly intense competition and
changes. We expect continued competition from the so-called "Big Box" stores
such as Home Depot, Menards, Builders Square and Lowes, as well as from
additional emphasis on directly competitive lines of business by Home Depot and
diversified retailers such as Sears. These competitors may have greater
resources, larger market shares and more widespread presences than we do. We
believe our cooperative structure best situates our Members to compete with the
Big Boxes and other market competitors, but no assurances can be made that any
Member or Members will be successful.
VOLATILE PRICING OF MERCHANDISE/INVENTORY
The price of merchandise and inventory in the lumber and building materials
industry can change rapidly and such changes may affect our profit margins and
competitive abilities adversely. We believe our cooperative structure creates
the best opportunity for our Members to obtain lower prices and maximize their
purchasing power, but such efficiencies cannot be assured.
REGIONAL MARKET VARIATIONS
We transact business nationwide. From time to time, significant variations
in marketing opportunities may confront our Members due to economic conditions
in the Member's specific geographic region. We are unable to predict any adverse
regional economic conditions that may materially affect a Member or Members.
ENVIRONMENTAL
We engage in activities, such as the manufacture of paint and related
products, which could have an environmental impact. These areas are subject to
constant review and scrutiny by governmental authorities at the federal, state
and local levels. We are unable to predict whether, or to what extent, such
business activities and governmental scrutiny may result in future costs or
liabilities.
5
<PAGE> 7
YEAR 2000
GENERAL
We started our Year 2000 Project in late 1996. Portions of our information
systems are not yet "Year 2000 compliant". We have established a corporate-wide
program to address any problems arising from the transition to the Year 2000 in
both our information systems and other "embedded" systems in all facilities.
OUR STATE OF READINESS
We have evaluated all of our critical material information systems and have
reviewed agreements and relationships with third parties that are material to
our operations. Also, we have reviewed and evaluated our physical plants and
other systems with potential "embedded concerns and problems." Based upon those
reviews and our efforts to date, we believe that we are on schedule to have
substantially completed Year 2000 compliance issues by July 1, 1999.
COSTS
The budget for our Year 2000 project is $16,900,000. Actual costs through
April 3, 1999 are $13,314,000. The approximate percentage of the Year 2000 costs
to our total Information Services budget is 14%. Funding has been provided
through our normal operating and financing activities. The expense for our Year
2000 program is as follows:
<TABLE>
<S> <C>
1996............................................... $ 1.0 million
1997............................................... $ 3.2 million
1998............................................... $ 7.9 million
1999 projected..................................... $ 4.6 million
2000 projected..................................... $ 0.2 million
Total projected.................................... $16.9 million
</TABLE>
RISKS
A worst case scenario for us would involve a breakdown in the distribution
chain to our Members. Such a scenario could be realized either through the
inability of our vendors to provide merchandise or our inability to receive or
properly process orders from our membership.
CONTINGENCY PLANS
We are establishing an alternate supplier plan in the event that our
vendors suffer from Year 2000 related problems. Contingency planning for
information systems and possible "embedded" systems is also in progress.
6
<PAGE> 8
SELECTED FINANCIAL DATA
(In thousands except per share amounts)
<TABLE>
<CAPTION>
FOR THE THIRTEEN
WEEKS ENDED
APRIL 3, APRIL 4, FOR THE FISCAL YEARS
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1999 1998 1998 1997 1996 1995 1994
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<S> <C> <C> <C> <C> <C> <C> <C>
Revenues............................. $1,070,892 $1,030,205 $4,328,238 $3,331,686 $2,441,707 $2,437,002 $2,574,445
Gross Margins........................ 54,232 80,479 298,135 241,020 196,636 202,068 223,331
Net Margins (a)...................... (24,380) 2,171 20,480 42,716 52,410 59,037 60,318
Patronage dividends.................. -- 2,186 35,024 43,782 53,320 60,140 60,421
Total Assets......................... 1,748,614 1,715,180 1,600,764 1,438,913 853,985 819,576 868,785
Long-term debt....................... 314,785 169,171 316,959 169,209 80,145 79,213 75,756
Promissory (subordinated) and
installment notes payable.......... 123,698 166,051 124,422 172,579 185,366 186,335 199,099
Redeemable Class A common stock...... 49,726 51,274 49,880 47,423 4,876 5,294 6,370
Redeemable Class B nonvoting common
stock.............................. 190,331 182,560 195,643 187,259 114,053 113,062 116,663
Book value per share of Class A
common stock and Class B nonvoting
common stock (b)................... 83.98 99.53 94.29 100.40 101.89 102.68 103.57
</TABLE>
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(a) The net margin for Fiscal Years 1998 and 1997 includes a deduction of
$20,034,000 and $13,650,000, respectively for non-recurring Merger
integration costs. The net margin for the thirteen weeks ended April 3, 1999
and April 4, 1998 includes a deduction of $13,008,000 and $1,847,000,
respectively for non-recurring merger integration costs and a cumulative
affect on prior years of a change in accounting principle.
(b) The book value per share of the Company's Class A common stock and Class B
nonvoting common stock is the value, determined in accordance with generally
accepted accounting principles, of such shares as shown by the respective
consolidated balance sheets of the Company.
USE OF PROCEEDS
We plan to use the proceeds from the offering of this stock for general
working capital, including the purchase of merchandise for resale to our
members.
PLAN OF DISTRIBUTION
We are offering the stock exclusively to retailers of hardware, lumber and
related merchandise, in connection to becoming one of our members. To become a
stockholder-member you must subscribe for sixty shares of our Class A common
stock for each retail store you operate up to a maximum of 300 shares or $30,000
for five or more stores. All sales of our stock will be made for cash. Each
share has a par value of $100.
Sales of the stock are primarily made through our registered securities
agent after your membership has been approved by our executive officers.
7
<PAGE> 9
DISTRIBUTION OF PATRONAGE DIVIDENDS
Information relating to the distribution of patronage dividends is included
in our Annual Report on Form 10-K for the year ended December 31, 1998 in Part
I, Item 1, and is incorporated by reference.
DESCRIPTION OF COMMON STOCK
DIVIDEND RIGHTS. We have not paid nor do we plan to pay in the future any
dividends on our Class A common stock. Dividends, other that patronage
dividends, on Class A common stock and Class B nonvoting common stock may be
declared out of our gross margins, other that gross margins from operations with
or for members and other patronage source income, after deducting expenses,
reserves and provisions authorized by our Board of Directors. The dividends may
be paid in cash, in property, or in shares of common stock. All dividends are
subject to the provisions of our Certificate of Incorporation.
VOTING RIGHTS. Our Class A common stock is the sole voting stock. It is
offered only in sixty-share units, and no member may acquire more than five
units.
LIQUIDATION RIGHTS. If we should dissolve or liquidate the company, the
assets will be divided ratably among all shareholders of Class A common stock
and Class B nonvoting common stock in accordance with their holdings and without
preference to class of stock.
MEMBERSHIP. To become a member you must purchase sixty shares of Class A
common stock for each store that you own up to maximum of 300 shares for five or
more stores. You must own Class A common stock before any Class B nonvoting
common stock can be issued or sold to you.
REDEMPTION PROVISIONS. The membership agreement may be terminated by you or
by the company on sixty-days' written notice. We cannot terminate your
membership unless we receive approval by a two-thirds vote of the Board of
Directors, except under the following conditions:
1) You become insolvent.
2) You commit any act of bankruptcy.
3) You file a voluntary petition in bankruptcy
4) You are adjudicated as bankrupt.
5) You commit a breach of any obligation under our agreement and have not
corrected the breach within sixty days after written notice is received.
If termination should occur, we will purchase and you are required to sell
to us all of your Class A common stock and Class B nonvoting common stock at par
value. Payment for the Class A common stock will be in cash. Payment for the
Class B nonvoting common stock will be a note payable in five equal annual
installments bearing an interest rate determined by our Board of Directors.
STOCKHOLDERS. On April 3, 1999 there were approximately 8,139 stockholders
of Class A common stock and approximately 8,130 stockholders of Class B
nonvoting common stock.
OTHER RESTRICTIONS AND RIGHTS. (a) We have no conversion rights, sinking
fund provisions or liability to further assessment in regard to the Class A
common stock.
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<PAGE> 10
(b) We have an automatic lien to secure the payment of any indebtedness due
us from any stockholder of record upon the Class A common stock, the Class B
nonvoting common stock and any declared and unpaid dividends.
(c) There is no existing market for the Class A common stock . We have the
option, exercisable within ninety days following the date we receive written
notice, to repurchase all shares at par value. Any disposition or attempted
disposition or transfer, voluntary or involuntary, of our common stock is
invalid. No rights are transferred unless and until we have been given the
required notice and we have failed to exercise our option to purchase the stock
within the specified time.
LEGAL MATTERS
The legality of the issuance of the Class A common stock offered has been
passed upon for us by Messrs. Arnstein & Lehr, Chicago, Illinois.
9
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THIS PROSPECTUS DOES NOT CONTAIN ALL THE INFORMATION SET FORTH IN THE
REGISTRATION STATEMENT, AND THE EXHIBITS AND SCHEDULES RELATING THERETO, WHICH
THE COMPANY HAS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION, WASHINGTON,
D. C. UNDER THE SECURITIES ACT OF 1933 AND TO WHICH REFERENCE IS HEREBY MADE FOR
FURTHER INFORMATION WITH RESPECT TO THE COMPANY AND THE SECURITIES OFFERED
HEREBY.
TABLE OF CONTENTS
<TABLE>
<CAPTION>
ITEM PAGE
---- ----
<S> <C>
Where You Can Find More Information...... 2
Reports to Security Holders.............. 2
Documents Included and Incorporated
by Reference........................... 2
Summary.................................. 3
Risk Factors............................. 5
Selected Financial Data.................. 7
Use of Proceeds.......................... 7
Plan of Distribution..................... 7
Distribution of Patronage Dividends...... 8
Description of Common Stock.............. 8
Legal Matters............................ 9
</TABLE>
NO DEALER, SALESMAN, OR ANY OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS
PROSPECTUS IN CONNECTION WITH THE OFFERING CONTAINED IN THIS PROSPECTUS, AND, IF
GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS
HAVING BEEN AUTHORIZED BY THE COMPANY.
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TRUSERV CORPORATION
95,228 SHARES
CLASS A COMMON STOCK
$100 PAR VALUE
(IN UNITS OF 60 SHARES)
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PROSPECTUS
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DATED , 1999
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<PAGE> 12
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following are the actual or estimated expenses in connection with the
issuance and distribution of the Class A common stock being registered:
<TABLE>
<S> <C>
Registration Fee............................................ $ 0
Printing of Registration Statement and Prospectus........... 4,000
Accounting Fees and Expenses................................ 10,000
Legal Fees.................................................. 10,000
Fees and Expenses for Qualifying Securities under "Blue Sky"
Laws of
Various States............................................ 15,000
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Total....................................................... $39,000
=======
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
TruServ's Certificate of Incorporation, as amended, provides that TruServ
shall indemnify, in accordance with and to the full extent permitted by the
Delaware General Corporation Law, any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(including, without limitation, an action by or in the right of TruServ), by
reason of the fact that such person is or was a director, officer, employee or
agent of TruServ, or is or was serving at the request of TruServ as a director,
officer, employee or agent of another company, partnership, joint venture, trust
or other enterprise, against any liability or expense actually and reasonably
incurred by such person in respect thereof. Such indemnification is not
exclusive of any other right of such director, officer, or employee to
indemnification provided by law or otherwise.
Additionally, pursuant to Section 145(a)-(g) of the Delaware General
Corporation Law which empowers a corporation to indemnify its directors,
officers, employees and agents, on July 23, 1973 the Board of Directors adopted
a By-Law (Article XIII, Indemnification of Directors, Officers and
Employees--Exhibit 2-A to Registration Statement on Form S-4 (No. 333-18397) and
incorporated herein by reference) providing for such indemnification. The
following is a summary of the most significant provisions of said By-Law:
As against third parties, TruServ shall indemnify any director, officer,
employee or agent for any expenses (including attorneys' fees, judgments, fines
and amounts paid in settlement) actually and reasonably incurred in defending
any threatened, pending or completed suit or proceeding, whether civil,
criminal, administrative or investigative brought against such person by reason
of the fact that he was or is a director, officer, employee or agent, if such
person acted in good faith and in a manner he reasonably believed to be in or
not opposed to the best interest of TruServ, and with respect to any criminal
action or proceeding if he had no reasonable cause to believe his conduct
unlawful.
In any action or suit by or in the right of TruServ, TruServ shall
indemnify any director, officer, employee or agent who is or was a party or
threatened to be made a party to such threatened, pending or completed action or
suit, for expenses (including attorney's fees and amounts paid in settlement)
reasonably and actually incurred in connection with the defense or settlement of
such suit or action, if such person acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interest of TruServ,
except that no indemnification shall be made if such person has been adjudged to
be liable for negligence or misconduct in the performance of his duty to TruServ
unless and only to the extent that the Court of Chancery of Delaware or the
court where the suit was brought finds that in view of all the circumstances of
the case, such person is entitled to indemnification.
Any indemnification, unless ordered by a court, shall be made by TruServ
only as authorized in the specific case upon a determination that
indemnification is proper in the circumstances because the party to be
II-1
<PAGE> 13
indemnified has met the applicable standard of conduct. Such determination shall
be made by the Board of Directors by a majority vote of a quorum, consisting of
directors who were not parties of such action, suit or proceeding, or if such a
quorum is not obtainable, or even if obtainable, if a quorum of disinterested
directors so directs, by independent legal counsel in a written opinion, or by
the stockholders.
Additionally, the stockholders of TruServ have approved an amendment to the
Certificate of Incorporation to eliminate personal liability of directors for
monetary damages for breach of fiduciary duty of care. The amendment provides
that a director of TruServ shall not be liable to TruServ or its stockholders
for monetary damages for breach of fiduciary duty as a director, except to the
extent such exemption from liability or limitation thereof is not permitted
under the Delaware General Corporation Law as the same exists or may hereafter
be amended.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 is concerned, see Item 17 "Undertakings" below.
ITEM 16. EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<C> <S>
2-A Agreement and Plan of Merger dated as of December 9, 1996
between the Company and ServiStar Coast to Coast Corporation
("SCC"). Incorporated by reference on Exhibit 2-A to
Registration Statement on Form S-4 (No. 333-18397)
4-A Amended and Restated Certificate of Incorporation of the
Company, effective July 1, 1997. Incorporated by reference
-- Exhibit 2-A to Registration Statement on Form S-4 (No.
333-18397).
4-B By-laws of the Company, effective July 1, 1997. Incorporated
by reference -- Exhibit 2-A to Registration Statement on
Form S-4 (No. 333-18397).
4-C Specimen certificate of Class A common stock. Incorporated
by reference--Exhibit 4-A to Registration Statement on Form
S-2 (No. 2-82836).
4-D Specimen certificate of Class B common stock. Incorporated
by reference--Exhibit 4-B to Registration Statement on Form
S-2 (No. 2-82836).
4-E Promissory (subordinated) note form effective for the
year-ending December 31, 1986 and thereafter. Incorporated
by reference--Exhibit 4-H to Registration Statement on Form
S-2 (No. 33-20960).
4-F Instalment note form. Incorporated by reference--Exhibit 4-F
to Registration Statement on Form S-2 (No. 2-82836).
4-G Copy of Note Agreement with Prudential Insurance Company of
America dated April 13, 1992 securing 8.60% Senior Notes in
the principal sum of $50,000,000 with a maturity date of
April 1, 2007. Incorporated by reference--Exhibit 4-J to
Post-Effective Amendment No. 2 to Registration Statement on
Form S-2 (No. 33-39477).
4-H Cotter & Company $50,000,000 Private Shelf Agreement with
Prudential Insurance Company of America dated December 29,
1995 incorporating amendment on existing Note Agreement with
Prudential Insurance Company of America dated April 13, 1992
securing 8.60% Senior Notes in the principal sum of
$50,000,000 with a maturity date of April 1, 2007.
Incorporated by reference--Exhibit 4-H to Post-Effective
Amendment No. 5 to Registration Statement on Form S-2 (No.
33-39477).
4-I Trust Indenture between Cotter & Company and First Trust of
Illinois (formerly Bank of America). Incorporated by
reference--Exhibit T3C to Cotter & Company Form T-3 (No.
22-26210).
4-J Credit Agreement dated July 1, 1997 for $300,000,000
Revolving credit between TruServ Corporation, various
financial institutions, and Bank of America. Incorporated by
reference--Exhibit 4-J to Post-Effective Amendment No. 5 to
Registration Statement on Form S-2 to Form S-4 (No.
333-18397)
4-K Amended and Restated Private Shelf Agreement between TruServ
Corporation and Prudential Insurance Company of America
dated November 13, 1997 for $150,000,000. Incorporated by
reference--Exhibit 4-K to Post-Effective Amendment No. 5 to
Registration Statement on Form S-2 to Form S-4 (No.
333-18397)
</TABLE>
II-2
<PAGE> 14
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<C> <S>
4-L Credit Agreement dated September 10, 1998 for $105,000,000
Note Purchase Agreement between TruServ Corporation and
various Purchasers.* Incorporated by reference--Exhibit 4L
to Post-Effective Amendment No. 6 to Registration Statement
on Form S-4 (No. 333-18397).
4-M Participation Agreement dated April 30, 1998 for $40,000,000
between TruServ Corporation, various Financial institutions
and Bank of Montreal.* Incorporated by reference--Exhibit
4-M to Post-Effective Amendment No. 6 to Registration
Statement on Form S-4 (No. 333-18397).
4-N Credit Agreement dated September 30, 1998 for $100,000,000
Revolving Credit between TruServ Corporation, various
Financial institutions, and Bank of America.* Incorporated
by reference--Exhibit 4-N to Post-Effective Amendment No. 6
to Registration Statement on Form S-4 (No. 333-18397).
5 Opinion of Messrs. Arnstein & Lehr (previously filed).
10-A Current Form of Retail Member Agreement with TruServ
Corporation between the Company and its Members that offer
primarily hardware and related items. Incorporated by
reference--Exhibit 2-A to the Company's Registration
Statement on Form S-4 (No. 333-18397).
10-B Form of Subscription to Shares of TruServ Corporation.
Incorporated by reference--Exhibit 10-B to Post-Effective
Amendment No. 5 to Registration Statement on Form S-2 to
Form S-4 (No. 333-18397)
10-C Cotter & Company Defined Lump Sum Pension Plan (As Amended
and Restated Effective As Of January 1, 1996). Incorporated
by reference--Exhibit 10-C to Post-Effective Amendment No. 5
to Registration Statement on Form S-2 (No. 33-39477).
10-D Cotter & Company Employees' Savings and Compensation
Deferral Plan (As Amended and Restated Effective April 1,
1994). Incorporated by reference--Exhibit 10-D to Post-
Effective Amendment No. 4 to Registration Statement on Form
S-2 (No. 33-39477).
10-E Cotter & Company Supplemental Retirement Plan between Cotter
& Company and selected executives of the Company (As Amended
and Restated January 2, 1996 Effective As Of January 1,
1996). Incorporated by reference--Exhibit 10-E to
Post-Effective Amendment No. 5 to Registration Statement on
Form S-2 (No. 33-39477).
10-F Annual Incentive Compensation Program and Long-Term
Incentive Compensation Program between Cotter & Company and
selected executives of the Company. Incorporated by
reference--filed as Exhibits A and B to Exhibit 10-N to
Registration Statement on Form S-2 (No. 33-39477).
10-G Cotter & Company Long-Term Incentive Compensation Program
for Executive Management (Amended) dated November 7, 1994.
Incorporated by reference--Exhibit 10-I to Post-Effective
Amendment No. 4 to Registration Statement on Form S-2 (No.
33-39477).
10-H Employment Agreement between Cotter & Company and Daniel A.
Cotter dated October 15, 1984. Incorporated by
reference--Exhibit 10-N to Post-Effective Amendment No. 2 to
Registration Statement on Form S-2 (No. 2-82836).
10-I Amendment No. 1 to Employment Agreement between Cotter &
Company and Daniel A. Cotter dated October 15, 1984
effective January 1, 1991. Incorporated by reference--
Exhibit 10-N to Registration Statement on Form S-2 (No.
33-39477).
10-J Contract between Daniel T. Burns and the Company.
Incorporated by reference--Exhibit 10-J to Post-Effective
No. 5 to Registration Statement in Form S-2 (No. 33-39477).
10-K Contract between Kerry J. Kirby and the Company.
Incorporated by reference--Exhibit 10-K to Post-Effective
No. 5 to Registration Statement on Form S-2 (No. 33-39477).
10-L Retail Conversion Funds Agreement dated as of December 9,
1996 between the Company and SCC. Incorporated by
reference--Exhibit 10-L to Registration Statement on Form
S-4 (No. 333-18397).
23-A Consent of Arnstein & Lehr--Incorporated by reference to
Exhibit 23-A to Registration Statement on Form S-2 to Form
S-4 (No. 333-18397).
23-B Consent of Ernst & Young LLP (included on page II-7).*
</TABLE>
* Filed herewith.
II-3
<PAGE> 15
ITEM 17. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any Prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the Prospectus any facts or events arising after
the effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the Registration Statement.
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the Registration Statement
or any material change to such information in the Registration
Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new Registration Statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
Company pursuant to the foregoing provisions described in Item 15, or otherwise,
the Company has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Company of expenses
incurred or paid by a director, officer or controlling person of the Company in
the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Company will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
II-4
<PAGE> 16
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE REGISTRANT
CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS ALL OF THE
REQUIREMENTS FOR FILING ON FORM S-2 AND HAS DULY CAUSED THIS POST-EFFECTIVE
AMENDMENT NO. 7 ON FORM S-2 TO REGISTRATION STATEMENT ON FORM S-4 TO BE SIGNED
ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY AUTHORIZED, IN THE CITY OF
CHICAGO, STATE OF ILLINOIS, ON THE 11TH DAY OF JUNE, 1999.
TRUSERV CORPORATION
By: /s/ DANIEL A. COTTER
------------------------------------
Daniel A. Cotter
Chairman, Chief Executive Officer
and Director
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, THAT EACH PERSON WHOSE SIGNATURE APPEARS
BELOW, CONSTITUTES AND APPOINTS DANIEL A. COTTER, KERRY J. KIRBY AND DANIEL T.
BURNS, JOINTLY AND SEVERALLY, ATTORNEYS-IN-FACT AND AGENTS, EACH WITH FULL
POWERS OF SUBSTITUTION, FOR HIM OR HER IN ANY AND ALL CAPACITIES TO SIGN ANY AND
ALL AMENDMENTS (INCLUDING POST-EFFECTIVE AMENDMENTS) TO THIS REGISTRATION
STATEMENT, AND TO FILE THE SAME, AND ALL EXHIBITS THERETO, AND OTHER DOCUMENTS
IN CONNECTION THEREWITH, WITH THE SECURITIES AND EXCHANGE COMMISSION, HEREBY
SATISFYING AND CONFIRMING ALL THAT EACH OF SAID ATTORNEYS-IN-FACT AND AGENTS, OR
HIS OR THEIR SUBSTITUTE OR SUBSTITUTES, MAY LAWFULLY DO OR CAUSE TO BE DONE BY
VIRTUE HEREOF.
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES EXCHANGE ACT OF 1934, THIS
ANNUAL REPORT HAS BEEN SIGNED BELOW BY THE FOLLOWING PERSONS ON BEHALF OF THE
REGISTRANT AND IN THE CAPACITIES AND ON THE DATES INDICATED.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <S> <C>
/s/ DANIEL A. COTTER Chairman of the Board, June 11, 1999
- ----------------------------------------------------- Chief Executive Officer and
Daniel A. Cotter Director
/s/ DONALD J. HOYE President, Chief Operating June 11, 1999
- ----------------------------------------------------- Officer and Director
Donald J. Hoye
/s/ KERRY J. KIRBY Executive Vice President and June 11, 1999
- ----------------------------------------------------- Chief Financial Officer
Kerry J. Kirby
/s/ JOE W. BLAGG Director June 11, 1999
- -----------------------------------------------------
Joe W. Blagg
/s/ JAMES D. BURNETT Director June 11, 1999
- -----------------------------------------------------
James D. Burnett
/s/ WILLIAM M. CLAYPOOL, III Director June 11, 1999
- -----------------------------------------------------
William M. Claypool, III
/s/ JAY B. FEINSOD Director June 11, 1999
- -----------------------------------------------------
Jay B. Feinsod
/s/ WILLIAM M. HALTERMAN Director June 11, 1999
- -----------------------------------------------------
William M. Halterman
</TABLE>
II-5
<PAGE> 17
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <S> <C>
/s/ WILLIAM H. HOOD Director June 11, 1999
- -----------------------------------------------------
William H. Hood
/s/ JAMES D. HOWENSTINE Director June 11, 1999
- -----------------------------------------------------
James Howenstine
/s/ JERRALD T. KABELIN Director June 11, 1999
- -----------------------------------------------------
Jerrald T. Kabelin
/s/ PETER G. KELLY Director June 11, 1999
- -----------------------------------------------------
Peter G. Kelly
/s/ ROBERT J. LADNER Director June 11, 1999
- -----------------------------------------------------
Robert J. Ladner
/s/ GEORGE V. SHEFFER Director June 11, 1999
- -----------------------------------------------------
George V. Sheffer
/s/ DENNIS A. SWANSON Director June 11, 1999
- -----------------------------------------------------
Dennis A. Swanson
/s/ JOHN B. WAKE, JR. Director June 11, 1999
- -----------------------------------------------------
John B. Wake, Jr.
/s/ JOHN M. WEST, JR. Director June 11, 1999
- -----------------------------------------------------
John M. West, Jr.
/s/ BARBARA B. WILKERSON Director June 11, 1999
- -----------------------------------------------------
Barbara B. Wilkerson
</TABLE>
II-6
<PAGE> 18
EXHIBIT 23-B
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in Post-Effective Amendment
No. 7 on Form S-2 to the Registration Statement on Form S-4 (File No. 333-18397)
and related Prospectus of TruServ Corporation (Cotter & Company prior to July 1,
1997) for the registration of 95,228 shares of Class A common stock of our
report dated March 25, 1999 with respect to the consolidated financial
statements of TruServ Corporation included in its Annual Report (Form 10-K) for
the year ended December 31, 1998, filed with the Securities and Exchange
Commission.
/s/ ERNST & YOUNG LLP
Chicago, Illinois
June 11, 1999
II-7
<PAGE> 19
INDEX TO EXHIBITS FILED
TO POST EFFECTIVE AMENDMENT NO. 7 TO REGISTRATION STATEMENT ON
FORM S-4 OF TRUSERV CORPORATION
<TABLE>
<CAPTION>
EXHIBIT
NUMBER EXHIBIT
- ------- -------
<C> <S>
23-B Consent of Ernst & Young LLP (included on page II-7).
</TABLE>
Exhibits incorporated by reference are listed on Pages II-2 and II-3 of
Post-Effective Amendment No. 7 to this Registration Statement on Form S-4 of
TruServ Corporation.
Supplemental Information to be Furnished with Reports Filed Pursuant to
Section 15(d) of the Act by Registrants which have not Registered Securities
Pursuant to Section 12 of the Act.
II-8
