<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 13, 2000
REGISTRATION NO. 333-18397
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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POST-EFFECTIVE AMENDMENT
NO. 11 ON FORM S-2
TO
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
TRUSERV CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C>
DELAWARE 36-2099896
(State or other jurisdiction (I.R.S. Employer
of Incorporation or Organization) Identification No.)
</TABLE>
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)
DONALD J. HOYE
President and 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:
LEONARD G. KUHR,
Senior Vice President and
Chief Financial Officer
TruServ Corporation
8600 West Bryn Mawr Avenue
Chicago, IL 60631-3505
(773) 695-5000
(773) 695-6563 (FAX)
GEOFFREY R. MORGAN
Michael Best & Friedrich, LLP
100 E. Wisconsin Avenue
Milwaukee, WI 53202
(414) 271-6560
(414) 277-0656 (FAX)
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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]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
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If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
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If this Form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
---------------------
If delivery of the prospectus is expected to be made pursuant to Rule 434,
check the following box. [ ]
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<PAGE> 2
TRUSERV CORPORATION
58,508 SHARES CLASS A COMMON STOCK, $100 PAR VALUE
(IN UNITS OF 60 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 $5,850,800(1)
Underwriting discounts...................................... none none (2)
Proceeds to TruServ......................................... $6,000 $5,850,800(3)
</TABLE>
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(1) The shares are offered in units of 60 shares each. The minimum purchase is
60 shares for each store owned up to the maximum of 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
The terms "TruServ," "Company," "Cooperative," "We," "Us," and similar
words refer to TruServ Corporation. The terms "member," "retailer," "you,"
"your" and similar words refer to someone who purchases our stock.
We file annual, quarterly and special reports, 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, 1999, our Quarterly Reports on Form 10-Q for the quarters ended
April 1, 2000, July 1, 2000 and September 30, 2000 and our Current Reports on
Form 8-K, filed June 28, 2000, July 6, 2000, and September 28, 2000, all of
which we filed with the SEC under Section 15(d) of the Securities Exchange Act
of 1934. We also are including the Annual Report on Form 10-K for the year ended
December 31, 1999 and the Quarterly Report on Form 10-Q for the quarter ended
September 30, 2000 with this prospectus for your information.
YOU SHOULD RELY ONLY ON THE INFORMATION CONTAINED IN THIS PROSPECTUS. WE
HAVE NOT AUTHORIZED ANY OTHER PERSON TO PROVIDE YOU WITH DIFFERENT INFORMATION.
THIS PROSPECTUS IS NOT AN OFFER TO SELL, NOR IS IT SEEKING AN OFFER TO BUY,
THESE SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
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<PAGE> 4
SUMMARY
The summary highlights information contained elsewhere in this prospectus.
Because this is only a summary, it does not contain all the information that you
should consider before buying shares in this offering. You should read the
entire prospectus carefully, including our consolidated financial statements and
the related notes included elsewhere in this prospectus.
TruServ Corporation is 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. Our corporate headquarters are located at 8600 West Bryn Mawr
Avenue, Chicago, Illinois 60631-3505. Our telephone number is (773) 695-5000.
COMMON STOCK
Our Class A common stock has a $100 par value. It is offered to you when
you become a Member of our cooperative. The Class A common stock is the sole
voting stock of TruServ Corporation. The shares are offered in units of 60
shares each. The minimum purchase is 60 shares for each store owned up to the
maximum of 300 shares (5 units). 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. Information relating to
patronage dividends is included in our Annual Report on Form 10-K for the year
ended December 31, 1999.
You cannot transfer the Class A common stock to someone else without first
offering us the opportunity to repurchase the stock. We have 90 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 to you from us to secure, if any, your debt
payable to us.
Either of us may terminate our membership agreement with sixty-days'
written notice. Pursuant to the Company's By-laws, if the agreement is
terminated, we will repurchase your Class A common stock, and you are required
to sell the stock back to us. Also, pursuant to the Company's By-laws, the Board
of Directors may delay the repurchase/redemption of the Class A common stock if
it believes such action is in the best interest of the Company. 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; or
5) You commit a breach of any obligation under our agreement that is not
corrected within ten days after we give you written notice.
The Company has initiated a moratorium on the redemption of its stock,
which the Board of Directors will review from time to time in light of the
current financial circumstances of the Company.
There is no existing market for our Class A common stock and we do not
expect any market to develop.
COMPARATIVE PER SHARE PRICES AND DIVIDEND POLICIES
Our stock is not listed or traded on any national securities exchange or on
The Nasdaq stock market. It is offered exclusively to you, 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.
3
<PAGE> 5
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 a historical
basis.
Book value per share as of:
<TABLE>
<S> <C>
September 30, 2000..................................... $ 89.87
December 31, 1999...................................... $ 35.40
October 2, 1999........................................ $ 93.89
December 31, 1998...................................... $ 94.29
</TABLE>
Book value per share is calculated by adding together the dollar amounts
for Class A common stock, Class B common stock, Deferred patronage dividend,
Retained earnings/(Accumulated deficit) and Foreign currency translation and
dividing by the number of shares of stock issued for Class A and Class B stock.
The increase in book value in the third quarter is due to the allocation of the
1999 loss, which during the third quarter of fiscal year 2000, management
developed, and the Board of Directors approved, a plan to equitably allocate to
Members the loss incurred in 1999. This loss was previously recorded as a
decrease to Retained Earnings as of December 31, 1999, resulting in an
Accumulated Deficit. The Company has allocated the 1999 loss by establishing a
Loss Allocation account as a contra-equity account in the condensed consolidated
balance sheet with the offsetting increase recorded to Retained Earnings
(Accumulated Deficit). The Loss Allocation account reflects the sum of each
Member's proportionate share of the 1999 loss, after being reduced by certain
amounts that are not allocable to Members. The Loss Allocation account is not a
receivable from Members and does not represent an amount currently due from
Members. Rather, the Loss Allocation account will be satisfied, on a Member by
Member basis, by withholding the portion of future patronage dividends that
would have been paid in Qualified B Stock, at par value, and applying such
amount as a reduction in the Loss Allocation account until fully satisfied. The
current levels of Members' stock investments in the Company will not be
affected. However, in the event a Member should terminate as a shareholder of
the Company, any unsatisfied portion of that Member's Loss Allocation account
will be satisfied by reducing the redemption amount of the Member's stock
investment in the Company.
4
<PAGE> 6
RISK FACTORS
The following risks should be considered before investing in our Common
Stock:
COMPETITION
Our markets are subject to increasingly intense competition and changes. We
expect continued competition from the so-called "Big Box" stores such as Home
Depot, Menards 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.
MORATORIUM ON STOCK REDEMPTION
As discussed on page three of this prospectus, we are required under
certain circumstances, to repurchase your shares of Class A Common Stock upon
termination of your membership agreement with us. We currently have issued a
moratorium on repurchases of the Company's common stock due to the current
financial circumstances of the Company.
5
<PAGE> 7
MEMBER BASE
The success of the company is dependent upon the continued support from its
members and their purchases through the cooperative. The trend in the number of
members participating in the company's programs has recently been unfavorable.
If this trend continues the company's operating results and financial condition
could be adversely effected.
ACCESS TO CAPITAL
The company is financed by debt capital obtained from various external
sources. The majority of the short-term capital is mainly derived from a $300
million revolving credit agreement supported by nine major financial
institutions. This agreement is subject to the company's compliance with certain
financial and non-financial covenants, and any breach of these covenants would
increase the cost of such financing and make it more difficult to access the
necessary working capital requirements.
KEY PERSONNEL
Our success depends to a significant degree upon the continued
contributions of key management, sales, marketing and merchandising personnel,
many of whom would be difficult to replace. If certain of these associates were
to leave, the company would be adversely effected. We also believe our future
success is dependent upon our ability to attract and retain highly skilled
managers and sales, marketing and merchandising associates. Competition for
those types of associates is intense and there can be no assurance that we will
be successful in attracting and retaining the necessary personnel. To the extent
we are not successful, we could be adversely effected.
6
<PAGE> 8
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 you, in connection to becoming one
of our members. To become a stockholder-member you must subscribe for 60 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.
The Class A Common Stock is being sold directly by us through our
registered securities agent after your membership has been approved by our
executive officers. No one will receive commission on the sale of any Class A
common stocks.
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<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, 1999 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 than patronage
dividends, on Class A common stock and Class B nonvoting common stock may be
declared out of our gross margins, other than 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 60-share units, and no member may acquire more than five units.
LIQUIDATION RIGHTS. If we should dissolve or liquidate the company, the
assets remaining after paying our outstanding debts 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 60 shares of Class A
common stock for each store that you own up to maximum of 300 shares for five or
more stores, that are under the same I.R.S. Employer Identification Number. 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; or
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.
Pursuant to the Company's By-laws, 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. Also, pursuant to the Company's By-laws,
the Board of Directors may delay the repurchase/redemption of stock if it
believes such action is in the best interest of the Company.
The Company has initiated a moratorium on the redemption of its stock,
which the Board of Directors will review from time to time in light of the
current financial circumstances of the Company.
STOCKHOLDERS. On September 30, 2000 there were approximately 7,610
stockholders of Class A common stock and approximately 7,074 stockholders of
Class B nonvoting common stock.
OTHER RESTRICTIONS AND RIGHTS. (a) We have no conversion rights, sinking
fund provisions or liability for further assessment in regard to the Class A
common stock.
(b) Pursuant to the terms and conditions of membership in TruServ, 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.
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<PAGE> 10
(c) There is no existing market for the Class A common stock. We have the
right of first refusal, exercisable within 90 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
<PAGE> 11
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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
Competition............................ 5
Volatile Pricing of
Merchandise/Inventory............... 5
Regional Market Variation.............. 5
Environmental.......................... 5
Moratorium on Stock Redemption......... 5
Member Base............................ 6
Access to Capital...................... 6
Key Personnel.......................... 6
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
58,508 SHARES
CLASS A COMMON STOCK
$100 PAR VALUE
(IN UNITS OF 60 SHARES)
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PROSPECTUS
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DATED
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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........... 16,000
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....................................................... $51,000
=======
</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
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
II-1
<PAGE> 13
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
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<C> <S>
*4-A By-laws of the Company, effective July 15, 2000.
4-B Specimen certificate of Class A common stock. Incorporated
by reference on Exhibit 4-B to Post-Effective Amendment No.
8 to Registration Statement on Form S-2 to Form S-4 (No.
333-18397).
4-C Specimen certificate of Class B common stock. Incorporated
by reference on Exhibit 4-C to Post-Effective Amendment No.
8 to Registration Statement on Form S-2 to Form S-4 (No.
333-18397).
4-D 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-E Installment note form. Incorporated by reference--Exhibit
4-F to Registration Statement on Form S-2 (No. 2-82836).
4-F 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-G 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-H 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-I 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-J Third Amendment to 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 on Exhibit 4-K to the registrant's
Annual Report on Form 10-K for the Fiscal year ended
December 31, 1999 (File No. 2-20910).
4-K Amended and Restated Credit Agreement dated as of April 14,
2000 for $300,000,000 Revolving Credit between TruServ
Corporation, various financial institutions, and Bank of
America. Incorporated by reference on Exhibit 4-K to
Post-Effective Amendment No. 10 to Registration Statement on
Form S-2 to Form S-4 (No. 333-18397).
</TABLE>
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<PAGE> 14
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<C> <S>
4-L 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).
4-M Amendment dated May 12, 1999 to the 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 on Exhibit
4-M to the registrant's Annual Report on Form 10-K for the
fiscal year ended December 31, 1999 (File No. 2-20910).
4-N Amendment dated April 14, 2000 to the 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 on Exhibit
4-N to Post-Effective Amendment No. 10 to Registration
Statement on Form S-2 to Form S-4 (No. 333-18397).
4-O 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-P Amendment No. 1 to Credit Agreement dated September 10, 1998
for $105,000,000 Note Purchase Agreement between TruServ
Corporation and various Purchasers. Incorporated by
reference on Exhibit 4-O to the registrant's Annual Report
on Form 10-K for the fiscal year ended December 31, 1999
(File No. 2-20910).
4-Q Amended and Restatement dated April 14, 2000 to Credit
Agreement dated September 10, 1998 for $105,000,000 Note
Purchase Agreement between TruServ Corporation and various
Purchasers. Incorporated by reference on Exhibit 4-Q to
Post-Effective Amendment No. 10 to Registration Statement on
Form S-2 to Form S-4 (No. 333-18397).
4-R 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-S 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.
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 TruServ Defined Lump Sum Pension Plan (as amended and
restated effective as of January 1, 1998). Incorporated by
reference--Exhibit 10-C to the registrant's Annual Report on
Form 10-K for the fiscal year ended December 31, 1999 (File
No. 2-20910).
*10-D TruServ Corporation Employees' Savings and Compensation
Deferral Plan (as amended and restated effective July 1,
2000).
10-E TruServ Corporation Supplemental Retirement Plan between
TruServ Corporation and selected executives of the Company
(as amended effective July 24, 1998). Incorporated by
reference on Exhibit 10-E to Registration Statement on Form
S-2 to Form S-4 (No. 333-18397).
10-F 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).
13-A Annual Report on Form 10-K for the year ended December 31,
1999. Incorporated by reference (File No. 2-20910).
</TABLE>
II-3
<PAGE> 15
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<C> <S>
13-B Quarterly Report on Form 10-Q for quarter ended September
30, 2000. Incorporated by reference (File No. 2-20910).
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.
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; and
(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 THIS POST EFFECTIVE AMENDMENT NUMBER 11 TO THE FORM S-2
AND HAS DULY CAUSED THIS POST-EFFECTIVE AMENDMENT NO. 11 ON FORM S-2 TO
REGISTRATION STATEMENT ON FORM S-4 TO BE SIGNED ON ITS BEHALF BY THE
UNDERSIGNED, THEREUNTO DULY AUTHORIZED, ON NOVEMBER 13, 2000.
TRUSERV CORPORATION
By: /s/ LEONARD G. KUHR
------------------------------------
Leonard G. Kuhr
Senior Vice President and Chief
Financial Officer
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES EXCHANGE ACT OF 1934, THIS
AMENDMENT TO REGISTRATION STATEMENT 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/ DONALD J. HOYE* President, Chief Executive November 13, 2000
----------------------------------------------------- Officer and Director
Donald J. Hoye
/s/ LEONARD G. KUHR* Senior Vice President and November 13, 2000
----------------------------------------------------- Chief Financial Officer
Leonard G. Kuhr
/s/ JOE W. BLAGG* Chairman of the Board and November 13, 2000
----------------------------------------------------- Director
Joe W. Blagg
/s/ JAMES D. BURNETT* Director November 13, 2000
-----------------------------------------------------
James D. Burnett
/s/ JAY B. FEINSOD* Director November 13, 2000
-----------------------------------------------------
Jay B. Feinsod
/s/ WILLIAM H. HOOD* Director November 13, 2000
-----------------------------------------------------
William H. Hood
/s/ JAMES D. HOWENSTINE* Director November 13, 2000
-----------------------------------------------------
James Howenstine
/s/ JERRALD T. KABELIN* Director November 13, 2000
-----------------------------------------------------
Jerrald T. Kabelin
/s/ PETER G. KELLY* Director November 13, 2000
-----------------------------------------------------
Peter G. Kelly
/s/ ROBERT J. LADNER* Director November 13, 2000
-----------------------------------------------------
Robert J. Ladner
/s/ GEORGE V. SHEFFER* Director November 13, 2000
-----------------------------------------------------
George V. Sheffer
</TABLE>
II-5
<PAGE> 17
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <S> <C>
/s/ DENNIS A. SWANSON* Director November 13, 2000
-----------------------------------------------------
Dennis A. Swanson
/s/ JOHN M. WEST, JR.* Director November 13, 2000
-----------------------------------------------------
John M. West, Jr.
/s/ BARBARA B. WILKERSON* Director November 13, 2000
-----------------------------------------------------
Barbara B. Wilkerson
Director
-----------------------------------------------------
Bryan R. Ableidinger
Director
-----------------------------------------------------
Benjamin J. Andre
Director
-----------------------------------------------------
Harold A. Douthitt
</TABLE>
*By: /s/ LEONARD G. KUHR
-------------------------------
Leonard G. Kuhr, Pursuant to
power of attorney previously
granted
II-6
<PAGE> 18
EXHIBIT 23-B
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in Post-Effective Amendment
No. 11 on Form S-2 to the Registration Statement on Form S-4 (File No.
333-18397) and related Prospectus of TruServ Corporation for the registration of
58,508 shares of Class A common stock of our report dated April 14, 2000 with
respect to the consolidated financial statements of TruServ Corporation included
in its Annual Report (Form 10-K) for the year ended December 31, 1999, filed
with the Securities and Exchange Commission.
/s/ ERNST & YOUNG LLP
Chicago, Illinois
November 9, 2000
II-7
