<PAGE>
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 1)
JP Foodservice, Inc.
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(Name of Issuer)
Common Stock, Par Value $.10 Per Share
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(Title of Class of Securities)
46623210-5
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(CUSIP Number)
Richard J. Martin
Executive Vice President and Chief Financial Officer
Rykoff-Sexton, Inc.
613 Baltimore Dr.
East Mountain Corporate Center
Wilkes-Barre, PA 18702-7944
(717) 830-7100
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(Name, Address and Telephone Number of Person Authorized to Receive Notices and
Communications)
June 30, 1997
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(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box [_].
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SCHEDULE 13D
<TABLE>
<CAPTION>
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<S> <C>
NAME OF REPORTING PERSON
1 S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Rykoff-Sexton, Inc.
I.R.S. Identification No. 95-2134693
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CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
2 (a) [_]
(b) [_]
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SEC USE ONLY
3
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SOURCE OF FUNDS*
4 WC, OO
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CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
5 REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [_]
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CITIZENSHIP OR PLACE OF ORGANIZATION
6 Delaware
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SOLE VOTING POWER
7
NUMBER OF 4,495,149 shares (1) (See Item 5)
SHARES
BENEFICIALLY -------------------------------------------------------
OWNED BY SHARED VOTING POWER
EACH
REPORTING 8
PERSON WITH
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SOLE DISPOSITIVE POWER
9 4,495,149 shares (1) (See Item 5)
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SHARED DISPOSITIVE POWER
10
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AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
11 4,495,149 shares (1) (See Item 5)
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CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (9) EXCLUDES CERTAIN SHARES*
12 [_]
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PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 9
13 16.8% (2)
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TYPE OF REPORTING PERSON
14 CO, HC
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</TABLE>
(1) The reporting person disclaims beneficial ownership of all such shares
pursuant to Rule 13d-4 under the Securities Exchange Act of 1934, as amended.
Beneficial ownership of such shares is being reported hereunder solely as a
result of the option (the "Option") granted pursuant to the JP Stock Option
Agreement described in Item 4 hereof. Rykoff-Sexton, Inc. ("RSI") expressly
disclaims any beneficial ownership of such shares of JP Common Stock which are
obtainable by RSI upon exercise of the Option because the Option is exercisable
only in the circumstances set forth in Item 4, none of which has occurred as of
the date hereof.
(2) Gives effect to the issuance of JP Common Stock subject to this option.
2
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Item 1. Security and Issuer
This statement relates to shares of common stock, par value $.10 per share
(the "JP Common Stock"), of JP Foodservice, Inc. ("JP"). The address of JP's
principal executive offices is 9830 Patuxent Woods Drive, Columbia, Maryland
21046.
Item 2. Identity and Background
(a) - (c) and (f). This Schedule 13D is being filed by Rykoff-Sexton,
Inc., a corporation organized and existing under the laws of the State of
Delaware. RSI is a distributor of food and related non-food items to
restaurants and to other food providers. RSI's principal offices are located at
613 Baltimore Dr., East Mountain Corporate Center, Wilkes-Barre, Pennsylvania
18702-6980.
Each executive officer and each director of RSI is a citizen of the United
States, other than Mark Van Stekelenburg and Jan W. Jeurgens, who are both
citizens of the Netherlands. The name, business address, and present principal
occupation of each executive officer and director is set forth in Annex A to
this Schedule 13D, which is specifically incorporated herein by reference.
Merrill Lynch Capital Partners, Inc., Merrill Lynch Capital Appreciation
Partnership No. B-XVIII, L.P., Merrill Lynch Kecalp L.P. 1994, ML Offshore LBO
Partnership No. B-XVIII, ML IBK Positions, Inc., MLCP Associates L.P. No. II,
MLCP Associates L.P. No. IV, Merrill Lynch Kecalp L.P. 1991, Merrill Lynch
Capital Appreciation Partnership No. XIII, L.P., ML Offshore LBO Partnership No.
XIII, ML Employees LBO Partnership NO. I, L.P., Merrill Lynch Kecalp L.P. 1981,
and Merchant Banking L.P. No. II (each, an "ML Entity" and collectively, the "ML
Entities") beneficially own approximately 36.4% of the outstanding RSI common
stock. However, the ML Entities have entered into a Standstill Agreement, dated
May 17, 1996, and, as a result thereof, are not deemed to be controlling persons
of RSI.
The preceding summary of the Standstill Agreement is qualified in its
entirety by reference to the full text of such agreement, which is included as
Exhibit 10.39 to RSI's Annual Report on Form 10-K for the fiscal year ended
April 27, 1996, filed July 26, 1996 ("RSI 10-K"), and is hereby incorporated
herein by reference.
(d) - (e). During the last five years, neither RSI nor, to the best
knowledge of RSI, any executive officer or director of RSI, has been (i)
convicted in a criminal proceeding (excluding traffic violations and similar
misdemeanors), or (ii) a party to a civil proceeding of a judicial or
administrative body of competent jurisdiction and as a result of such proceeding
has been or is subject to a judgment, decree or final order enjoining future
violations of, or prohibiting or mandating activities subject to, federal or
state securities laws or finding any violation with respect to such laws.
Item 3. Source and Amount of Fund or Other Consideration
Pursuant to the JP Stock Option Agreement described in Item 4 (the "JP
Stock Option Agreement"), JP has granted to RSI an option (the "Option") to
purchase up to 4,495,149 shares of JP Common Stock at a price of $30.125 per
share, exercisable only upon the occurrence of certain events. The exercise of
the Option to purchase the full number of shares of JP Common Stock currently
covered thereby would require aggregate funds of approximately $135,416,364. If
RSI were to purchase shares of JP Common Stock pursuant to the JP Stock Option
Agreement, RSI currently anticipates that such funds would be provided from
RSI's working capital and from borrowings from other sources yet to be
determined.
Item 4. Purpose of Transaction
On June 30, 1997, RSI, Hudson Acquisition Corp., a Delaware corporation and
a wholly-owned subsidiary of JP ("Acquisition Corp."), and JP entered into a
Agreement and Plan of Merger (as amended, the "Merger Agreement"), pursuant to
which RSI will be merged with and into Acquisition Corp. (the "Merger"). On
September 3, 1997, the parties to the Merger Agreement entered into Amendment
No. 1 to Merger Agreement ("Amendment No. 1").
The JP Common Stock issued and outstanding will remain issued and
outstanding shares of common stock of JP and will not be affected by the Merger.
The Merger will be a tax-free reorganization and will be accounted for as a
pooling of interests. The Merger is subject to a number of conditions set forth
in the Merger Agreement. The Merger Agreement, as originally executed and
delivered, is included as Exhibit 1 hereto and is hereby incorporated herein by
reference. Amendment No. 1 is included as Exhibit 1.1 hereto and is hereby
incorporated herein by reference.
3
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As a condition and inducement to RSI's entering into the Merger Agreement
(and a reciprocal stock option agreement), JP entered into the JP Stock Option
Agreement with RSI. Pursuant to the JP Stock Option Agreement, JP has granted
to RSI an option to purchase up to 4,495,149 shares (the "Option Shares") of JP
Common Stock at a price of $30.125 per share, exercisable only upon the
occurrence of certain events. Under certain circumstances set forth in the JP
Stock Option Agreement, RSI, as grantee of the Option, may surrender the Option
to JP in exchange for a formula payment based on the difference (reduced by the
amount of any termination fee paid by JP to RSI pursuant to the Merger
Agreement) between the price paid to JP or its stockholders in certain competing
transactions involving the acquisition of JP and exercise price of the Option.
The JP Stock Option Agreement is included as Exhibit 2 hereto and is hereby
incorporated herein by reference.
Pursuant to the Merger Agreement, upon completion of the transaction, Jim
Miller, current Chairman, President and Chief Executive Officer of JP, will be
Chairman and Chief Executive Officer of the combined company, and Mark Van
Stekelenburg, current Chairman and Chief Executive Officer of RSI, will be Vice
Chairman and President of the combined company. The company's board will
consist of the nine current JP directors, seven current RSI directors, and one
new independent director to be added after closing.
Pursuant to the Merger Agreement, JP has agreed, during the period prior to
the Merger, that neither it nor its subsidiaries shall pay dividends except for
certain intercompany dividends.
Except as stated in this Item 4, RSI has no plans or proposals which relate
to or would result in any of the matters set forth in clauses (a) through (j) of
Item 4 of Schedule 13D.
The preceding summary of certain provisions of the Merger Agreement,
Amendment No. 1 and the JP Stock Option Agreement, copies of which are filed as
exhibits hereto, is not intended to be complete and is qualified in its entirety
by reference to the full text of such agreements.
Item 5. Interest in Securities of the Issuer
(a) and (b). Pursuant to the JP Stock Option Agreement, RSI has the right,
exercisable only in certain circumstances, none of which has occurred as of the
date hereof, to acquire up to 4,495,149 shares of JP Common Stock, which
represents beneficial ownership of approximately 19.9% of the shares of JP
Common Stock currently outstanding. If RSI were to acquire such shares, it
would have sole voting and, subject to certain restrictions set forth in the JP
Stock Option Agreement, investment power with respect thereto. Because of the
limited circumstances in which the option granted under the JP Stock Option
Agreement is exercisable, RSI disclaims beneficial ownership of such shares of
JP Common Stock subject to the JP Stock Option Agreement.
To the best of RSI's knowledge, no executive officer or director of RSI
beneficially owns any shares of JP Common Stock.
(c) Except to the extent of transactions in a fiduciary capacity, there
have been no transactions in shares of JP Common Stock by RSI, or, to the best
knowledge of RSI, any of RSI's executive officers and directors during the past
60 days.
(d) To the best of RSI's knowledge, no other person has the right to
receive or the power to direct the receipt of dividends from, or the proceeds
from the sale of, the JP Common Stock.
(e) Not applicable.
Item 6. Contracts, Arrangements, Understandings or Relationships with Respect
to Securities of the Issuer
On June 30, 1997, in connection with the execution of the Merger Agreement,
the ML Entities, who hold in the aggregate approximately 36.4% of the
outstanding shares (the "ML Shares") of RSI Common Stock as of such date,
entered into a Support Agreement (as amended and restated, the "Support
Agreement"), dated as of June 30, 1997, with JP, and acknowledged by RSI.
Pursuant to the Support Agreement, inter alia, the ML Entities have agreed not
----------
to take certain actions during the term of the Support Agreement relating to the
disposition of the businesses or assets of JP or RSI or their respective
subsidiaries, or the acquisition of the voting securities of JP or RSI or their
respective subsidiaries, or the merger or consolidation of JP or RSI or any of
their respective subsidiaries with or into any corporation or other entity,
other than the Merger or related transactions. The Support Agreement will
terminate in the event that the Merger Agreement is terminated in accordance
with its terms.
The preceding summary of the Support Agreement is qualified in its entirety
by reference to the full text of such Support Agreement, which is included as
Exhibit 3 hereto and is hereby incorporated herein by reference.
4
<PAGE>
A copy of the JP Stock Option Agreement is included as Exhibit 2 hereto and
is incorporated herein by reference. The rights and obligations of RSI and JP
under the JP Stock Option Agreement are subject to all required regulatory
approvals.
A copy of the Merger Agreement is included as Exhibit 1 hereto and a Copy
of Amendment No. 1 is included as Exhibit 1.1 hereto, and each is incorporated
herein by reference.
Except as set forth in Items 3, 4, 5 and 6 neither RSI nor, to the best
knowledge of RSI, any of its directors or executive officers, has any contracts,
arrangements, understandings or relationships (legal or otherwise) with any
other person with respect to any securities of JP.
Item 7. Material to Be Filed as Exhibits
1. Agreement and Plan of Merger, dated as of June 30, 1997, by and between
Rykoff-Sexton, Inc., Hudson Acquisition Corp. and JP Foodservice, Inc.
(incorporated by reference to Exhibit 1 to the Schedule 13D of Rykoff-
Sexton, Inc. filed on July 10, 1997).
1.1. Amendment No. 1 to Agreement and Plan of Merger, dated as of September
3, 1997, by and among Rykoff-Sexton, Inc., JP Foodservice, Inc., and
Hudson Acquisition Corp.
2. Stock Option Agreement, dated as of June 30, 1997, by and between JP
Foodservice, Inc., as issuer, and Rykoff-Sexton, Inc., as grantee
(incorporated by reference to Exhibit 2 to the Schedule 13D of Rykoff-
Sexton, Inc. filed on July 10, 1997).
3. Amended and Restated Support Agreement, dated as of June 30, 1997, by
and between JP Foodservice, Inc., on the one hand, and the stockholders
of Rykoff-Sexton, Inc. listed on the signature pages thereto, on the
other hand, and acknowledged by Rykoff-Sexton, Inc.
4. Standstill Agreement, dated May 17, 1996, by and between Rykoff-Sexton,
Inc., on the one hand, and the other Persons set forth on the signature
pages thereto, on the other hand (incorporated by reference to Exhibit
10.39 of the RSI 10-K).
5. Stock Option Agreement, dated as of June 30, 1997, by and between
Rykoff-Sexton, Inc., as issuer, and JP Foodservice, Inc., as grantee
(incorporated by reference to Exhibit 99.2 of the RSI Form 8-K, filed
July 10, 1997, dated as of June 30, 1997).
Signature
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
RYKOFF-SEXTON, INC.
September 15, 1997 By: /s/ Richard J. Martin
-------------------------- ----------------------------------
Date Richard J. Martin
Executive Vice President and
Chief Financial Officer
5
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ANNEX A
Identity and Background
-----------------------
The following table sets forth the names, addresses and principal
occupations of the executive officers and directors of Rykoff-Sexton, Inc.
("RSI"). Except as set forth below, the principal business address of each
director and executive officer is the address of RSI, 613 Baltimore Dr., East
Mountain Corporate Center, Wilkes-Barre, Pennsylvania 18702-6944. Each of such
directors and executive officers is a citizen of the United States, other than
Mark Van Stekelenburg and Jan W. Jeurgens, who are both citizens of the
Netherlands.
<TABLE>
<CAPTION>
Directors
Name and Business Address Present Principal Occupation or Employment
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<S> <C>
Mark Van Stekelenburg Chairman of the Board, President and CEO of
Rykoff-Sexton, Inc.
Matthias B. Bowman Vice Chairman of Investment Banking at Merrill
World Financial Center, Lynch & Co., Inc. and President of
North Tower Merrill Lynch Capital Partners; Director
250 Vesey St. of SMG II Holdings Corporation
New York, NY 10281
Richard Fink Chairman of G & K Services, Inc.
5995 Opus Parkway
Minnetonka, MN 55343
Albert J. Fitzgibbons, III Partner of Stonington Partners,
767 Fifth Avenue, 48th Floor Inc.; Director of Borg-Warner
New York, NY 10153 Automotive, Inc., Borg-Warner Security
Corporation, Dictaphone Corporation
and United Artists Theatre Circuit, Inc.
Jan W. Jeurgens Retired
Sunil C. Khanna Consultant to Merrill Lynch Capital Partners;
767 Fifth Avenue, 48th Floor Director of Pathmark Stores, Inc. and
New York, NY 10153 Supermarkets General Holdings Corporation
James I. Maslon Retired
James P. Miscoll Director of American International Group, Inc.,
Coast Federal Financial, Inc., MK Gold Company,
MotivePower Industries, Inc. and U.S. Rentals,
Inc.
Neil I. Sell Partner in the law firm of Maslon Edelman Borman &
3300 Norwest Center Brand, L.L.P.; Director of Grand Casinos, Inc.
90 South Seventh Street
Minneapolis, MN 55402-4140
Bernard Sweet Director of G & K Services, Inc.
Robert W. Williamson President & CEO of Merrill Lynch International
World Financial Center, Banks
North Tower
250 Vesey Street
New York, NY 10281
</TABLE>
6
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<TABLE>
<CAPTION>
Executive Officers
Name and Business Address Present Principal Occupation or Employment
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<S> <C>
Mark Van Stekelenburg Chairman of the Board, President and CEO of
Rykoff-Sexton, Inc.
Harold E. Feather Executive Vice President, Strategic Planning of
Rykoff-Sexton, Inc. and Executive Vice President,
Operations of Rykoff-Sexton, Inc.'s Distribution
Division
William J. Caskey Executive Vice President of Rykoff-Sexton, Inc.
and Chief Executive Officer of Rykoff-Sexton,
Inc.'s Marketing Division
Robert J. Harter, Jr. Senior Vice President, Administration, General
Counsel and Secretary of Rykoff-Sexton, Inc.
Richard J. Martin Executive Vice President and Chief Financial
Officer of Rykoff-Sexton, Inc.
Timothy Buckley Vice President of Rykoff-Sexton, Inc. and
President of Rykoff-Sexton, Inc.'s Targeted
Specialty Services, Inc. subsidiary
Kenneth B. Kozel Vice President and Treasurer of Rykoff-Sexton,
Inc.
Christopher Mellon Vice President and Controller of Rykoff-Sexton,
Inc.
</TABLE>
7
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<TABLE>
<CAPTION>
Exhibit Number Description
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<S> <C>
1. Agreement and Plan of Merger, dated as of June 30, 1997, by and
between Rykoff-Sexton, Inc., Hudson Acquisition Corp. and JP
Foodservice, Inc. (incorporated by reference to Exhibit 1 to
the Schedule 13D of Rykoff-Sexton, Inc. filed on July 10,
1997).
1.1. Amended No. 1 to Agreement and Plan of Merger, dated as of
September 3, 1997, by and among Rykoff-Sexton, Inc., JP
Foodservice, Inc. and Hudson Acquisition Corp.
2. Stock Option Agreement, dated as of June 30, 1997, by and
between JP Foodservice, Inc., as issuer, and Rykoff-Sexton,
Inc., as grantee (incorporated by reference to Exhibit 2 to the
Schedule 13D of Rykoff-Sexton, Inc. filed on July 10, 1997).
3. Amended and Restated Support Agreement, dated as of June 30,
1997, by and between JP Foodservice, Inc., on the one hand, and
the stockholders of Rykoff-Sexton, Inc. listed on the signature
pages thereto, on the other hand, and acknowledged by Rykoff-
Sexton, Inc.
4. Standstill Agreement, dated May 17, 1996, by and between
Rykoff-Sexton, Inc., on the one hand, and the other Persons
set forth on the signature pages thereto, on the other hand
(incorporated by reference to Exhibit 10.39 of the RSI 10-K).
5. Stock Option Agreement, dated as of June 30, 1997, by and
between Rykoff-Sexton, Inc., as issuer, and JP Foodservice,
Inc., as grantee (incorporated by reference to Exhibit 99.2 of
the RSI Form 8-K, filed July 10, 1997, dated as of June 30,
1997).
</TABLE>
8
<PAGE>
EXHIBIT 1.1
CONFORMED COPY
AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF MERGER
AMENDMENT NO. 1 (this "Amendment"), dated as of September 3, 1997, to the
Agreement and Plan of Merger (the "Merger Agreement"), dated as of June 30,
1997, by and among JP Foodservice, Inc., a Delaware corporation ("JPFI"),
Rykoff-Sexton, Inc., a Delaware corporation ("RSI"), and Hudson Acquisition
Corp., a Delaware corporation and a wholly-owned subsidiary of JP Foodservice
("Acquisition").
WHEREAS, JPFI, RSI and Acquisition have previously executed and delivered
the Merger Agreement; and
WHEREAS, JPFI, RSI and Acquisition desire to amend the Merger Agreement as
set forth herein and pursuant to Section 7.3 thereof;
NOW, THEREFORE, JPFI, RSI and Acquisition agree as follows:
1. Amendment of Section 2.1(e) of Merger Agreement. The fourth line of
subsection (i) of Section 2.1(e) of the Merger Agreement is hereby amended by
deleting therefrom the word "exercisable" and substituting in its place the word
"unexercised".
2. Amendment of Section 4.1(a) of Merger Agreement. Subsection (ii) of
Section 4.1(a) of the Merger Agreement is hereby amended by deleting therefrom
the words "does not exceed 250,000 shares of RSI Common Stock in the
aggregate);" and substituting therefor the words "does not exceed the lesser of
(x) 400,000 shares of RSI Common Stock in the aggregate and (y) the number of
shares of RSI Common Stock subject to RSI Employee Stock Options issued during
RSI's fiscal year ended June 28, 1997 and so long as no RSI Employee Stock
Option issued pursuant to this Section 4.1(a) (ii) shall contain any terms
providing for, or otherwise permit or give rise to any right to, accelerated
vesting, the releasing of restrictions or any payment (in cash or otherwise) as
a result of the consummation of the Merger or any of the other transactions
contemplated by this Agreement)".
3. Governing Law. This Amendment shall be governed by, and construed in
accordance with, the laws of the State of Delaware, regardless of the laws that
might otherwise govern under applicable principles of conflict of laws thereof.
4. Counterparts. This Amendment may be executed in one or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when one or more counterparts have been signed by each of
the parties and delivered to the other parties.
<PAGE>
5. Merger Agreement Confirmed. Except as amended hereby, the Merger
Agreement is ratified and confirmed in all respects.
IN WITNESS WHEREOF, JPFI, RSI and Acquisition have caused this Agreement to
be signed by their respective officers thereunto duly authorized, all as of the
date first written above.
JP FOODSERVICE, INC.
By:/s/ David M. Abramson
---------------------
Name: David M. Abramson
Title: Senior Vice President and General
Counsel
RYKOFF-SEXTON, INC.
By:/s/ Mark Van Stekelenburg
-------------------------
Name: Mark Van Stekelenburg
Title: Chairman and Chief Executive Officer
HUDSON ACQUISITION CORP.
By:/s/ David M. Abramson
---------------------
Name: David M. Abramson
Title: Senior Vice President and General
Counsel
[Amendment No. 1--Merger Agreement]
2
<PAGE>
EXHIBIT 3
CONFORMED COPY
AMENDED AND RESTATED SUPPORT AGREEMENT
--------------------------------------
AMENDED AND RESTATED AGREEMENT, dated as of June 30, 1997, by and among JP
FOODSERVICE, INC., a Delaware corporation ("JPFI") and the other persons whose
names are set forth on the signature pages hereto (collectively, the
"Stockholders").
WHEREAS, the parties hereto have previously entered into, and Rykoff-
Sexton, Inc., a Delaware corporation ("Rykoff-Sexton"), has previously
acknowledged, a Support Agreement, dated as of June 30, 1997 (the "Original
Support Agreement"); and
WHEREAS, concurrently with the execution and delivery of the Original
Support Agreement, JPFI, Hudson Acquisition Corp., a Delaware corporation and a
wholly-owned subsidiary of JPFI ("Merger Sub") and Rykoff-Sexton, entered into
an Agreement and Plan of Merger (the "Merger Agreement"; capitalized terms used
without definition herein having the meanings ascribed thereto in the Merger
Agreement);
WHEREAS, the Stockholders are the beneficial owners of the number of shares
of Rykoff Common Stock set forth in Schedule I hereto (the "Subject Shares");
and
WHEREAS, approval of the Merger Agreement by the stockholders of Rykoff is
a condition to the consummation of the Merger; and
WHEREAS, as a condition to its entering into the Merger Agreement, JPFI has
required that the Stockholders agree, and the Stockholders have agreed, to enter
into the Original Support Agreement; and
WHEREAS, the parties to the Original Support Agreement, and Rykoff-Sexton,
wish to amend and restate such Original Support Agreement, as set forth herein;
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements set forth herein, the parties hereto agree as follows:
<PAGE>
Section 1. Agreement to Vote. (a) Each Stockholder hereby agrees to attend
the Rykoff Stockholders Meeting, in person or by proxy, and to vote (or cause to
be voted) all Subject Shares, and any other voting securities of Rykoff, whether
issued heretofore or hereafter, that such Stockholder owns or has the right to
vote, for approval and adoption of the Merger Agreement and the Merger. Such
agreement to vote shall apply also to any adjournment or adjournments of the
Rykoff Stockholders Meeting, and to any other meeting of stockholders at which
any item of business referred to in the preceding sentence is presented for
approval.
(b) To the extent inconsistent with the foregoing provisions of this
Section 1, each Stockholder hereby revokes any and all previous proxies with
respect to such Stockholder's Subject Shares or any other voting securities of
Rykoff.
Section 2. No Solicitation. No Stockholder shall, directly or indirectly,
solicit or encourage (including by way of furnishing information), or authorize
any individual, corporation or other entity to solicit or encourage (including
by way of furnishing information), from any third party any inquiries or
proposals relating to, or conduct negotiations or discussions with any third
party with respect to, or take any other action to facilitate any inquiries or
the making of any proposal that constitutes, or that may reasonably be expected
to lead to, any proposal or offer relating to the disposition of business or
assets of Rykoff or JPFI or their respective subsidiaries, or the acquisition of
the voting securities of Rykoff or JPFI or their respective subsidiaries, or the
merger or consolidation of Rykoff or JPFI or any of their respective
subsidiaries with or to any corporation or other entity other than as provided
in the Merger Agreement, the Option Agreements or the Support Agreement (and the
Stockholders shall promptly notify JPFI of all of the relevant details relating
to all inquiries and proposals which such Stockholders may receive relating to
any such matters).
Section 3. Securities Act Covenants and Representations. Each Stockholder
hereby agrees and represents to JPFI as follows:
(a) Such Stockholder has been advised that the offering, sale and delivery
of JPFI Common Stock pursuant to the
2
<PAGE>
Merger will be registered under the Securities Act on a Registration Statement
on Form S-4. Such Stockholder has also been advised, however, that to the extent
such Stockholder is considered an "affiliate" of Rykoff at the time the Merger
Agreement is submitted to a vote of the stockholders of Rykoff any public
offering or sale by such Stockholder of any shares of JPFI Common Stock received
by such Stockholder in the Merger will, under current law, require either (i)
the further registration under the Securities Act of any shares of JPFI Common
Stock to be sold by such Stockholder, (ii) compliance with Rule 145 promulgated
by the SEC under the Securities Act or (iii) the availability of another
exemption from such registration under the Securities Act.
(b) Such Stockholder has read this Agreement and the Merger Agreement and
has discussed their requirements and other applicable limitations upon such
Stockholder's ability to sell, transfer or otherwise dispose of shares of JPFI
Common Stock, to the extent such Stockholder believed necessary, with such
Stockholder's counsel or counsel for Rykoff.
(c) Such Stockholder also understands that stop transfer instructions will
be given to JPFI's transfer agent with respect to JPFI Common Stock and that a
legend will be placed on the certificates for the JPFI Common Stock issued to
such Stockholder, or any substitutions therefor, to the extent such Stockholder
is considered an "affiliate" of Rykoff at the time the Merger Agreement is
submitted to a vote of the stockholders of Rykoff.
Section 4. Pooling Covenants and Representations. Each Stockholder hereby
agrees and represents to JPFI that such Stockholder will not sell, transfer or
otherwise dispose of any securities of Rykoff or of any shares of JPFI Common
Stock received by such Stockholder in the Merger or other shares of capital
stock of JPFI during the period beginning 30 days prior to the Effective Time
and ending at such time as results covering at least 30 days of combined
operations of Rykoff and JPFI have been published by JPFI, in the form of a
quarterly earnings report, an effective registration statement filed with the
SEC, a report to the SEC on Form 10-K, 10-Q or 8-K, or any other public filing
or announcement which includes the combined results of operations, except for
transfers or other dispositions that, taking into account the actions of other
affiliates of Rykoff,
3
<PAGE>
will not prevent JPFI from accounting for the Merger as a pooling of interests.
Section 5. Further Assurances. Each of JPFI and the Stockholders shall
execute and deliver such additional instruments and other documents and shall
take such further actions as may be necessary or appropriate to effectuate,
carry out and comply with all of its obligations under this Agreement. Without
limiting the generality of the foregoing, none of JPFI or any of the
Stockholders shall enter into any agreement or arrangement (or alter, amend or
terminate any existing agreement or arrangement) if such action would materially
impair the ability of any party to effectuate, carry out or comply with all the
terms of this Agreement.
Section 6. Representations and Warranties of JPFI. JPFI represents and
warrants to each Stockholder as follows: Each of this Agreement and the Merger
Agreement has been approved by the Board of Directors of JPFI, representing all
necessary corporate action on the part of JPFI other than approval of the Merger
Agreement by the stockholders of JPFI. Each of this Agreement and the Merger
Agreement has been duly executed and delivered by a duly authorized officer of
JPFI. Each of this Agreement and the Merger Agreement constitutes a valid and
binding agreement of JPFI, enforceable against JPFI in accordance with its
terms, except as may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium and other similar laws of general application which
may affect the enforcement of creditors' rights generally and by general
equitable principles. JPFI covenants and agrees that, effective as of the
Effective Time, JPFI shall assume the rights and obligations of Rykoff under
that certain Registration Rights Agreement, dated as of May 17, 1996, by and
among Rykoff and the other persons whose signatures are set forth on the
signature pages thereto pursuant to an agreement in form and substance
satisfactory to JPFI and such other persons.
Section 7. Representations and Warranties of Stockholders. Each Stockholder
represents and warrants to JPFI that this Agreement (i) has been duly
authorized, executed and delivered by such Stockholder and (ii) constitutes the
valid and binding agreement of such Stockholder, enforceable against such
Stockholder in accordance with its terms, except as may be
4
<PAGE>
limited by applicable bankruptcy, insolvency, reorganization, moratorium and
other similar laws of general application which may affect the enforcement of
creditors' rights generally and by general equitable principles. Each such
Stockholder is the record and beneficial owner of the Subject Shares set forth
opposite its respective name on Schedule I. The Subject Shares listed next to
the name of such Stockholder on Schedule I hereto are the only voting securities
of Rykoff owned (beneficially or of record) by such Stockholder. Neither the
execution or delivery of this Agreement nor the consummation by such Stockholder
of the transactions contemplated hereby will violate (a) the certificate of
incorporation, by-laws, partnership agreement or other organizational document,
as applicable, of any such Stockholder, or (b) any provisions of any law, rule
or regulation applicable to such Stockholder or any contract or agreement to
which such Stockholder is a party, other than such violations described in the
foregoing clause (b) as would not prevent or materially delay the performance by
such Stockholder of its obligations hereunder or impose any liability or
obligation on JPFI. Each Stockholder agrees that, at or prior to the Effective
Time, it shall represent to Rykoff and JPFI or their respective counsel that as
of the Effective Time it has no plan or intention to (other than incident or
pursuant to an Extraordinary Transaction) sell, exchange or otherwise dispose
of, or enter into an agreement (a "Sales Agreement") to sell, exchange or
otherwise dispose of, shares of JPFI Common Stock during the two-year period
immediately following the Effective Time, and moreover that it is not subject to
or obligated to enter into any agreement to sell, exchange or otherwise dispose
of shares of JPFI Common Stock, if any resulting sale, exchange or disposition
would (when taken in combination with actions by other Stockholders and assuming
all Sales Agreements are consummated) cause the Stockholders in the aggregate to
retain ownership for federal income tax purposes of less than the lesser of (i)
25% of the shares of JPFI Common Stock received by the Stockholders in the
aggregate in the Merger or (ii) the Shortfall Percent of the shares of JPFI
Common Stock issued in the Merger to stockholders of Rykoff. For purposes of
these representations, the phrase "sell, exchange or otherwise dispose of" shall
include entry into transactions whereby a Stockholder gives up substantially all
the benefits and burdens of ownership in JPFI Common Stock or which otherwise
constitute a transfer of ownership of such stock for federal income tax
purposes. "Shortfall Percent" shall mean the greater of zero or that percentage
which, when added to the following percentage, shall equal 45%: 100% minus the
sum of (i) the percent of shares of JPFI Common Stock issuable in the Merger to
stockholders of
5
<PAGE>
Rykoff that is issuable to the Stockholders and (ii) the percent of shares of
JPFI Common Stock issuable in the Merger to stockholders of Rykoff that is
issuable to any other persons that can be identified immediately prior to the
Effective Time as holding 5% or more of the total number of shares of Rykoff
Common Stock outstanding at such time (for which purposes shares held by a
family of mutual funds shall, to the extent possible, be identified with
separate funds within such family and, to the extent so separately identifiable,
treated as separate stockholders). Notwithstanding the foregoing, no Stockholder
shall be required to provide the representations described herein if, as result
of a change in law (including, without limitation, a change pursuant to Treasury
regulations that may be applied, by election or otherwise, to the Merger), the
facts intended to be reached by such representation are not a necessary
condition for qualification of the Merger under Section 368 of the Internal
Revenue Code of 1986, as amended.
For purposes of this Section 7, an "Extraordinary Transaction" means a
merger, consolidation or other business combination, tender or exchange offer,
share exchange, restructuring, recapitalization or other similar transaction
involving JPFI, so long as any such transaction is not arranged as part of an
overall plan to which such Stockholder is a party and pursuant to which the
Merger is also being consummated.
Section 8. Effectiveness and Termination. It is a condition precedent to
the effectiveness of this Agreement that the Merger Agreement shall have been
executed and delivered and be in full force and effect. In the event the Merger
Agreement is terminated in accordance with its terms, this Agreement shall
automatically terminate and be of no further force or effect. Upon such
termination, except for any rights any party may have in respect of any breach
by any other party of its or his obligations hereunder, none of the parties
hereto shall have any further obligation or liability hereunder.
Section 9. Miscellaneous.
--------------
(a) Notices, Etc. All notices, requests, demands or other communications
required by or otherwise with respect to this Agreement shall be in writing and
shall be deemed to have been duly given to any party when delivered personally
(by courier service or otherwise), when delivered by telecopy and confirmed by
return telecopy, or seven days after being mailed by
6
<PAGE>
first-class mail, postage prepaid in each case to the applicable addresses set
forth below:
If to JPFI:
9830 Patuxent Woods Drive
Columbia, Maryland 21046
Attn: David M. Abramson, Esq.
Telecopy: (410) 312-7149
with a copy to:
Wachtell, Lipton, Rosen & Katz
51 West 52nd Street
New York, New York 10019
Attn: Edward D. Herlihy, Esq. Telecopy: (212) 403-2000
If to any Stockholder:
Merrill Lynch Capital Partners, Inc.
225 Liberty Street
New York, New York 10080-6123
Attn: James V. Caruso
Telecopy: (212) 236-7364
with a copy to:
Merrill Lynch & Co., Inc.
World Financial Center
North Tower
250 Vesey Street
New York, New York 10281-1323
Attn: Marcia L. Tu, Esq.
Telecopy: (212) 449-3207
and a copy to:
Shearman & Sterling
599 Lexington Avenue
New York, New York 10022
Attn: Bonnie Greaves, Esq.
Telecopy: (212) 848-7179
7
<PAGE>
If to Rykoff:
Rykoff-Sexton, Inc.
1050 Warrenville Road
Lisle, Illinois
Telecopy No. (717) 830-7112
Attention: Robert J. Harter, Jr., Esq.
with a copy to:
Jones, Day, Reavis & Pogue
77 West Wacker
Chicago, Illinois 10022
Telecopy No.: (312) 782-8585
Attention: Elizabeth Kitslaar, Esq.
or to such other address as such party shall have designated by notice so given
to each other party.
(b) Amendments, Waivers. Etc. This Agreement may not be amended, changed,
supplemented, waived or otherwise modified or terminated except by an instrument
in writing signed by JPFI, each of the Stockholders and Rykoff.
(c) Successors and Assigns. This Agreement shall be binding upon and shall
inure to the benefit of and be enforceable by the parties and their respective
successors and assigns, including without limitation in the case of any
corporate party hereto any corporate successor by merger or otherwise, and in
the case of any individual party hereto any trustee, executor, heir, legatee or
personal representative succeeding to the ownership of such party's Subject
Shares or other securities subject to this Agreement. Notwithstanding any
transfer of Subject Shares, the transferor shall remain liable for the
performance of all obligations under this Agreement of the transferor.
(d) Entire Agreement. This Agreement embodies the entire agreement and
understanding among the parties relating to the subject matter hereof and
supersedes all prior agreements and understandings relating to such subject
matter, including without limitation the Original Support Agreement. There are
no representations, warranties or covenants by the parties hereto relating to
such subject matter other than those expressly set forth in this Agreement.
8
<PAGE>
(e) Severability. If any term of this Agreement or the application thereof
to any party or circumstance shall be held invalid or unenforceable to any
extent, the remainder of this Agreement and the application of such term to the
other parties or circumstances shall not be affected thereby and shall be
enforced to the greatest extent permitted by applicable law, provided that in
such event the parties shall negotiate in good faith in an attempt to agree to
another provision (in lieu of the term or application held to be invalid or
unenforceable) that will be valid and enforceable and will carry out the
parties' intentions hereunder.
(f) Specific Performance. The parties acknowledge that money damages are
not an adequate remedy for violations of this Agreement and that any party may,
in its sole discretion, apply to a court of competent jurisdiction for specific
performance or injunctive or such other relief as such court may deem just and
proper in order to enforce this Agreement or prevent any violation hereof and,
to the extent permitted by applicable law, each party waives any objection to
the imposition of such relief.
(g) Remedies Cumulative. All rights, powers and remedies provided under
this Agreement or otherwise available in respect hereof at law or in equity
shall be cumulative and not alternative, and the exercise or beginning of the
exercise of any thereof by any party shall not preclude the simultaneous or
later exercise of any other such right, power or remedy by such party.
(h) No Waiver. The failure of any party hereto to exercise any right, power
or remedy provided under this Agreement or otherwise available in respect hereof
at law or in equity, or to insist upon compliance by any other party hereto with
its obligations hereunder, and any custom or practice of the parties at variance
with the terms hereof, shall not constitute a waiver by such party of its right
to exercise any such or other right, power or remedy or to demand such
compliance.
(i) No Third-Party Beneficiaries. This Agreement is not intended to be for
the benefit of and shall not be en forceable by any person or entity who or
which is not a party hereto.
(j) Jurisdiction. Each party hereby irrevocably submits to the exclusive
jurisdiction of the Court of Chancery in the State of Delaware or the United
States District Court for the
9
<PAGE>
Southern District of New York or any court of the State of New York located in
the City of New York in any action, suit or proceeding arising in connection
with this Agreement, and agrees that any such action, suit or proceeding shall
be brought only in such court (and waives any objection based on forum non
conveniens or any other objection to venue therein); provided, however, that
such consent to jurisdiction is solely for the purpose referred to in this
paragraph (j) and shall not be deemed to be a general submission to the
jurisdiction of said Courts or in the States of Delaware or New York other than
for such purposes. Each party hereto hereby waives any right to a trial by jury
in connection with any such action, suit or proceeding.
(k) Governing Law. This Agreement and all disputes hereunder shall be
governed by and construed and enforced in accordance with the General
Corporation Law of the State of Delaware to the fullest extent possible and
otherwise by the internal laws of the State of New York without regard to
principles of conflicts of law.
(l) Name, Captions Gender. The name assigned this Agreement and the section
captions used herein are for convenience of reference only and shall not affect
the interpretation or construction hereof. Whenever the context may require, any
pronoun used herein shall include the corresponding masculine, feminine or
neuter forms.
(m) Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one instrument. Each counterpart may consist of a
number of copies each signed by less than all, but together signed by all, the
parties hereto.
(n) Limitation on Liability. No Stockholder shall have any liability
hereunder for any actions or omissions of any other Stockholder.
(o) Expenses. JPFI and Rykoff shall each bear its own expenses, and Rykoff
shall bear the reasonable expenses of the Stockholders, incurred in connection
with this Agreement and the transactions contemplated hereby, except that in the
event of a dispute concerning the terms or enforcement of this Agreement, the
prevailing party in any such dispute shall be entitled to reimbursement of
reasonable legal fees and disbursements from the other party or parties to such
dispute.
10
<PAGE>
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the
date first above written.
JP FOODSERVICE, INC.
By: /s/ James L. Miller
---------------------
Name: James L. Miller
Title: Chairman,
President and Chief
Executive Officer
MERRILL LYNCH CAPITAL PARTNERS, INC.
By: /s/ Matthias B. Bowman
----------------------
Name: Matthias B. Bowman
Title:
MERRILL LYNCH CAPITAL APPRECIATION
PARTNERSHIP NO. B-XVIII, L.P.
By: Merrill Lynch LBO Partners
No. B-IV, L.P., as General
Partner
By: Merrill Lynch Capital
Partners, Inc., as General
Partner
By: /s/ Matthias B. Bowman
--------------------------
Name: Matthias B. Bowman
Title:
[AMENDED AND RESTATED SUPPORT AGREEMENT]
<PAGE>
MERRILL LYNCH KECALP L.P. 1994
By: KECALP Inc., as General
Partner
By: /s/ Matthias B. Bowman
----------------------
Name: Matthias B. Bowman
Title:
ML OFFSHORE LBO PARTNERSHIP
NO. B-XVIII
By: Merrill Lynch LBO Partners
No. B-IV, L.P., as Investment
General Partner
By: Merrill Lynch Capital
Partners, Inc., as General
Partner
By: /s/ Matthias B. Bowman
------------------------
Name: Matthias B. Bowman
Title:
ML IBK POSITIONS, INC.
By: /s/ Matthias B. Bowman
-------------------------
Name: Matthias B. Bowman
Title:
MLCP ASSOCIATES L.P. NO. II
By: Merrill Lynch Capital
Partners, Inc., as General
Partner
By: /s/ Matthias B. Bowman
-------------------------
Name: Matthias B. Bowman
[AMENDED AND RESTATED SUPPORT AGREEMENT]
<PAGE>
Title:
MLCP ASSOCIATES L.P. NO. IV
By: Merrill Lynch Capital
Partners, Inc., as General
Partner
By: /s/ Matthias B. Bowman
----------------------
Name: Matthias B. Bowman
Title:
MERRILL LYNCH KECALP L.P. 1991
By: KECALP Inc., as General
Partner
By: /s/ Matthias B. Bowman
----------------------
Name: Matthias B. Bowman
Title:
MERRILL LYNCH CAPITAL APPRECIATION
PARTNERSHIP NO. XIII, L.P.
By: Merrill Lynch LBO Partners
No. IV, L.P., as General
Partner
By: Merrill Lynch Capital
Partners, Inc., as General
Partner
By: /s/ Matthias B. Bowman
----------------------
Name: Matthias B. Bowman
Title:
ML OFFSHORE LBO PARTNERSHIP
NO. XIII
By: Merrill Lynch LBO Partners
No. IV, L.P., as Investment
General Partner
[AMENDED AND RESTATED SUPPORT AGREEMENT]
<PAGE>
By: Merrill Lynch Capital Partners, Inc.,
as General Partner
By: /s/ Matthias B. Bowman
----------------------
Name: Matthias B. Bowman
Title:
ML EMPLOYEES LBO PARTNERSHIP NO. I, L.P.
By: ML Employees LBO Managers, Inc.,
as General Partner
By: /s/ Matthias B. Bowman
----------------------
Name: Matthias B. Bowman
Title:
[AMENDED AND RESTATED SUPPORT AGREEMENT]
<PAGE>
MERRILL LYNCH KECALP L.P. 1987
By: KECALP Inc., as General Partner
By: /s/ Matthias B. Bowman
----------------------
Name: Matthias B. Bowman
Title:
MERCHANT BANKING L.P. NO. II
By: Merrill Lynch MBP Inc., as General
Partner
By: /s/ Matthias B. Bowman
----------------------
Name: Matthias B. Bowman
Title:
Rykoff hereby consents to the entry by each Stockholder into this
Agreement, and the consummation of the transactions expressly contemplated
hereby, in each case for purposes of Section 3.1(a) of the that certain
Standstill Agreement (the "Standstill Agreement"), dated as of May 17, 1996, by
and between RSI and the ML Entities (as defined therein). Rykoff represents and
warrants to JPFI that the entry by each Stockholder into this Agreement, and the
consummation of the transactions expressly contemplated hereby, each has been
previously approved by the affirmative vote of a majority of the Continuing
Directors (as defined in the Standstill Agreement) of Rykoff at a meeting at
which a Continuing Director Quorum (as defined in the Standstill Agreement) was
present. Rykoff also hereby acknowledges and consents to its obligations
pursuant to Section 9(o) hereof.
RYKOFF-SEXTON, INC.
By: /s/ Mark Van Stekelenburg
-------------------------
Name: Mark Van Stekelenburg
Title: Chairman and Chief Executive Officer
[AMENDED AND RESTATED SUPPORT AGREEMENT]
<PAGE>
Schedule I
----------
Share Ownership
Name of Stockholder Shares Owned Beneficially
- ------------------- -------------------------
<TABLE>
<CAPTION>
<S> <C>
MERRILL LYNCH CAPITAL APPRECIATION 4,357,505
PARTNERSHIP NO. B-XVIII, L.P.
MERRILL LYNCH KECALP L.P. 1994 67,879
ML OFFSHORE LBO PARTNERSHIP 2,192,382
NO. B-XVIII
ML IBK POSITIONS, INC. 1,440,181
MLCP ASSOCIATES L.P. NO. II 52,257
MLCP ASSOCIATES L.P. NO. IV 13,575
MERRILL LYNCH KECALP L.P. 1991 189,793
MERRILL LYNCH CAPITAL APPRECIATION 1,620,103
PARTNERSHIP NO. XIII, L.P.
ML OFFSHORE LBO PARTNERSHIP NO. XIII 41,188
ML EMPLOYEES LBO PARTNERSHIP 40,273
NO. I, L.P.
MERRILL LYNCH KECALP L.P. 1987 30,434
MERCHANT BANKING L.P. NO. II 30,434
</TABLE>
