<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 30, 1999.
REGISTRATION NO. 333-33225
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
POST-EFFECTIVE
AMENDMENT NO. 2
ON
FORM S-1
TO
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
AMERISERVE FOOD DISTRIBUTION, INC.*
(EXACT NAME OF REGISTRANT SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C> <C>
DELAWARE 5142 75-2296149
(STATE OR OTHER JURISDICTION OF (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) CLASSIFICATION CODE NUMBER) IDENTIFICATION NUMBER)
</TABLE>
15305 DALLAS PARKWAY
ADDISON, TEXAS 75001
(972) 364-2000
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF THE
COMPANY'S PRINCIPAL EXECUTIVE OFFICES)
------------------------
<TABLE>
<S> <C>
KEVIN J. ROGAN COPIES OF ALL COMMUNICATIONS TO:
SENIOR VICE PRESIDENT ADAM O. EMMERICH, ESQ.
AMERISERVE FOOD DISTRIBUTION, INC. WACHTELL, LIPTON, ROSEN & KATZ
15305 DALLAS PARKWAY 51 WEST 52ND STREET
ADDISON, TEXAS 75001 NEW YORK, NEW YORK 10019
(972) 364-2000 (212) 403-1000
(NAME, ADDRESS, INCLUDING ZIP CODE AND
TELEPHONE NUMBER, INCLUDING AREA CODE, OF AGENT
FOR SERVICE)
</TABLE>
------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO PUBLIC: Promptly upon
the effective date of the registration statement.
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]
------------------------
THE REGISTRANTS HEREBY AMEND THE REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANTS
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE> 2
*TABLE OF ADDITIONAL REGISTRANTS
<TABLE>
<CAPTION>
STATE OR OTHER JURISDICTION PRIMARY STANDARD
OF INCORPORATION OR INDUSTRY I.R.S. EMPLOYER
NAME, ADDRESS AND TELEPHONE NUMBER ORGANIZATION CLASSIFICATION NUMBER IDENTIFICATION NUMBER
- ------------------------------------- --------------------------- --------------------- ---------------------
<S> <C> <C> <C>
Chicago Consolidated
Corporation(1)..................... Illinois 5142 36-2691925
Northland Transportation Services,
Inc.(1)............................ Nebraska 5142 39-1807312
Delta Transportation, Ltd.(1)........ Wisconsin 5142 39-1411171
AmeriServe Transportation, Inc.(1)... Nebraska 5142 91-1824117
ProSource Mexico Holdings, Inc.(1)... Delaware 5142 65-0480887
PSC Services of Florida, Inc.(1)..... Delaware 5142 65-0665564
PSD Transportation Services,
Inc.(1)............................ Nevada 4213 65-0773676
ASNSC, Inc.(1)....................... Delaware 5142 36-3933872
</TABLE>
- ------------------------------
(1) The address of these registrants is 15305 Dallas Parkway, Addison, TX 75001.
Their telephone number is (972) 364-2000.
<PAGE> 3
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE MAY
NOT SELL THESE SECURITIES OR ACCEPT ANY OFFER TO SELL THESE SECURITIES OR
SOLICIT OFFERS TO BUY THESE SECURITIES IN ANY PLACE WHERE THE OFFER IS NOT
PERMITTED.
SUBJECT TO COMPLETION, DATED APRIL 30, 1999
PRELIMINARY PROSPECTUS
AMERISERVE FOOD DISTRIBUTION, INC. [AMERISERVE LOGO]
8 7/8% NEW SENIOR NOTES DUE 2006
10 1/8% NEW SENIOR SUBORDINATED NOTES DUE 2007
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- --------------------------------------------------------------------------------
8 7/8% NEW SENIOR NOTES DUE 2006
INTEREST
- - Interest is payable on April 15 and October 15 each year at an 8 7/8% annual
rate.
REDEMPTION
- - We may redeem some or all of the Senior Notes any time after April 15, 2002 at
the redemption prices set forth in this Prospectus.
- - We may also redeem up to 33% of the Senior Notes using the proceeds of equity
offerings before October 15, 2000 at a price of 108.875% of the Notes'
principal amount.
SUBSIDIARY GUARANTEES
- - If we fail to make payments on the Senior Notes, our guarantor subsidiaries
must make them instead. These guarantees rank as senior unsecured debt of the
subsidiaries. Not all of our future subsidiaries will be required to guarantee
payment.
CHANGE IN CONTROL
- - If we experience a change in control, you may require us to repurchase the
Senior Notes.
SECURITY AND RANKING
- - The Senior Notes are not secured by any collateral.
- - They are subordinate to all debt secured by collateral, rank equally with all
existing and future senior unsecured debt, and rank senior to all existing and
future subordinated debt.
- - As of December 26, 1998, the Senior Notes were effectively subordinated to
$60.7 million of secured obligations of the Company and the guaranteeing
subsidiaries.
10 1/8% NEW SENIOR SUBORDINATED NOTES DUE 2007
INTEREST
- - Interest is payable on January 15 and July 15 each year at a 10 1/8% annual
rate.
REDEMPTION
- - We may redeem some or all of the Senior Subordinated Notes any time after July
15, 2002 at the redemption prices set forth in this Prospectus.
- - We may also redeem up to 33% of the Senior Subordinated Notes using the
proceeds of equity offerings before July 15, 2000 at a price of 110.125% of
the Notes' principal amount.
SUBSIDIARY GUARANTEES
- - If we fail to make payments on the Senior Subordinated Notes, our guarantor
subsidiaries must make them instead. These guarantees are unsecured
subordinated debt of the subsidiaries. Not all of our future subsidiaries will
be required to guarantee payment.
CHANGE IN CONTROL
- - If we experience a change in control, you may require us to repurchase the
Senior Subordinated Notes.
SECURITY AND RANKING
- - The Senior Subordinated Notes are not secured by any collateral.
- - They are subordinate to all debt except that they rank equal to existing and
future subordinated debt.
- - As of December 26, 1998, the Senior Subordinated Notes were subordinated to
$411.2 million of senior debt.
-------------------------
SEE "RISK FACTORS," COMMENCING ON PAGE 10, FOR A DISCUSSION OF CERTAIN FACTORS
THAT YOU SHOULD CONSIDER BEFORE INVESTING IN THE NOTES.
-------------------------
Neither the Securities and Exchange Commission nor any State Securities
Commission has passed upon the accuracy or adequacy of this Prospectus. Any
representation to the contrary is a criminal offense.
This Prospectus is to be used by Donaldson, Lufkin & Jenrette Securities
Corporation, in connection with the offers and sales in market-making
transactions at negotiated prices related to prevailing market prices at the
time of sale. The Notes are not listed on any securities exchange or admitted to
trading in the National Association of Securities Dealers Automated Quotation
System and the Company does not intend to make any such listing or seek such
admission to trading. DLJ currently makes a market in the Notes; however, they
are not obligated to continue to do so and any market-making may be discontinued
at any time. The Company receives no portion of the proceeds of sales of the
Notes and has paid certain expenses incident to the registration of the Notes.
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
-------------------------
THE DATE OF THIS PROSPECTUS IS APRIL , 1999.
<PAGE> 4
No dealer, salesperson or other person has been authorized to give
information or to make any representations not 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 or DLJ. This Prospectus does not
constitute an offer to sell or the solicitation of an offer to buy any security
other than the Notes offered hereby, nor does it constitute an offer to sell or
the solicitation of an offer to buy any of the Notes to any person in any
jurisdiction in which it is unlawful to make such an offer or solicitation to
such person. Neither the delivery of this Prospectus nor any sale made hereunder
shall under any circumstances create any implication that the information
contained herein is correct as of any date subsequent to the date hereof.
AVAILABLE INFORMATION
The Notes were originally issued by AmeriServe Food Distribution, Inc., a
Nebraska corporation and predecessor to the Company ("Nebraska AmeriServe"). On
December 28, 1997, pursuant to an Agreement and Plan of Merger by and among
Nebraska AmeriServe, Nebraska AmeriServe's wholly owned subsidiary AmeriServ
Food Company, a Delaware corporation ("AmeriServ") and AmeriServ's wholly owned
subsidiary The Harry H. Post Company ("Post"), Nebraska AmeriServe merged with
and into AmeriServ and Post merged with and into AmeriServ, in each case with
AmeriServ as the surviving Delaware corporation. In the mergers, AmeriServ
changed its name to AmeriServe Food Distribution, Inc. All references herein to
the Company shall be deemed to include references to Nebraska AmeriServe, as
predecessor to the Company.
The Company and the Subsidiary Guarantors (as defined herein) have filed
with the Securities and Exchange Commission Registration Statements on Form S-4,
and amendments to such Registration Statements, under the Securities Act for the
registration of the Senior Notes. This Prospectus, which constitutes a part of
each of the Registration Statements, does not contain all of the information set
forth in the Registration Statements, certain items of which are contained in
exhibits and schedules to the Registration Statements as permitted by the rules
and regulations of the SEC. For further information with respect to the Company
or the Notes offered hereby, reference is made to the Registration Statements,
including the exhibits and financial statement schedules thereto, which may be
inspected without charge at the public reference facility maintained by the SEC
at 450 Fifth Street, N.W., Room 1024, Washington, D.C. 20549, and copies of
which may be obtained from the SEC at prescribed rates. Statements made in this
Prospectus concerning the contents of any document referred to herein are not
necessarily complete. With respect to each such document filed with the SEC as
an exhibit to the Registration Statements, reference is made to the exhibit for
a more complete description of the matter involved, and each such statement
shall be deemed qualified in its entirety by such reference.
Upon the effectiveness of the Registration Statements, the Company became
subject to the information requirements of the Securities Exchange Act of 1934
(the "Exchange Act"), and in accordance therewith files reports and other
information with the SEC. Such reports and other information filed by the
Company can be inspected and copied at the public reference facilities of the
SEC at 450 Fifth Street, N.W., Room 1024, Washington, D.C. 20549, at the Website
(http://www.sec.gov.) maintained by the SEC, and the regional offices of the SEC
located at 7 World Trade Center, 13th Floor, New York, New York 10048 and
Citicorp Center, 500 West Madison Street, 14th Floor, Chicago, Illinois 60661.
Copies of such materials may be obtained from the Public Reference Section of
the SEC, Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549 and at
its public reference facilities in New York, New York and Chicago, Illinois at
prescribed rates.
So long as the Company is subject to the periodic reporting requirements of
the Exchange Act, it is required to furnish the information required to be filed
with the SEC to (i) State Street Bank and Trust Company, as trustee (the "Senior
Note Trustee"), under the Indenture dated as of October 15, 1997 (the "Senior
Note Indenture") among the Company, the Subsidiary Guarantors and the Senior
Note Trustee, pursuant to which the Senior Notes were issued, (ii) State Street
Bank and Trust Company, as trustee ("Senior Subordinated Note Trustee," and
together with the Senior Note Trustee, the "Note Trustees"),
2
<PAGE> 5
under the Indenture dated as of July 11, 1997 (the "Senior Subordinated Note
Indenture," and, together with the Senior Note Indenture, the "Indentures")
among the Company, the Subsidiary Guarantors and the Senior Subordinated Note
Trustee pursuant to which the Senior Subordinated Notes were issued and (iii)
the holders of the Notes. The Company has agreed that, even if they are not
required under the Exchange Act to furnish such information to the SEC, they
will nonetheless continue to furnish information that would be required to be
furnished by the Company by Section 13 of the Exchange Act to the Trustees and
the holders of the Notes as if they were subject to such periodic reporting
requirements.
In addition, the Company and the Subsidiary Guarantors have agreed that for
so long as any of the Notes remain outstanding, they will make available to any
prospective purchaser of the Notes or holder of the Notes in connection with any
sale thereof, the information required by Rule 144A(d)(4) under the Securities
Act of 1933, as amended (the "Securities Act.")
3
<PAGE> 6
PROSPECTUS SUMMARY
The following summary should be read along with the more detailed
information and financial statements, including the notes to the financial
statements, appearing elsewhere in this Prospectus. An index of certain defined
terms used herein can be found on page 115. Generally, references in this
Prospectus to the "Company" or "AmeriServe" are to AmeriServe Food Distribution,
Inc., a Delaware corporation, its predecessors and its subsidiaries, and
references to "NEHC" are to Nebco Evans Holding Company, a Delaware corporation
and the parent of the Company.
THE COMPANY
AmeriServe is North America's largest systems foodservice distributor
specializing in distribution to chain restaurants. The Company is the primary
supplier to its customers of a wide variety of items, including fresh and frozen
meat and poultry, seafood, frozen foods, canned and dry goods, fresh and
pre-processed produce, beverages, dairy products, paper goods, cleaning supplies
and equipment. The Company currently serves over 30 different restaurant chains
and approximately 36,000 restaurant locations in North America. The Company has
had long-standing relationships with such leading restaurant concepts as
Applebee's, Arby's, Burger King, Chick-fil-A, Chili's, Dairy Queen, KFC, Lone
Star Steakhouse, Long John Silver's, Olive Garden, Pizza Hut, Red Lobster,
Sonic, Subway, Taco Bell, TCBY, and TGI Friday's.
On July 11, 1997, the Company acquired the U.S. and Canadian operations of
PFS (the "PFS Acquisition"), a division of PepsiCo, Inc. PFS distributed food
products and supplies and restaurant equipment to franchised and
company-operated restaurants in the Pizza Hut, Taco Bell and KFC systems. These
systems were spun-off by PepsiCo in October 1997 and are now operating as TRICON
Global Restaurants, Inc. In addition, in connection with the PFS Acquisition,
the Company entered into a distribution agreement (the "Distribution Agreement")
whereby it became the exclusive distributor of selected products until July 11,
2002 to the approximately 9,800 Pizza Hut, Taco Bell and KFC restaurants in the
continental United States owned by Pizza Hut, Inc., Taco Bell Corp., Kentucky
Fried Chicken Corporation, and Kentucky Fried Chicken of California, Inc. (all
subsidiaries of Tricon) and their subsidiaries and previously serviced by PFS.
The Distribution Agreement was modified and extended in 1998. See "The
Business -- Recent Customer Developments."
In October 1997, AmeriServe also acquired PFS de Mexico, S.A. de C.V., a
regional systems foodservice distributor based in Mexico City, Mexico for $8
million.
On July 11, 1997, in connection with the PFS Acquisition, the Company
issued and sold $500 million principal amount of 10 1/8% senior subordinated
notes. The senior subordinated notes were sold pursuant to exemptions from, or
in transactions not subject to, the registration requirements of the Securities
Act, and applicable state securities laws. On December 12, 1997, the Company
exchanged the senior subordinated notes for the new Senior Subordinated Notes,
which are registered under the Securities Act with terms substantially identical
to the old senior subordinated notes. For further information, see Note 6 to the
historical financial statements of the Company included elsewhere herein.
On October 15, 1997, AmeriServe issued and sold $350 million in aggregate
principal amount at maturity of 8 7/8% senior notes. The senior notes were sold
pursuant to an exemption from or in transactions not subject to, the
registration requirements of the Securities Act. On December 12, 1997,
AmeriServe exchanged the senior notes for new Senior Notes, which are registered
under the Securities Act, with terms substantially identical to the old senior
notes. For further information, see Note 6 to the historical financial
statements of the Company included elsewhere herein.
On May 21, 1998, the Company acquired all of the outstanding stock of
ProSource, Inc. ("ProSource"). ProSource, which reported net sales of $3.9
billion for its fiscal year ended December 27, 1997, was in the food service
distribution business, specializing in quick service and casual dining chain
restaurants. ProSource serviced approximately 12,700 restaurants, princi-
4
<PAGE> 7
pally in the United States, including such chains as Burger King, Chick-fil-A,
Chili's, Long John Silver's, Olive Garden, Red Lobster, Sonic, TCBY and TGI
Friday's. Funding of the acquisition and related transactions included $125
million provided by expansion of the Company's Accounts Receivable Program to
include ProSource accounts, a $50 million capital contribution to the Company
from NEHC and cash and cash equivalents on hand.
For further information about financings by AmeriServe in connection with
the ProSource acquisition and subsequently, see Notes 6 and 7 to the historical
financial statements of the Company included elsewhere herein.
On December 27, 1998, ProSource Services Corporation, a wholly owned
subsidiary of ProSource, merged with and into ProSource and ProSource merged
with and into AmeriServe. The Company effected the mergers to rationalize its
corporate organization.
BUSINESS STRATEGY
The Company's strategy is to: (i) pursue profitable internal and external
growth opportunities; (ii) capitalize on its nationwide network of distribution
centers to increase customer density and regional market penetration; (iii)
continue to provide low cost, superior customer service; and (iv) maximize
operating leverage by integrating and consolidating the Company, PFS and
ProSource quick service and casual dining businesses and by pursuing selective
acquisitions within the fragmented foodservice distribution industry.
The Company's principal executive offices are located at 15305 Dallas
Parkway, Addison, Texas 75001, and its telephone number is (972) 364-2000.
5
<PAGE> 8
SUMMARY OF TERMS OF SENIOR NOTES
The Company................... AmeriServe Food Distribution, Inc.
Securities Offered............ $350.0 million in aggregate principal amount of
the Company's new 8 7/8% Senior Notes due 2006.
Maturity Date................. October 15, 2006.
Interest Rate................. The Senior Notes bear interest at the rate of
8 7/8% per annum, payable semi-annually on
April 15 and October 15 of each year,
commencing as of April 15, 1998.
Optional Redemption........... The Senior Notes are redeemable at the option
of the Company, in whole or in part, at any
time on or after April 15, 2002 in cash at the
redemption prices set forth herein, plus
accrued and unpaid interest and liquidated
damages, if any, thereon to the date of
redemption. In addition, at any time prior to
October 15, 2000, the Company may redeem up to
33% of the initially outstanding aggregate
principal amount of Senior Notes at a
redemption price equal to 108.875% of the
principal amount thereof, plus accrued and
unpaid interest and liquidated damages, if any,
thereon to the redemption date, with the net
proceeds of a public equity offering; provided
that, in each case, at least 67% of the
initially outstanding aggregate principal
amount of Senior Notes remains outstanding
immediately after the occurrence of any such
redemption. See "Description of Notes -- Senior
Notes -- Optional Redemption."
Change of Control............. Upon the occurrence of a change of control,
each holder of Senior Notes has the right to
require the Company to repurchase all or any
part of such holder's Senior Notes at an offer
price in cash equal to 101% of the aggregate
principal amount thereof, plus accrued and
unpaid interest and liquidated damages, if any,
thereon to the date of repurchase. See
"Description of Notes -- Senior
Notes -- Repurchase at the Option of
Holders -- Change of Control." There can be no
assurance that, in the event of a Change of
Control, the Company would have sufficient
funds to repurchase all Senior Notes tendered.
See "Risk Factors -- Payments must be made upon
a change of control."
Ranking....................... The Senior Notes are senior unsecured
obligations of the Company and rank pari passu
in right of payment with all existing and
future senior unsecured indebtedness of the
Company and senior in right of payment to all
existing and future subordinated indebtedness
of the Company. The Senior Notes are
effectively subordinated, however, to all
secured obligations of the Company, including
the Company's borrowings, if any, under the
Credit Facility, to the extent of the assets
securing such obligations. As of December 26,
1998, the Senior Notes and the Senior Notes
Guarantees were subordinate to approximately
$60.7 million in aggregate principal amount of
secured obligations of the Company and the
Subsidiary Guarantors. See "Risk Factors."
6
<PAGE> 9
Senior Note Guarantees........ The Senior Notes are fully and unconditionally
guaranteed on a joint and several basis by the
following subsidiaries of the Company:
AmeriServe Transportation, Inc., a Nebraska
corporation, Chicago Consolidated Corporation,
an Illinois corporation, Northland
Transportation Services, Inc., a Nebraska
corporation, ProSource Mexico Holdings, Inc., a
Delaware corporation, PSC Services of Florida,
Inc., a Delaware corporation, PSD
Transportation Services, Inc., a Nevada
corporation and Delta Transportation, Ltd., a
Wisconsin corporation (the "Subsidiary
Guarantors"). The Senior Note Guarantees are
general unsecured obligations of the Subsidiary
Guarantors and rank pari passu in right of
payment to all existing and future senior
unsecured indebtedness of the Subsidiary
Guarantors and senior in right of payment to
all existing and future subordinated
indebtedness of the Subsidiary Guarantors.
Certain Covenants............. The Senior Note Indenture contains certain
covenants that limit, among other things, the
ability of the Company to: (i) pay dividends,
redeem capital stock or make certain other
restricted payments or investments; (ii) incur
additional indebtedness or issue preferred
equity interests; (iii) merge, consolidate or
sell all or substantially all of its assets;
(iv) create liens on assets; and (v) enter into
certain transactions with affiliates or related
persons. See "Description of Notes -- Senior
Notes -- Certain Covenants."
Form and Denomination......... The certificates representing the Senior Notes
are issued in fully registered form, deposited
with a custodian for and registered in the name
of a nominee of the depositary in the form of a
global senior note. Beneficial interests in the
certificates representing the global senior
note are shown on, and transfers thereof are
effected through, records maintained by the
depositary and its participants. See
"Description of Notes -- Senior Notes -- Book
Entry, Delivery and Form."
YOU SHOULD CONSIDER THE INFORMATION UNDER "RISK FACTORS" IN DECIDING TO
INVEST IN THE SENIOR NOTES.
7
<PAGE> 10
SUMMARY OF TERMS OF SENIOR SUBORDINATED NOTES
The Company................... AmeriServe Food Distribution, Inc.
Securities Offered............ $500.0 million in aggregate principal amount of
the Company's New 10 1/8% Senior Subordinated
Notes due 2007.
Maturity Date................. July 15, 2007.
Interest Rate................. The Senior Notes bear interest at the rate of
10 1/8% per annum, payable semi-annually on
January 15 and July 15 of each year, commencing
as of January 15, 1998.
Optional Redemption........... The Senior Subordinated Notes are redeemable at
the option of the Company, in whole or in part,
at any time on or after July 15, 2002 in cash
at the redemption prices set forth herein, plus
accrued and unpaid interest and liquidated
damages, if any, thereon to the date of
redemption. In addition, at any time prior to
July 15, 2000, the Company may redeem up to 33%
of the initially outstanding aggregate
principal amount of Senior Subordinated Notes
at a redemption price equal to 110.125% of the
principal amount thereof, plus accrued and
unpaid interest and liquidated Damages, if any,
thereon to the redemption date, with the net
proceeds of a public equity offering; provided
that, in each case, at least 67% of the
initially outstanding aggregate principal
amount of Senior Subordinated Notes remains
outstanding immediately after the occurrence of
any such redemption. See "Description of
Notes -- Senior Subordinated Notes -- Optional
Redemption."
Change of Control............. Upon the occurrence of a change of control,
each holder of Senior Subordinated Notes has
the right to require the Company to repurchase
all or any part of such holder's Senior
Subordinated Notes at an offer price in cash
equal to 101% of the aggregate principal amount
thereof, plus accrued and unpaid interest and
liquidated damages, if any, thereon to the date
of repurchase. See "Description of
Notes -- Senior Subordinated
Notes -- Repurchase at the Option of
Holders -- Change of Control." There can be no
assurance that, in the event of a change of
control, the Company would have sufficient
funds to repurchase all Senior Subordinated
Notes tendered. See "Risk Factors -- Payments
must be made upon a change of control."
Subordination................. The Senior Subordinated Notes are general
unsecured obligations of the Company and rank
subordinate in right of payment to all Senior
Debt and rank senior or pari passu in right of
payment to all existing and future subordinated
indebtedness of the Company and senior in right
of payment to all existing and future
subordinated indebtedness of the Company. As of
December 26, 1998, the Senior Subordinated
Notes and the Senior Subordinated Notes
Guarantees were subordinate to approximately
$411.2 million. See "Risk Factors."
Senior Subordinated Note
Guarantees.................... The Senior Subordinated Notes are fully and
unconditionally guaranteed on a joint and
several basis by the following subsidiaries of
the Company: AmeriServe Transportation, Inc., a
Nebraska corporation, Chicago Consolidated
Corporation, an Illinois corporation, Northland
Transportation Services, Inc., a Nebraska
corporation, ProSource Mexico Holdings, Inc., a
Delaware corporation, PSC Services of Florida,
Inc., a Delaware
8
<PAGE> 11
corporation, PSD Transportation Services, Inc.,
a Nevada corporation and Delta Transportation,
Ltd., a Wisconsin corporation (the "Subsidiary
Guarantors"). The Senior Subordinated Note
Guarantees are general unsecured obligations of
the Subsidiary Guarantors and rank subordinate
in right of payment to all Senior Debt of the
Subsidiary Guarantors and rank senior or pari
passu in right of payment to all existing and
future subordinated indebtedness of the
Subsidiary Guarantors.
Certain Covenants............. The Senior Subordinated Note Indenture contains
certain covenants that limit, among other
things, the ability of the Company to: (i) pay
dividends, redeem capital stock or make certain
other restricted payments or investments; (ii)
incur additional indebtedness or issue
preferred equity interests; (iii) merge,
consolidate or sell all or substantially all of
its assets; (iv) create liens on assets; and
(v) enter into certain transactions with
affiliates or related persons. See "Description
of Notes -- Senior Subordinated
Notes -- Certain Covenants."
Form and Denomination......... The certificates representing the Senior
Subordinated Notes are issued in fully
registered form, deposited with a custodian for
and registered in the name of a nominee of the
depositary in the form of a global senior
subordinated Note. Beneficial interests in the
certificates representing the Global Senior
Subordinated Note are shown on, and transfers
thereof are effected through, records
maintained by the Depositary and its
Participants. See "Description of
Notes -- Senior Subordinated Notes -- Book
Entry, Delivery and Form."
YOU SHOULD CONSIDER THE INFORMATION UNDER "RISK FACTORS" IN DECIDING TO
INVEST IN THE SENIOR SUBORDINATED NOTES.
9
<PAGE> 12
RISK FACTORS
You should consider carefully the following factors, as well as the other
information in this Prospectus, before making an investment in the Notes. This
Prospectus includes forward-looking statements, including statements concerning
the Company's business strategy, operations, cost savings initiatives, economic
performance, financial condition and liquidity and capital resources, and these
statements are subject to various risks and uncertainties. The Company's actual
results may differ materially from the results discussed in forward-looking
statements because of a number of factors, including those identified in this
"Risk Factors" section and elsewhere in this Prospectus. See "Summary,"
"Management's Discussion and Analysis of Financial Condition and Results of
Operations" and "The Business." The forward-looking statements are made as of
the date of this Prospectus, and the Company assumes no obligation to update the
forward-looking statements or to update the reasons why actual results could
differ from those projected in the forward-looking statements.
THE COMPANY IS AND WILL BE SUBSTANTIALLY LEVERAGED.
The Company is and will continue to be highly leveraged as a result of
substantial indebtedness it has incurred in connection with the acquisitions and
related financings. The Company had a total indebtedness of $911.2 million and
stockholder's equity of $1.1 million as of December 26, 1998, and the Company's
earnings were inadequate to cover fixed charges by $145.6 million for the year
ended December 26, 1998. The Company may incur additional indebtedness in the
future, subject to limitations imposed by the Indentures and the Credit
Facility. See "Capitalization," "The Business -- Recent Customer Developments,"
"Description of Indebtedness," and the historical financial statements of the
Company.
The Company's ability to make scheduled payments of principal of, or to pay
interest on, or to refinance its indebtedness (including the Notes) depends on
its future performance, which, to a certain extent, is subject to general
economic, financial, competitive, legislative, regulatory and other factors
beyond its control. Based upon the current level of operations and anticipated
growth, the management of the Company believes that available cash flow,
together with available borrowings under a credit facility and other sources of
liquidity, including an accounts receivable securitization program, will be
adequate to meet the Company's anticipated future requirements for working
capital, capital expenditures, scheduled payments of principal of and interest
on its indebtedness, and interest on the Notes. However, all or a portion of the
principal payments at maturity on the Notes may require refinancing. There can
be no assurance that the Company's business will generate sufficient cash flow
from operations or that future borrowings will be available in an amount
sufficient to enable the Company to service its indebtedness, including the
Notes, or to make necessary capital expenditures, or that any refinancing would
be available on commercially reasonable terms or at all. See "Management's
Discussion and Analysis of Financial Condition and Results of
Operations -- Liquidity and Capital Resources."
The degree to which the Company is now leveraged could have important
consequences to holders of the Notes, including, but not limited to, the
following: (i) a substantial portion of the Company's cash flow from operations
will be required to be dedicated to debt service and will not be available for
other purposes; (ii) the Company's ability to obtain additional financing in the
future could be limited; (iii) certain of the Company's borrowings are at
variable rates of interest, which could result in higher interest expense in the
event of an increase in interest rates; and (iv) the Indentures and the
Company's credit facility contain financial and restrictive covenants that limit
the ability of the Company to, among other things, borrow additional funds,
dispose of assets or pay cash dividends. Failure by the Company to comply with
such covenants could result in an event of default, which, if not cured or
waived, could have a material adverse effect on the Company. In addition, the
degree to which the Company is leveraged could prevent it from repurchasing all
Notes tendered to it upon the occurrence of a change of control. See
"Description of Notes -- Senior Notes -- Repurchase at the Option of
Holders -- Change of Control," "-- Senior Subordinated Notes -- Repurchase at
the Option of Holders -- Change of Control," and "Description of
Indebtedness -- Credit Facility."
10
<PAGE> 13
SENIOR SUBORDINATED NOTES ARE SUBORDINATE TO SENIOR DEBT OF THE COMPANY.
The Senior Subordinated Notes are subordinated in right of payment to all
existing and future senior debt of the Company, including the principal of or
premium, if any, and interest on and all other amounts due on or payable in
connection with senior debt. At December 26, 1998, there were outstanding
approximately $411.2 million of senior debt. Because of such subordination, in
the event of the insolvency, liquidation, reorganization, dissolution or other
winding-up of the Company or upon a default in payment with respect to, or the
acceleration of, any senior debt, the holders of such senior debt must be paid
in full before the holders of the Senior Subordinated Notes may be paid. If the
Company incurs any additional pari passu debt, the holders of such debt would be
entitled to share ratably with the holders of the Senior Subordinated Notes in
any proceeds distributed in connection with any insolvency, liquidation,
reorganization, dissolution or other winding-up of the Company. This may have
the effect of reducing the amount of proceeds paid to holders of the Senior
Subordinated Notes. In addition, no payments may be made with respect to the
principal of, premium and liquidated damages, if any, or interest on the Senior
Subordinated Notes if a payment default exists with respect to senior debt and,
under certain circumstances, no payments may be made with respect to the
principal of, premium and liquidated damages, if any, or interest on the Senior
Subordinated Notes for a period of up to 179 days if a non-payment default
exists with respect to senior debt. In addition, the Senior Subordinated Note
Indenture permits the Company and its subsidiaries to incur additional debt if
certain conditions are met. See "Description of Notes -- Senior Subordinated
Notes -- Subordination" and "-- Certain Definitions."
THE NOTES ARE SUBORDINATE TO LIENS ON ASSETS.
Under the Company's credit facility, NEHC has granted the lenders
thereunder security interests in all of the capital stock of the Company, and
the Company has granted to the lenders security interests in substantially all
of the current and future assets of the Company, including a pledge of all of
the issued and outstanding shares of capital stock of certain of the Company's
subsidiaries. In the event of a default on secured indebtedness (whether as a
result of the failure to comply with a payment or other covenant, a
cross-default, or otherwise), these lenders will have a prior secured claim on
the capital stock of the Company and the assets of the Company and its
subsidiaries. As a result, the secured assets of the Company would be available
to pay obligations on the Notes only after borrowings under the Credit Facility
and other secured indebtedness have been paid in full. If the Lenders should
attempt to foreclose on their collateral, the Company's financial condition and
the value of the Notes will be materially adversely affected and could be
eliminated. See "Description of Indebtedness." At December 26, 1998, the Senior
Notes and the Senior Note Guarantees were effectively subordinate to
approximately $60.7 million of secured obligations of the Company and the
Subsidiary Guarantors.
In addition, if the Company incurs any additional senior indebtedness which
would rank pari passu in right of payment with the Senior Notes, and even if
such indebtedness is not secured, the holders of such debt would be entitled to
share ratably with the holders of the Senior Notes in any proceeds distributed
in connection with any insolvency, liquidation, reorganization, dissolution or
other winding-up of the Company. This may have the effect of reducing the amount
of proceeds paid to holders of the Senior Notes.
THE COMPANY'S PERFORMANCE RELIES SIGNIFICANTLY ON KEY CONTRACTS.
In January 1997, the Company entered into a three-year agreement, which
became effective April 1997, to become the primary supplier to approximately
2,600 Arby's restaurants nationwide. In December 1998, the Company and ARCOP, a
cooperative of franchisees in the Arby's system, agreed to terminate the
existing agreement and enter into a new agreement that expires in December 2003.
Net sales to Arby's restaurants under the agreement approximate $400 million
annually. No assurance can be given that the Company's contract with Arby's will
be renewed upon expiration, that any renewal of such contract will be on terms
as favorable to the Company as the current contract or that the Company will
realize expected net sales under the existing contract.
11
<PAGE> 14
In connection with the PFS Acquisition, the Company and Tricon entered into
a five-year Distribution Agreement pursuant to which the Company became the
exclusive distributor of specified restaurant products purchased by Pizza Hut,
Taco Bell and KFC restaurants within the continental United States, which are
owned, directly or indirectly, by Tricon (other than certain specified
restaurants) or which are acquired or built by Tricon during the term of the
Distribution Agreement. In September 1998, the Company and Tricon agreed to
revise and extend the agreement from five years to seven and one-half years,
with an additional two and one-half year extension option. Including this option
period, the agreement expires July 2007. Service to Tricon company-owned
restaurants under the agreement represented approximately $1.7 billion in net
sales in fiscal 1998. The Distribution Agreement may be terminated at any time
(i) by any party in the event that the other party breaches any material term
and such breach remains unremedied for a period of 30 calendar days after
written notice of such breach, (ii) by Tricon if the Company is in material
breach of the Distribution Agreement for failure to maintain specified service
levels for a specified period of time or (iii) by either party in the event that
the other party becomes the subject of a bankruptcy, insolvency or other similar
proceeding.
While exclusive or written arrangements are not typically the basis of
foodservice distribution sales and have not historically been requisite to the
Company's growth, the Distribution Agreement will expire on January 11, 2005
unless renewed and no assurance can be given that the Distribution Agreement
will be renewed or, if renewed, whether such renewal will be on terms as
favorable as the existing agreement. Furthermore, no assurance can be given that
the Company will be able to achieve the expected net sales under the current
Distribution Agreement.
THE COMPANY'S PERFORMANCE DEPENDS SIGNIFICANTLY ON CERTAIN CHAINS AND CUSTOMERS.
The Company derives substantially all of its net sales from several chain
restaurant concepts. On a pro forma basis, including sales to company-owned and
franchised restaurants (and including ProSource for all of 1998 and PFS for all
of 1997) but excluding net sales to the Wendy's concept in 1998 (sales to the
Wendy's concept were discontinued during 1998), the largest chains serviced by
the Company would have been Burger King, Taco Bell, Pizza Hut, KFC, and Red
Lobster, representing 25%, 17%, 16%, 7% and 7% of 1998 sales, respectively.
Adverse developments affecting such chains or a decision by a corporate owner or
franchisor to revoke its approval of the Company as a distributor could have a
material adverse effect on the Company's operating results.
The Company's customers are generally individual franchisees or
corporate-owned restaurants within such restaurant chains. Although the
corporate owner or franchiser of a chain generally reserves the right to approve
the distributors for its franchisees, each customer generally makes its
selection of a foodservice distributor from an approved group of distributors.
On a pro forma basis, assuming the inclusion of ProSource for the full year,
restaurants owned by Tricon accounted for approximately 21% of the Company's
1998 sales. Darden Restaurants, Inc., which owns all the Red Lobster and Olive
Garden Restaurants, accounted for approximately 10% of 1998 pro forma net sales.
No other customer accounted for more than 10% of 1998 sales on either a pro
forma or reported basis.
The Company provides service to Tricon's U.S. company-owned restaurants
under a long-term exclusive distribution agreement. Tricon is actively engaged
in the sale to franchisees of company-owned restaurants covered by the
distribution agreement. While the distribution agreement provides that prior to
sales of Pizza Hut and Taco Bell restaurants, such franchisees will enter into
distribution agreements on substantially similar terms, there can be no
assurance that the transition from company-owned to franchised status will not
affect the Company's results. In general, any adverse events affecting any of
the Company's largest customers, a material decrease in sales to any such
customers or the loss of a major customer through the acquisition thereof by a
company with an internal foodservice distribution business or otherwise could
have a material adverse effect on the Company's operating results. In addition,
the Company's continued growth is dependent in part on the continued growth and
expansion of its customers.
The Company's customer contracts are subject to termination by the customer
prior to expiration of the stated term under circumstances specified in each
contract, including, in some cases, failure to comply with performance
reliability standards. Although the Company is not aware of any issues of
non-compliance that
12
<PAGE> 15
could reasonably be expected to result in termination of any such contracts
prior to expiration of the stated term, and has not been notified by any
customer that it intends to terminate its contract with the Company, there can
be no assurance that historic levels of business from any customer of the
Company will be maintained in the future. See "The Business -- Customers" and
"-- Recent Customer Developments."
INTEGRATION OF ACQUISITIONS MAY BE DIFFICULT.
The Company has achieved a significant portion of its growth through
acquisitions and will continue to try to grow in this way. Although each of the
previously acquired companies has a significant operating history, the Company
has a limited history of owning and operating the most recently acquired of
these businesses on a consolidated basis. Holberg Industries, Inc. acquired
NEBCO Distribution of Omaha, Inc. in 1986. NEBCO acquired Evans Brothers Company
in January 1990 and the combined company was renamed "NEBCO EVANS Distribution,
Inc." NEBCO EVANS acquired L.L. Distribution Systems Inc. in 1990, Condon Supply
Company in 1991, AmeriServ Food Company in January 1996 and, in April 1997,
changed its name to "AmeriServe Food Distribution, Inc." As a result of the PFS
Acquisition and the ProSource Acquisition, the Company has begun to integrate
PFS and ProSource with its existing business, including its prior acquisitions.
The Company is implementing a comprehensive restructuring involving
consolidation and transfer of business among warehouse facilities, re-routing of
truck deliveries, consolidation and streamlining of support functions and
relocation and training of employees. The Company is investing significant cash
expenditures to effect the restructuring plan, with the expectation of
substantial cost savings upon its completion. While the Company has made
important progress, there can be no assurance that the restructuring actions
will be completed on time, that business operations will not be disrupted during
the restructuring period, that spending will be within projected levels and that
the expected cost savings will be achieved. While management believes it has the
resources to meet the objectives, the ultimate level and timing of efficiencies
to be realized are subject to the Company's ability to manage through the
complexities of the restructuring plan and respond to unanticipated events. In
addition, while the Company has made acquisitions successfully before, both the
PFS Acquisition and the ProSource Acquisition are substantially larger than the
Company's prior acquisitions. There can be no assurance that integration and the
expected cost savings will be realized on a timely basis. See "Management's
Discussion and Analysis of Financial Condition and Results of
Operations -- Business Restructuring."
THE COMPANY IS DEPENDENT ON KEY PERSONNEL.
The Company's success is, and will continue to be, substantially dependent
upon the continued services of its senior management, particularly Mr. John V.
Holten, Chairman and Chief Executive Officer of the Company. The loss of the
services of one or more members of senior management could adversely affect the
Company's operating results. The Company has entered into employment agreements
with certain members of senior management. In addition, the Company's continued
growth depends on the ability to attract and retain skilled operating managers
and employees and the ability of its key personnel to manage the Company's
growth and consolidate and integrate its operations. See "Management."
THE FOOD SERVICE INDUSTRY IS HIGHLY COMPETITIVE.
The Company's future results are subject to economic and competitive risks
and uncertainties in the chain restaurant and foodservice distribution
industries and in the economy, generally. The foodservice distribution industry
is highly competitive, and the trend of consolidation, as evidenced by the
Company's acquisition activity, may further intensify competitive pressures.
While the Company will take appropriate actions to retain desired business, some
loss of customers during this transition period has occurred and is a continuing
risk. In addition, the activities associated with the restructuring plan and
computer systems initiatives increase the risk of business disruption;
therefore, there can be no assurance of the Company's consistent achievement of
service level requirements set forth in customer contracts. The Company could
also face increased competition to the extent that there is an increase in the
number of foodservice distributors specializing in distribution to chain
restaurants on a nationwide basis. Management believes
13
<PAGE> 16
that completion of the restructuring plan will enhance the Company's position as
one of the most efficient distributors in its industry and, therefore, highly
competitive in pricing and customer service. See "The Business -- Competition."
HOLBERG AND DLJ WILL HAVE THE ABILITY TO CONTROL THE COMPANY.
Holberg indirectly owns a majority of the issued and outstanding capital
stock of NEHC, which in turn directly owns all of the issued and outstanding
capital stock of the Company. See "Security Ownership of Certain Beneficial
Holders and Management." Holberg and DLJ collectively have sufficient voting
power to elect the entire Board of Directors of each of NEHC, and through NEHC,
the Company, and thereby exercise control over the business, policies and
affairs of NEHC and the Company, and, in general, determine the outcome of any
corporate transaction or other matters submitted to stockholders for approval,
such as any amendment to the Amended and Restated Certificate of Incorporation
of the Company, the authorization of additional shares of capital stock, and any
merger, consolidation or sale of all or substantially all of the assets of the
Company, all of which could adversely affect the Company and holders of the
Notes.
THE COMPANY IS REQUIRED TO MAKE PAYMENTS UPON A CHANGE OF CONTROL.
Upon the occurrence of a change of control, each holder of Notes may
require the Company to repurchase all or a portion of such holder's Notes at
101% of the principal amount of the Notes, together with accrued and unpaid
interest, if any, and Liquidated Damages, if any, to the date of repurchase. The
Indentures require that prior to such a repurchase, the Company must either
repay all outstanding indebtedness under the Credit Facility or obtain any
required consent to such repurchase. If a Change of Control were to occur, the
Company may not have the financial resources to repay all of its obligations
under the Credit Facility, the Notes and the other indebtedness that would
become payable upon such event. See "Description of Notes -- Senior
Notes -- Repurchase at the Option of Holders -- Change of Control" and
"-- Senior Subordinated Notes -- Repurchase at the Option of Holders -- Change
of Control."
THE COMPANY'S COMPUTER SYSTEMS MAY EXPERIENCE PROBLEMS WITH THE YEAR 2000.
An important component of the consolidation effort is the replacement of
most existing management information systems with a new software platform and
hardware configuration. The new computer system will complement the
consolidation effort by providing the flexibility to support the varied
processes of the combined business as well as allowing greater centralization of
support functions. The Company expects to incur significant internal staff costs
as well as significant consulting and other expenditures to implement the new
system. Another critical benefit of the new system is that it replaces
applications that are not Year 2000 compliant. The implementation of the new
system is underway and expected to be completed in mid-1999. Because of the Year
2000 issue, a delay in the implementation of the new system could have a
significant adverse impact on the Company's operations. Further, the Company is
working with vendors and customers who are at various stages in analyzing this
issue. There can be no assurance that the systems of other companies on which
the Company's systems rely on or interface with will be timely converted. The
current cash costs (excluding leased computer hardware) to implement the new
system and perform the assessment and remediation of the Y2K issue will
approximate $105 million.
FEDERAL AND STATE STATUTES ALLOW COURTS, UNDER SPECIFIC CIRCUMSTANCES, TO VOID
THE NOTE AND THE GUARANTEES OF THE NOTES.
Management of the Company believes that the indebtedness represented by the
Notes was incurred for proper purposes and in good faith, and that, based on
then-present forecasts, asset valuations and other financial information, after
the consummation of the transactions giving rise to the indebtedness, the
Company was solvent, had sufficient capital for carrying on its business and was
able to pay its debts as they mature. See "-- Substantial Leverage and Debt
Service." Notwithstanding management's belief, however, if a court of competent
jurisdiction in a suit by an unpaid creditor or a representative of creditors
(such as a trustee in bankruptcy or a debtor-in-possession) were to find that,
at the time of the incurrence of such indebtedness, the Company was insolvent,
was rendered insolvent by reason of such incurrence, was engaged in a business
or transaction for which its remaining assets constituted unreasonably small
14
<PAGE> 17
capital, intended to incur, or believed that it would incur, debts beyond its
ability to pay such debts as they matured, or intended to hinder, delay or
defraud its creditors, and that the indebtedness was incurred for less than
reasonably equivalent value, then such court could, among other things, (i) void
all or a portion of the Company's obligations to the holders of the Notes, the
effect of which would be that the holders of the Notes may not be repaid in full
and/or (ii) subordinate the Company's obligations to the holders of the Notes to
other existing and future indebtedness of the Company to a greater extent than
would otherwise be the case, the effect of which would be to entitle such other
creditors to be paid in full before any payment could be made on the Notes.
The Company's obligations under the Senior Notes are guaranteed, jointly
and severally, on a senior unsecured basis, by each of the Subsidiary
Guarantors. The Company's obligations under the Senior Subordinated Notes are
guaranteed, jointly and severally, on a senior subordinated basis, by each of
the Subsidiary Guarantors. Management of the Company believes that indebtedness
represented by the Senior Note Guarantees and the Senior Subordinated Note
Guarantees was incurred by the Subsidiary Guarantors for proper purposes and in
good faith, and that, based on present forecasts, asset valuations and other
financial information, after consummation of the transactions giving rise to the
indebtedness, each of the Subsidiary Guarantors was solvent, had sufficient
capital for carrying on its business, and was able to pay its debts as they
mature. See "-- Substantial Leverage and Debt Service." Notwithstanding
management's belief, however, if a court of competent jurisdiction in a suit by
an unpaid creditor or a representative of creditors (such as a trustee in
bankruptcy or a debtor-in-possession) were to find that, at the time of the
incurrence of such indebtedness, the Subsidiary Guarantors were insolvent, were
rendered insolvent by reason of such incurrence, were engaged in a business or
transaction for which their remaining assets constituted unreasonably small
capital, intended to incur, or believed that they would incur, debts beyond
their ability to pay such debts as they matured, or intended to hinder, delay or
defraud their creditors, and that the indebtedness was incurred for less than
reasonably equivalent value, then such court could, among other things, (i) void
all or a portion of such Subsidiary Guarantors' obligations to the holders of
the Notes, the effect of which would be that the holders of the Notes may not be
repaid in full or at all and/or (ii) subordinate such Subsidiary Guarantors'
obligations to the holders of the Notes to other existing and future
indebtedness of such Subsidiary Guarantors, the effect of which would be to
entitle such other creditors to be paid in full before any payment could be made
on the Notes. Among other things, a legal challenge to a Note Guarantee on
fraudulent conveyance grounds may focus on the benefits, if any, realized by the
Subsidiary Guarantors as a result of the issuance by the Company of the Notes.
THERE ARE NO ESTABLISHED TRADING MARKETS FOR THE NOTES.
Prior to the offering of the Notes there was no existing trading market for
the Notes, and there can be no assurance regarding the existence of a market for
the Notes or the ability of the holders of the Notes to sell their Notes or the
price at which such holders may be able to sell their Notes. The Notes could
trade at prices that may be higher or lower than their initial offering price
depending on many factors, including prevailing interest rates, the Company's
operating results and the market for similar securities. Although they are not
obligated to do so, DLJ currently makes a market in the Notes. Any such
market-making activity may be discontinued at any time, for any reason, without
notice at the sole discretion of DLJ. No assurance can be given as to the
liquidity of or the trading market for the Notes.
DLJ may be deemed to be affiliates of the Company and, as such, may be
required to deliver a prospectus in connection with their market-making
activities in the Notes. Pursuant to the Registration Rights Agreements entered
into between the Company, the Subsidiary Guarantors and DLJ, the Company and the
Subsidiary Guarantors agreed to use their respective best efforts to file and
maintain a registration statement that would allow DLJ to engage in
market-making transactions in the Notes. The Company has agreed to bear
substantially all the costs and expenses related to such registration statement.
USE OF PROCEEDS
This Prospectus is delivered in connection with the sale of the Notes by
DLJ in market-making transactions. The Company will not receive any of the
proceeds from such transactions.
15
<PAGE> 18
CAPITALIZATION
(DOLLARS IN THOUSANDS)
The following table sets forth the consolidated cash and capitalization of
the Company as of December 26, 1998. This table should be read in conjunction
with the historical financial statements of the Company and the related notes
thereto included elsewhere herein.
<TABLE>
<CAPTION>
1998
--------
<S> <C>
Cash and cash equivalents................................... $ 4,667
========
Long-term debt (including current portion):
Senior Notes due 2006..................................... $350,000
Senior Subordinated Notes due 2007........................ 500,000
Revolving Credit Facility................................. 4,000
Other Notes Payable....................................... 500
Capital lease obligations................................. 56,749
--------
Total long-term debt.............................. 911,249
Total stockholder's equity.................................. 1,082
--------
Total capitalization........................................ $912,331
========
</TABLE>
16
<PAGE> 19
SELECTED AMERISERVE HISTORICAL FINANCIAL DATA
(DOLLARS IN THOUSANDS)
The following table presents selected historical financial data of the
Company at and for the fiscal years 1994, 1995, 1996, 1997 and 1998, which have
been derived from the audited financial statements of the Company. The
historical financial statements of the Company for the fiscal years 1994, 1995,
1996, 1997 and 1998 were audited by Ernst & Young LLP. The selected financial
data set forth below should be read in conjunction with "The Business -- Recent
Customer Developments," "Management's Discussion and Analysis of Financial
Condition and Results of Operations," and the historical financial statements of
the Company and related notes included elsewhere herein.
<TABLE>
<CAPTION>
FISCAL YEAR
-----------------------------------------------------------
1994 1995 1996(A) 1997(B) 1998(C)
---- ---- ------- ------- -------
<S> <C> <C> <C> <C> <C>
INCOME STATEMENT DATA:
Net sales............................ $358,516 $400,017 $1,280,598 $3,446,191 $7,420,951
Gross profit......................... 37,914 40,971 128,849 342,179 680,025
Operating expenses................... 34,488 36,695 114,560 353,069(d) 717,275(e)
-------- -------- ---------- ---------- ----------
Operating income (loss).............. 3,426 4,276 14,289 (10,890) (37,250)
Interest expense, net................ (3,294) (3,936) (10,999) (46,805) (84,447)
Loss on sale of accounts
receivable........................ -- -- -- (6,757) (24,906)
Interest income -- Holberg and
affiliate......................... 533 749 528 632 971
-------- -------- ---------- ---------- ----------
Income (loss) before income taxes,
extraordinary loss, and cumulative
effect of accounting change....... 665 1,089 3,818 (63,820) (145,632)
Provision for income taxes........... 523 583 1,300 1,030 1,341
-------- -------- ---------- ---------- ----------
Income (loss) before extraordinary
loss and cumulative effect of
accounting change................. 142 506 2,518 (64,850) (146,973)
Extraordinary loss on early
extinguishment of debt............ -- -- -- (9,373) --
-------- -------- ---------- ---------- ----------
Net income (loss).................... $ 142 $ 506 $ 2,518 $ (74,223) $ (146,973)
======== ======== ========== ========== ==========
OTHER DATA:
EBITDA(f)............................ $ 6,710 $ 7,038 $ 26,041 $ 75,487 $ 118,040
Depreciation and amortization........ 3,284 2,762 10,061 33,928 65,203
Capital expenditures................. 1,331 2,496 12,518 22,921 68,534
Net cash provided by (used in):
Operating activities.............. 4,276 4,505 1,213 62,846 (109,469)
Investing activities.............. (5,422) (5,574) (105,013) (877,808) (380,251)
Financing activities.............. 490 619 105,387 1,043,931 263,256
Ratio of earnings to fixed
charges(g)........................ 1.1x 1.2x 1.2x N/A N/A
BALANCE SHEET DATA:
Cash and cash equivalents............ $ 1,025 $ 575 $ 2,162 $ 231,131 $ 4,667
Total assets......................... 79,218 77,503 291,103 1,462,321 1,887,323
Long-term debt, including current
portion........................... 32,160 32,779 129,905 879,238 911,249
Total stockholder's equity........... 17,205 10,157 42,675 98,055 1,082
</TABLE>
- ------------------------------
(a) Includes the effects of the acquisition of AmeriServ on January 25, 1996.
(b) Includes the effects of the acquisition of PFS effective June 11, 1997.
(c) Includes the effects of the acquisition of ProSource on May 21, 1998.
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<PAGE> 20
(d) Includes $52.4 million in restructuring and other unusual costs. See Note 3
to the historical financial statements of Company included elsewhere herein.
(e) Includes $90.1 million in restructuring and other unusual costs. See Note 3
to the historical financial statements of Company included elsewhere herein.
(f) EBITDA represents operating income plus depreciation, amortization and
excludes one-time, non-recurring gains and losses. EBITDA in fiscal 1996
adds back a net one-time, non-recurring charge of $1.7 million. EBITDA in
fiscal 1997 and 1998 excludes $52.4 million and $90.1 million, respectively,
of impairment, restructuring and other unusual charges. EBITDA is presented
because management believes it is a widely accepted financial indicator used
by certain investors and analysts to analyze and compare companies on the
basis of operating performance. EBITDA is not intended to represent cash
flows for the period, nor has it been presented as an alternative to
operating income as an indicator of operating performance and should not be
considered in isolation or as a substitute for measures of performance
prepared in accordance with generally accepted accounting principles. The
Company understands that, while EBITDA is frequently used by securities
analysts in the evaluation of companies, EBITDA, as used herein, is not
necessarily comparable to other similarly titled captions of other companies
due to potential inconsistencies in the method of calculation. See the
historical and unaudited pro forma financial statements of the Company and
the related notes thereto included elsewhere herein.
(g) For purposes of computing this ratio, earnings consist of income before
income taxes plus fixed charges. Fixed charges consist of interest expense,
amortization of deferred finance fees and one-third of the rent expense from
operating leases, which management believes is a reasonable approximation of
the interest factor of the rent. For the fiscal years 1997 and 1998,
earnings were inadequate to cover fixed charges by $63.8 million and $145.6
million, respectively.
18
<PAGE> 21
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION
AND RESULTS OF OPERATIONS
NATURE OF OPERATIONS
The Company is a foodservice distributor specializing in distribution to
chain restaurants. The Company distributes a wide variety of food items as well
as paper goods, cleaning and other supplies and equipment. The Company operates
within a single type of business activity, with no operating segments as defined
by Statement of Financial Accounting Standards No. 131, "Disclosures about
Segments of an Enterprise and Related Information."
The Company services approximately 36,000 restaurants, the vast majority of
which are in the United States. The Company's major customers are owners and/or
franchisees operating restaurants in the Arby's, Burger King, Chick-fil-A,
Chili's, Dairy Queen, KFC, Lone Star Steakhouse, Long John Silver's, Olive
Garden, Pizza Hut, Red Lobster, Sonic, Taco Bell, TCBY and TGI Friday's systems.
For most of these concepts, the Company services all or a substantial majority
of the U.S. restaurants in the systems. The Company also operates foodservice
distribution businesses in Canada and Mexico, which are not material to the
consolidated financial statements of the Company.
NEHC is the parent of the Company, which comprises substantially all of the
operations of NEHC. NEHC is an indirect subsidiary of Holberg, a privately held
diversified service company. In addition to NEHC, Holberg has subsidiaries
operating within the parking services industry in North America.
ACQUISITIONS
On May 21, 1998, the Company acquired ProSource for $313.5 million in cash,
which reflected $15.00 per share for all of the outstanding common stock,
repayment of existing indebtedness of ProSource of $159.5 million and direct
costs of the acquisition. ProSource, which reported net sales of $3.9 billion
for its fiscal year ended December 27, 1997, was in the foodservice distribution
business, specializing in quick service and casual dining chain restaurants.
ProSource serviced approximately 12,700 restaurants, principally in the United
States, in such chains as Burger King, Chick-fil-A, Chili's, Long John Silver's,
Olive Garden, Red Lobster, Sonic, TCBY and TGI Friday's. Funding of the
acquisition and related transactions included $125 million in proceeds from the
sale of ProSource accounts receivable (see Note 7 to the historical financial
statements of NEHC included elsewhere herein), a $50 million capital
contribution to the Company from NEHC and cash and cash equivalents on hand. The
acquisition has been accounted for under the purchase method; accordingly, 31
weeks of results for the former ProSource operations are included in the
Company's reported operating results for the year ended December 26, 1998. The
comparisons of reported operating results for fiscal 1998 to fiscal 1997
presented below under "Results of Operations" are significantly impacted by the
acquisition of ProSource.
Effective June 11, 1997, the Company acquired the U.S. and Canadian
operations of PFS in an asset purchase transaction for $841.6 million in cash,
including direct costs. PFS posted net sales of $3.4 billion for its fiscal year
ended December 25, 1996. PFS was engaged in the distribution of food products,
supplies and equipment to approximately 17,000 company-owned and franchised
restaurants in the Pizza Hut, Taco Bell and KFC systems, which were spun-off by
PepsiCo, Inc. in October 1997 as TRICON Global Restaurants, Inc. Funding of the
acquisition was provided by long-term borrowings and sale of accounts receivable
(see Notes 6 and 7 to the historical financial statements of the Company
included elsewhere herein) and a $130 million capital contribution to the
Company from NEHC. The acquisition has been accounted for under the purchase
method; accordingly, 28 weeks of results for the former PFS operations are
included in the Company's reported operating results for the year ended December
27, 1997. The comparisons of reported operating results for fiscal 1998 to
fiscal 1997 and fiscal 1997 to fiscal 1996 presented below under "Results of
Operations" are significantly impacted by the acquisition of PFS.
19
<PAGE> 22
BUSINESS RESTRUCTURING
In the last two years, the Company's pro forma sales have grown
significantly from $1.5 billion in 1996 to $9.1 billion in 1998 (including the
full year effect of acquisitions). This growth came largely from the
acquisitions of PFS and ProSource, both large foodservice distribution companies
with national scope specializing in the chain restaurant segment of the U.S.
foodservice industry.
These acquisitions have resulted in redundancies in the Company's warehouse
facilities, truck delivery routes and administrative and other support
functions. The Company has developed a business restructuring plan to
consolidate and integrate the acquired businesses. Actions identified in the
plan include construction of new strategically located warehouse facilities,
closures of a number of existing warehouse facilities and expansions/
reconfigurations of others, dispositions of property and equipment, conversions
of computer systems, reductions in workforce, relocation of employees and
centralization of support functions largely at the Dallas, Texas headquarters.
Completion of the plan is expected to significantly increase operating
efficiencies through warehouse economies of scale, increased deliveries per
truck route and centralized, standardized support processes. Implementation of a
major new computer software and hardware platform (discussed below under
"Computer Systems and Year 2000 Issue") will facilitate the streamlining of
warehouse operations and support processes.
The Company will complete the plan in two phases. The first phase, which
represents a substantial majority of the restructuring actions, is the
consolidation of the quick service business. The integration of the casual
dining business, as discussed below, is the second phase. The Company estimates
cost savings from the quick service consolidation actions of approximately $100
million annually upon the anticipated completion of this phase in mid-2000. The
Company may take additional restructuring actions as the warehouse network
continues to be assessed for optimum efficiency.
The Company has recently completed the restructuring plan to include the
integration of the former ProSource casual dining operations, and the estimated
ProSource exit costs associated with both phases of the plan are reflected in
the preliminary purchase price allocation. The casual dining integration actions
will occur largely in 2000. Final estimates of cost savings from this
integration and all spending to effect it are not yet complete.
The Company is on schedule in its restructuring plan. As of March 15, 1999,
the Company has closed 17 warehouse facilities (including seven former ProSource
facilities) and transferred the business to new or existing facilities. Another
20 closures are planned for the balance of 1999. Five warehouse facilities have
been expanded and/or reconfigured, and four of the remaining five planned for
completion in 1999 are in process and on schedule. Operations have commenced at
three newly constructed state-of-the-art warehouse facilities in Orlando, FL,
Denver, CO and Memphis, TN, and four additional new warehouse facilities planned
for completion in 1999 are under construction and on schedule. As a result of
these actions, warehouse facilities that are complete with respect to
consolidation of the quick service business represent approximately 25% of quick
service net sales.
The Company will incur significant cash costs to effect the restructuring.
Approximately $119 million in cash costs have been accounted for through
restructuring charges in 1997 and 1998 and reserves recorded as part of the
purchase price allocations for PFS and ProSource. (See Notes 2 and 3 to the
historical financial statements of the Company included elsewhere herein.)
Approximately $16 million of this amount was spent over fiscal 1998 and 1997,
and about $45 million is expected to be spent in 1999, primarily representing
employee severance and lease payments related to closed facilities. In addition,
cash integration costs, which are expensed as incurred, totaled approximately
$42 million over fiscal 1998 and 1997, and about $50 million is expected to be
spent in 1999. These integration costs relate primarily to start-up of new
warehouse facilities, activities to realign and centralize administrative and
other support functions and delivery fleet modifications.
20
<PAGE> 23
CUSTOMER ACTIVITIES
Early in 1998, the Company initiated a renegotiation of its long-term
distribution agreement with Tricon, the Company's largest customer, that became
effective July 1997. In September 1998, the Company and Tricon agreed to revise
and extend the agreement from five years to seven and one-half years, with an
additional two and one-half year extension option. Including this option period,
the agreement expires July 2007. The agreement provides that the Company is the
exclusive distributor of a substantial majority of products purchased by
Tricon's U.S. company-owned restaurants, including Pizza Hut and Taco Bell
restaurants sold to franchisees. Service to Tricon company-owned restaurants
under the agreement represented approximately $1.7 billion in net sales in
fiscal 1998.
In April 1997, the Company began providing service to a substantial
majority of restaurants in the Arby's system under a distribution agreement that
was scheduled to expire in April 2000. In December 1998, the Company and ARCOP,
a cooperative of franchisees in the Arby's system, agreed to terminate the
existing agreement and enter into a new agreement that expires in December 2003.
While the majority of the restaurants under the agreement are serviced directly
by the Company, some are serviced by other cooperating independent distributors.
Net sales to Arby's restaurants under the agreement approximate $400 million
annually.
In addition, the Company has been very active in solidifying relationships
with other existing customers, particularly franchisees in the Burger King and
Tricon systems, through long-term contracts (largely five years). Of the
Company's Burger King customer base, about 80% is now under long-term contracts.
Long-term distribution agreements have been secured with a substantial majority
of franchisees in the Pizza Hut and Taco Bell Systems.
Currently, about 70% of the Company's total business is under contracts
with three or more years of remaining term.
As part of the Tricon and other new or revised distribution agreements, the
Company has moved a substantial portion of its business from pricing based on a
percentage mark-up (over cost) to a fee per case mark-up. This change results in
pricing that more closely correlates with the Company's cost structure and
insulates the Company from product cost and mix variability. Currently,
approximately 70% of the Company's business is under fee per case pricing.
In the course of revising or entering into new contracts, the Company in
cooperation with customers has identified supply chain efficiency and cost
reduction opportunities benefiting both parties. These include reduced
deliveries per week, after-hours delivery, electronic ordering and increasing
the time from order to delivery. Also, the Company provides value-added services
to customers such as consolidating purchases of low volume items to reduce the
cost of these products, and management of freight costs in transporting products
from vendors to the Company's centers, which reduces the freight component of
product costs.
During the second half of 1998, the Company discontinued service to Wendy's
company-owned and franchised restaurants as a result of a decision by Wendy's
International, Inc. to transfer its business to a competitor of the Company. Net
sales to the Wendy's concept were approximately $600 million annually, and the
discontinuance is expected to negatively impact the Company's operating profits
by approximately $15 million annually. A charge of $7.2 million was recorded in
1998 for certain costs related to the discontinuance, including equipment lease
terminations and employee severance. (See Note 3 to the historical financial
statements of the Company included elsewhere herein.)
COMPUTER SYSTEMS AND YEAR 2000 ISSUE
The Company's business activity requires the processing of several thousand
transactions on a daily basis in the purchasing, transportation and warehousing
of food and supply items and sale of these items to restaurant customers. The
Company's operational and financial stability is reliant upon the orderly flow
of goods through the entire supply chain; i.e., from providers of food
commodities to food processors to the
21
<PAGE> 24
Company to customers' restaurants and finally to consumers. This flow of goods
depends on the use of computerized systems throughout the supply chain.
The Company has taken a number of steps to assess and remedy its exposure
to the Year 2000 (Y2K) computer program code problem. The Company's findings to
date include:
- As measured by lines of program code, approximately 20% of the Company's
software was not Y2K compliant. Approximately one-third of this code has
been remediated, tested and placed back into production, and the balance
will be completed by mid-1999.
- The remaining 80% of software includes applications that are currently
being replaced by a new software package platform (see discussion below)
and several previously existing software application packages that the
Company will continue to utilize. The providers of the software packages
have certified that their products are Y2K compliant. The Company will,
by mid-1999, perform procedures to verify such compliance.
- The Company has completed an assessment of its computer hardware and
determined that approximately 30% of these devices are not Y2K compliant.
Remediation of this hardware will be completed by mid-1999.
- The Company has completed its assessment of other mechanical equipment
and devices with electronic components possibly susceptible to the Y2K
issue. Risk identified has been minimal, and the majority of upgrades
and/or replacements will be completed by mid-1999.
- The Company has requested information regarding Y2K readiness from 1,600
trading partners, including product suppliers, service providers and
customers. Responses from these trading partners have been evaluated, and
critical risk situations are being assessed for remediation and/or
contingency actions in cooperation with the trading partners.
- The Company is using the services of outside experts to assist internal
resources in the identification and remediation of Y2K issues in the
various areas of exposure discussed above.
Given the environment the Company operates in, with rapid movement of high
volumes of products in cooperation with a large number of trading partners, the
risk of the Y2K issue to the Company is high and could result in a significant
adverse effect on the Company's operations. The Company believes that software
and equipment within its control are or will be timely compliant. The risk lies
principally with the Company's large base of suppliers and customers. Within
these groups there is a wide range of exposure and resources focusing on
potential Y2K issues. The Company is limited in its ability to determine with a
high degree of reliability the state of readiness of trading partners and to
influence these partners to ascertain timely compliance.
The Company has initiated a contingency planning process to deal with
possible disruptions. Contingency plans will be developed by mid-1999 using
existing business continuity plans in a collaborative effort with trading
partners.
As referred to above, the Company is in the process of replacing certain
critical applications and processes within its management information system
with a new software and hardware platform. The software package platform
includes integrated warehouse operations and financial management applications.
The new system will complement the Company's consolidation effort by providing
the flexibility to support those processes that are customer-unique, while
allowing greater standardization and centralization of common processes. The
implementation of the system is on schedule. As of March 15, 1999, the new
system is operating in 12 of the final 21 warehouse facilities planned upon
completion of the quick service network consolidation, and the remaining
facilities will be converted by the third quarter of 1999. With respect to the
former ProSource operations, the Company intends to support the quick service
business with the new system, but in the short-term will continue to utilize
applications currently supporting the casual dining business, which will be Y2K
compliant by mid-1999.
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<PAGE> 25
The current cash costs (excluding leased computer hardware) to implement
the new system and perform the assessment and remediation of the Y2K issue will
approximate $105 million. Approximately $50 million of this amount was spent
over fiscal 1998 and 1997, and the balance of about $55 million is expected to
be spent in 1999. The costs to purchase and develop the software for the new
system are being capitalized. The costs to roll-out the developed software,
largely data conversion and training in nature, and to perform the assessment
and remediation of the Y2K issue are expensed as incurred. The Company believes
the Y2K costs are unusual and one-time in nature and are therefore reported as a
component of "Restructuring and other unusual costs" in the Consolidated
Statements of Operations.
RESULTS OF OPERATIONS
This discussion, as well as the discussion under "Liquidity and Capital
Resources" below, should be read in conjunction with the historical financial
statements of the Company, particularly the Consolidated Statements of
Operations and the Consolidated Statements of Cash Flows.
The following table presents certain financial information of the Company,
expressed as a percentage of net sales:
<TABLE>
<CAPTION>
YEAR ENDED
--------------------------------------------
DECEMBER 28, DECEMBER 27, DECEMBER 26,
1996 1997 1998
------------ ------------ ------------
<S> <C> <C> <C>
Net sales............................................. 100.0% 100.0% 100.0%
Cost of goods sold.................................... 89.9 90.1 90.8
----- ----- -----
Gross profit.......................................... 10.1 9.9 9.2
Distribution, selling and administrative expenses..... 8.2 7.7 7.6
----- ----- -----
Operating income before depreciation of property and
equipment, amortization of intangible assets and
restructuring and other unusual costs............... 1.9% 2.2% 1.6%
===== ===== =====
</TABLE>
FISCAL 1998 COMPARED TO FISCAL 1997
Net sales increased $4.0 billion, or 115% to $7.4 billion in 1998. The
acquisitions of ProSource in May 1998 and PFS in June 1997 accounted for $2.5
billion and $1.5 billion of the increase, respectively. The discontinuance of
the Wendy's business during the third quarter of 1998 was largely offset by the
addition of service to Arby's beginning April 1997.
Gross profit increased $337.8 million, or 99%, to $680.0 million in 1998
due primarily to the acquisitions. The gross profit percentage (margin)
decreased from 9.9% in 1997 to 9.2% in 1998 primarily reflecting the impact of
the ProSource acquisition. ProSource's casual dining business has higher product
case costs as compared to the Company's other business, resulting in a lower
gross profit margin. The Company's profitability is largely determined by the
relationship of the negotiated mark-up, or distribution fee that is added to
product cost to determine sales prices, to the cost of the Company's warehouse,
transportation and administrative activities. Therefore, a decline in the gross
profit margin does not necessarily indicate a decline in profitability in
dollars.
Distribution, selling and administrative expenses increased $295.3 million,
or 111%, to $562.0 million in 1998 due primarily to the acquisitions.
Distribution, selling and administrative expenses as a percent of net sales
decreased from 7.7% in 1997 to 7.6% in 1998. This change reflects both PFS'
lower operating expense margin and the downward effect on the operating cost
margin of the higher case sales prices in ProSource's casual dining business as
compared to the Company's other business (see gross profit discussion above),
partially offset by strategic administrative spending in 1998.
Operating income before depreciation of property and equipment,
amortization of intangible assets and restructuring and other unusual costs
increased $42.6 million, or 56%, to $118.0 million in 1998 due
23
<PAGE> 26
primarily to the acquisitions. As a percent of net sales, this income measure
declined from 2.2% in 1997 to 1.6% in 1998. This change was driven by the lower
gross profit margin as discussed above.
Depreciation of property and equipment increased $14.0 million to $31.1
million in 1998 primarily reflecting the acquisitions. Amortization of
intangible assets increased $17.3 million to $34.1 million in 1998, reflecting
the amortization of the intangible assets primarily arising from the purchase
price allocations for PFS and ProSource.
Restructuring and other unusual costs in 1998 totaled $90.1 million and
included $12.7 million in restructuring (exit) costs primarily for future lease
terminations and employee severance, $16.7 million in impairment of property,
equipment and other assets, $8.6 million in financing fees, fees related to a
modification of the accounts receivable sale program and other one-time indirect
costs associated with the acquisition of ProSource and $52.1 million in expenses
consisting primarily of incremental costs incurred to integrate the acquisitions
and implement the new computer system platform. The restructuring and impairment
charges reflected actions to be taken with respect to the Company's then
existing facilities as a result of the acquisition of ProSource. (See Note 3 to
the historical financial statements of the Company included elsewhere herein.)
Interest expense net of interest income increased $37.6 million to $84.4
million in 1998, reflecting interest on debt issued primarily to finance the
acquisitions.
Loss on sale of accounts receivable relates to an ongoing program
established by the Company to provide additional financing capacity. Under the
program, accounts receivable are sold to a consolidated, wholly owned, special
purpose, bankruptcy-remote subsidiary, which in turn sells the receivables to a
master trust. The loss on sale of accounts receivable of $24.9 million largely
represented the return to investors in certificates issued by the master trust.
(See Note 7 to the historical financial statements of the Company included
elsewhere herein.) The increase of $18.1 million over 1997 reflected the July
1997 inception date as well as expansion of the program, including the addition
of ProSource accounts receivable.
Provision for income taxes represented state income taxes currently payable
and current and deferred foreign income taxes. The Company's net deferred tax
assets are offset entirely by a valuation allowance, reflecting a net operating
loss carryforward position.
Net loss of $147.0 million in 1998 compared to net loss of $74.2 million in
1997 was driven by increases in restructuring and other unusual costs, interest
expense, loss on sale of accounts receivable and amortization of intangible
assets, partially offset by the operating profits from the acquisitions.
COMPARISON OF RESULTS OF OPERATIONS ON A PRO FORMA BASIS
This supplementary information is provided to enhance the analysis of
results of operations. The following pro forma results represent the combined
historical results of the Company, PFS and ProSource for the periods presented
as if the acquisitions had occurred at the beginning of fiscal 1997. These pro
forma combined results do not purport to represent what the actual results would
have been if the acquisitions of PFS and ProSource had occurred at the beginning
of fiscal 1997.
<TABLE>
<CAPTION>
PRO FORMA COMBINED RESULTS
YEAR ENDED
----------------------------------------
DECEMBER 27, 1997 DECEMBER 26, 1998
$ % $ %
-------- ------ -------- ------
<S> <C> <C> <C> <C>
Net sales............................................ $8,907.6 100.0% $9,081.0 100.0%
Cost of goods sold................................... 8,093.4 90.9 8,269.6 91.1
-------- ------ -------- ------
Gross profit......................................... 814.2 9.1 811.4 8.9
Distribution, selling and administrative expenses.... 675.2 7.6 684.9 7.5
-------- ------ -------- ------
Operating income before depreciation, amortization
and restructuring and other unusual costs.......... $ 139.0 1.6% $ 126.5 1.4%
======== ====== ======== ======
</TABLE>
24
<PAGE> 27
Management fees to Holberg Industries, Inc. included in distribution,
selling and administrative expenses were $4.0 million in both years.
The Company estimates that approximately $18.9 million and $6.4 million for
fiscal 1998 and 1997, respectively, in operating cost reductions could be
achieved within the distribution networks of the Company (pre-acquisitions) and
ProSource, even before savings from the integration of the Company, PFS and
ProSource networks. No estimates were developed for ProSource for the periods
prior to its acquisition, and no amounts were estimated for the PFS network as
it was assumed to be reasonably efficient. The results presented have not been
adjusted for such cost savings.
The pro forma net sales growth in 1998 of $173.4 million, or 1.9% over
1997, was driven by growth in case sales to existing customers and the addition
of the Lone Star Steakhouse business, partially offset by lower sales of about
$180 million from the discontinuance of the Wendy's business in the third
quarter of 1998. At the end of the year, stores served by the Company totaled
about 35,600 in 1998 compared to about 38,600 in 1997, including over 700 stores
in Canada and Mexico in both years. The decrease was driven by the
discontinuance of the Wendy's business, closures by Tricon of underperforming
restaurants and resignations by the Company of individually small inefficient
accounts, partially offset by additional units in both the casual dining and
quick serve business of the former ProSource operations.
Pro forma gross profit in 1998 decreased $2.8 million from 1997, and the
gross margin declined .2 of a point to 8.9%. This performance reflected higher
pricing by PFS during the first half of 1997 (prior to acquisition) and the
relatively faster growth of the casual dining business, which has a lower gross
profit margin (see gross profit discussion above) than the quick service
business. Gross profit in 1998 was negatively impacted by $4 million in one-time
unusual charges to cost of sales. Also, some temporary softening of gross
margins occurred in the fourth quarter of 1998 as certain supply chain
efficiency and cost reduction initiatives built into new customer contracts are
phased-in. (See discussion under "Customer Activities" above.)
Pro forma operating expenses in 1998 rose $9.7 million or 1.4% over 1997,
and as a percent of net sales decreased .1 of a point to 7.5%. This performance
reflected the impact of the net sales growth, the effect of certain unusually
low 1997 administrative expenses in the former PFS operations prior to and
immediately following the sale of the business to the Company, as well as
strategic administrative spending in 1998.
FISCAL 1997 COMPARED TO FISCAL 1996
Net sales increased $2.2 billion, or 169% to $3.4 billion in 1997. The
acquisition of PFS accounted for $1.8 billion of the increase. The remaining
sales growth was largely due to the addition of service to Arby's.
Gross profit increased $213.3 million, or 166%, to $342.2 million in 1997
due primarily to the acquisition of PFS. The gross profit margin decreased from
10.1% in 1996 to 9.9% in 1997 reflecting a customer mix shift towards business
with relatively higher product costs.
Distribution, selling and administrative expenses increased $162.2 million,
or 155%, to $266.7 million in 1997 due primarily to the acquisition of PFS.
Distribution, selling and administrative expenses as a percent of net sales
decreased from 8.2% in 1996 to 7.7% in 1997. This change reflects the impact of
PFS's lower operating expense margin, as well as leveraging of the incremental
Arby's business.
Operating income before depreciation of property and equipment,
amortization of intangible assets and restructuring and other unusual costs
increased $51.1 million, or 210%, to $75.5 million in 1997 due primarily to the
acquisition of PFS. As a percent of net sales, this income measure rose from
1.9% in 1996 to 2.2% in 1997. This change was driven by the lower distribution,
selling and administrative expense as a percent of net sales as discussed above.
Depreciation of property and equipment increased $11.9 million to $17.2
million in 1997 primarily reflecting the acquisition of PFS.
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<PAGE> 28
Amortization of intangible assets increased $12.0 million to $16.8 million
in 1997, reflecting the amortization of the intangible assets arising from the
allocation of the PFS purchase price.
Restructuring and other unusual costs in 1997 totaled $52.4 million and
included $13.4 million in restructuring (exit) costs primarily for future lease
terminations and employee severance, $12.4 million in impairment of property,
equipment and other assets, $13.6 million in financing fees, commitment fees
related to the accounts receivable sale program, and other one-time indirect
costs associated with the acquisition of PFS and $13.0 million in expenses
consisting primarily of incremental costs incurred to integrate the operations
of PFS and previous acquisitions. The restructuring and impairment charges
reflected actions to be taken with respect to the Company's then existing
facilities as a result of the acquisition of PFS. (See Note 3 to the historical
financial statements of the Company included elsewhere herein.)
Interest expense net of interest income increased $35.8 million to $46.8
million in 1997, reflecting interest on additional debt primarily to finance the
acquisition of PFS.
Loss on sale of accounts receivable relates to a program established by the
Company in July 1997 to provide additional financing capacity. Under this
ongoing program, accounts receivable are sold to a consolidated, wholly owned,
special purpose, bankruptcy-remote subsidiary, which in turn sells the
receivables to a master trust. The loss on sale of accounts receivable of $6.8
million largely represented the return to investors in certificates issued by
the master trust. (See Note 7 to the historical financial statements of the
Company included elsewhere herein).
Provision for income taxes primarily represented estimated amounts
currently payable. The Company's net deferred tax assets are offset entirely by
a valuation allowance, reflecting a net operating loss carryforward position.
Extraordinary loss of $9.4 million in 1997 resulted from early
extinguishment of debt. This charge represents the unamortized balance of
deferred financing costs associated with previous credit facilities.
Net loss of $74.2 million in 1997 compared to net income of $2.5 million in
1996 was driven by the restructuring and other unusual costs, the extraordinary
loss on early extinguishment of debt, the loss on sale of accounts receivable,
as well as increases in interest expense and amortization of intangible assets,
partially offset by the operating profits from PFS.
LIQUIDITY AND CAPITAL RESOURCES
The Company's sources of liquidity include cash provided by operating
activities, a credit facility of up to $220 million, of which $151.2 million was
available and $39.9 million was used (through borrowings and letters of credit)
at December 26, 1998, proceeds from the accounts receivable program of up to
$485 million, of which $445 million was available and was fully used at December
26, 1998, proceeds from sales of warehouse facilities and lease financing of new
warehouse facilities, delivery fleet, material handling equipment and computer
hardware requirements.
In late March 1999, an amendment to the credit facility was completed that
allows the Company up to $30 million in letters of credit before usage of the
facility is impacted, resulting in additional current liquidity in this amount.
Also at that time, NEHC provided $25 million in a cash capital contribution to
the Company.
The Company believes that its liquidity sources will be adequate to fund
the approximately $150 million in 1999 cash needs for the restructuring actions
and computer systems initiatives (discussed above under "Business Restructuring"
and "Computer Systems and Year 2000 Issue", respectively). Cash capital
expenditures for 1999 in addition to amounts included in the computer systems
initiatives are estimated to be about $25 million.
26
<PAGE> 29
FISCAL 1998 COMPARED TO FISCAL 1997
Net cash used for operating activities was $109.5 million in 1998 compared
to cash provided of $62.8 million in 1997. This change was led by higher
interest payments of $68.7 million, an unfavorable change related to accounts
receivable of $55.4 million due primarily to the effect on collections of the
relative timing of the 1998 and 1997 fiscal year-ends and the Christmas holiday,
increased restructuring and integration spending of about $36 million (including
$13.6 million in payments charged to restructuring reserves) and $24.1 million
in an unfavorable change in timing of accounts payable payments. These changes
were partially offset by the cash operating profits from the acquired PFS and
ProSource businesses.
Net cash used for investing activities decreased $497.6 million to $380.3
million in 1998, primarily due to the difference in the purchase prices of
ProSource and PFS. Capital expenditures increased $45.6 million to $68.5
million, reflecting the capitalization of software purchased and developed for
the new computer software platform discussed under "Computer Systems and Year
2000 Issue" above, as well as the impact of the acquisitions.
Net cash provided by financing activities of $263.3 million in 1998
reflected additional proceeds from the accounts receivable program in connection
with the ProSource acquisition and a restructuring of the program. (See Note 7
to the historical financial statements of the Company included elsewhere
herein.) Also, NEHC provided $50 million in a cash capital contribution.
SEASONALITY AND GENERAL PRICE LEVELS
Historically, the Company's operating results have reflected seasonal
variations. The Company experiences lower net sales and operating profits in the
first and fourth calendar quarters, with the effects being more pronounced in
the first quarter. Additionally, the effect of these seasonal variations is more
pronounced in regions where winter weather is generally more inclement. The
Company is in the process of adopting a 13-period fiscal calendar (see Note 1 to
the historical financial statements of the Company included elsewhere herein).
Under this calendar, the first three quarters consist of 12 weeks and the fourth
quarter consists of 16 weeks. As a result, reported net sales and operating
profits for the fourth quarter will not necessarily decline from the second and
third quarters.
Inflation has not had a significant impact on the Company's operations.
Food price deflation could adversely affect the Company's profitability as
approximately 30% of the Company's sales are at prices based on product cost
plus a percentage markup.
CAUTIONARY STATEMENTS
RESTRUCTURING RISK
As discussed above under "Business Restructuring," the Company is in the
process of implementing a comprehensive restructuring involving consolidation
and transfer of business among warehouse facilities, re-routing of truck
deliveries, consolidation and streamlining of support functions and relocation
and training of employees. The Company is investing significant cash
expenditures to effect the restructuring plan, with the expectation of
substantial cost savings upon its completion.
While the Company has made important progress, there can be no assurance
that the restructuring actions will be completed on time, that business
operations will not be disrupted during the restructuring period, that spending
will be within projected levels and that the expected cost savings will be
achieved. While management believes it has the resources to meet the objectives,
the ultimate level and timing of efficiencies to be realized are subject to the
Company's ability to manage through the complexities of the restructuring plan
and respond to unanticipated events.
27
<PAGE> 30
COMPUTER SYSTEMS RISK
As discussed above under "Computer Systems and Year 2000 Issue," the
Company is implementing a new computer software and hardware platform that will
allow standardization and centralization of warehouse operations and support
processes. The Company is also actively identifying and remediating Y2K code
problems in applications that will not be replaced by the new system. These
activities are occurring concurrently with the Company's restructuring actions.
While the Company has made important progress, there can be no assurance
that the system implementation and Y2K remediation efforts will be completed on
time, that business operations will not be disrupted and that spending will be
within projected levels.
INDUSTRY AND CUSTOMER RISK
The Company's future results are subject to economic and competitive risks
and uncertainties in the chain restaurant and foodservice distribution
industries and in the economy, generally. The trend of consolidation in the
foodservice distribution industry, as evidenced by the Company's acquisition
activity, may further intensify competitive pressures. While the Company will
take appropriate actions to retain desired business, some loss of customers
during this transition period has occurred and is a continuing risk. In
addition, the activities associated with the restructuring plan and computer
systems initiatives increase the risk of business disruption; therefore, there
can be no assurance of the Company's consistent achievement of service level
requirements set forth in customer contracts. Management believes that
completion of the restructuring plan will enhance the Company's position as one
of the most efficient distributors in its industry and, therefore, highly
competitive in pricing and customer service.
With respect to risk of customer concentration, including ProSource net
sales on a pro forma basis, approximately 21% of the Company's net sales are to
Tricon and 10% are to Darden Restaurants, Inc., which owns all the Red Lobster
and Olive Garden restaurants. The Company provides service to Tricon's U.S.
company-owned restaurants under a long-term exclusive distribution agreement
discussed above under "Customer Activity." Tricon is actively engaged in the
sale to franchisees of company-owned restaurants covered by the distribution
agreement. While the distribution agreement provides that prior to sales of
Pizza Hut and Taco Bell restaurants, such franchisees will enter into
distribution agreements on substantially similar terms, there can be no
assurance that the transition from company-owned to franchised status will not
affect the Company's results. The Company provides service to Red Lobster and
Olive Garden restaurants under exclusive distribution agreements effective June
1997 and expiring in May 2002.
MARKET RISK
The Company's Senior Notes and Senior Subordinated Notes carry fixed
interest rates and, therefore, do not expose the Company to the risk of earnings
or cash flow loss due to changes in market interest rates.
The Company is exposed to market interest rates in connection with its
accounts receivable program and credit facility. As discussed above under
"Results of Operations," the loss on sale of accounts receivable as reported in
the Consolidated Statements of Operations largely represents the return to
investors in variable interest rate certificates issued by a master trust to
which the rights of ownership of a substantial majority of the Company's
accounts receivable have been transferred. At December 26, 1998, the master
trust had certificates outstanding in the amount of $445 million. At this level,
a one-point change in interest rates would impact the annual loss on sale of
accounts receivable by $4.5 million. Borrowings against the Company's credit
facility, which totaled $4 million at December 26, 1998, carry variable interest
rates. (See Notes 6 and 7 to the historical financial statements of the Company
included elsewhere herein.)
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<PAGE> 31
At December 26, 1998, the Company is not engaged in other contracts which
would cause exposure to the risk of material earnings or cash flow loss due to
changes in market commodity prices, foreign currency exchange rates or interest
rates.
RISK OF LEVERAGE
The Company is and will continue to be highly leveraged as a result of the
indebtedness incurred in connection with the acquisitions. The Company's ability
to meet interest payments, refinance the debt or ultimately repay the debt is
subject to the risks and uncertainties discussed above.
For additional factors that could cause the Company's actual results to
differ materially from expected and historical results, see "Risk Factors."
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THE BUSINESS
AmeriServe, a Delaware corporation, is a wholly owned subsidiary of Nebco
Evans Holding Company, a Delaware corporation. NEHC is also the parent company
of Holberg Warehouse Properties, Inc., a Delaware corporation ("HWPI").
AmeriServe accounts for substantially all of NEHC's assets and NEHC conducts
substantially all of its business through AmeriServe. HWPI's sole operation
consists of owning two distribution centers occupied by AmeriServe. AmeriServe
operates in a single business segment, as described below.
NEHC is a wholly owned subsidiary of Nebco Evans Distributors, Inc.
("NED"), which is a majority owned subsidiary (92.9%) of Holberg Industries,
Inc. Holberg is a privately held diversified service company with subsidiaries
operating within the foodservice distribution and parking services industries in
North America. Holberg was formed in 1986 to acquire and manage foodservice
distribution businesses. Holberg acquired NEBCO Distribution of Omaha, Inc. in
1986. NEBCO acquired Evans Brothers Company in January 1990 and the combined
company was renamed NEBCO EVANS Distribution, Inc. NEBCO EVANS acquired L.L.
Distribution Systems Inc. in 1990, Condon Supply Company in 1991 and AmeriServ
Food Company, a distributor of food products and supplies to chain restaurants
in such systems as Wendy's, Dairy Queen, Burger King, KFC and Applebee's, in
January 1996. In conjunction with the AmeriServ acquisition, on January 25,
1996, NEHC was formed as a wholly-owned subsidiary of NED and acquired all of
the stock of NEBCO EVANS. In April 1997, NEBCO EVANS, a Nebraska corporation,
changed its name to AmeriServe Food Distribution, Inc.
AmeriServe is North America's largest systems foodservice distributor
specializing in distribution to chain restaurants. The Company is the primary
supplier to its customers of a wide variety of items, including fresh and frozen
meat and poultry, seafood, frozen foods, canned and dry goods, fresh and pre-
processed produce, beverages, dairy products, paper goods, cleaning supplies and
equipment. The Company currently serves over 30 different restaurant chains and
approximately 36,000 restaurant locations in North America. The Company has had
long-standing relationships with such leading restaurant concepts as Applebee's,
Arby's, Burger King, Chick-fil-A, Chili's, Dairy Queen, KFC, Lone Star
Steakhouse, Long John Silver's, Olive Garden, Pizza Hut, Red Lobster, Sonic,
Subway, Taco Bell, TCBY, and TGI Friday's.
On July 11, 1997, the Company acquired the U.S. and Canadian operations of
PFS, a division of PepsiCo, Inc. PFS distributed food products and supplies and
restaurant equipment to franchised and company-operated restaurants in the Pizza
Hut, Taco Bell and KFC systems. These systems were spun-off by PepsiCo in
October 1997 and are now operating as TRICON Global Restaurants, Inc. In
addition, in connection with the PFS Acquisition, the Company entered into a
distribution agreement whereby it became the exclusive distributor of selected
products until July 11, 2002 to the approximately 9,800 Pizza Hut, Taco Bell and
KFC restaurants in the continental United States owned by Pizza Hut, Inc., Taco
Bell Corp., Kentucky Fried Chicken Corporation and, Kentucky Fried Chicken of
California, Inc. (all subsidiaries of Tricon) and their subsidiaries and
previously serviced by PFS. The Distribution Agreement was modified and extended
in 1998. See "Recent Customer Developments" below.
In October 1997, AmeriServe also acquired PFS de Mexico, S.A. de C.V., a
regional systems foodservice distributor based in Mexico City, Mexico for $8
million.
On July 11, 1997, in connection with the PFS Acquisition, the Company
issued and sold $500 million principal amount of its 10 1/8% Senior Subordinated
Notes due 2007 pursuant to an Indenture, dated as of July 11, 1997, by and among
the Company, certain of the Company's subsidiaries and State Street Bank and
Trust Company as Trustee. The Senior Subordinated Notes were sold pursuant to
exemptions from, or in transactions not subject to, the registration
requirements of the Securities Act and applicable state securities laws. On
December 12, 1997, the Company consummated an offer to exchange the Senior
Subordinated Notes for new Senior Subordinated Notes, which are registered under
the Securities Act with terms substantially identical to the Senior Subordinated
Notes. See Note 6 to the historical financial statements of the Company included
elsewhere herein.
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<PAGE> 33
On October 15, 1997, AmeriServe issued and sold $350 million in aggregate
principal amount at maturity of its 8 7/8% Senior Notes due 2006 pursuant to an
Indenture, dated as of October 15, 1997, by and among the Company, the
Subsidiary Guarantors and State Street Bank and Trust Company, as trustee. The
Senior Notes were sold pursuant to an exemption from or in transactions not
subject to, the registration requirements of the Securities Act. On December 12,
1997, AmeriServe consummated an offer to exchange the Senior Notes for new
Senior Notes, which are registered under the Securities Act, with terms
substantially identical to the Senior Notes. For further information, see Notes
6 and 7 to the historical financial statements of the Company included elsewhere
herein.
On December 28, 1997, Nebraska AmeriServe merged with and into AmeriServ
and The Harry H. Post Company, a wholly owned subsidiary of AmeriServe, merged
with and into AmeriServ. In the mergers, AmeriServ changed its name to
AmeriServe Food Distribution, Inc. The Company effected the mergers to
rationalize its corporate organization and to reduce various compliance and
regulatory costs arising from having subsidiaries incorporated in various
jurisdictions and to move its jurisdiction of incorporation from Nebraska to
Delaware.
On May 21, 1998, the Company acquired all of the outstanding stock of
ProSource, Inc. ProSource, which reported net sales of $3.9 billion for its
fiscal year ended December 27, 1997, was in the food service distribution
business, specializing in quick service and casual dining chain restaurants.
ProSource serviced approximately 12,700 restaurants, principally in the United
States, including such chains as Burger King, Chick-fil-A, Chili's, Long John
Silver's, Olive Garden, Red Lobster, Sonic, TCBY and TGI Friday's. Funding of
the acquisition and related transactions included $125 million provided by
expansion of the Company's Accounts Receivable Program to include ProSource
accounts receivable (see Note 7 to the historical financial statements of the
Company included elsewhere herein), a $50 million capital contribution to the
Company from NEHC and cash and cash equivalents on hand.
For further information about financings by AmeriServe in connection with
the ProSource acquisition and subsequently, see Notes 6 and 7 to the historical
financial statements of the Company included elsewhere herein.
On December 27, 1998, ProSource Services Corporation, a wholly owned
subsidiary of ProSource, merged with and into ProSource and ProSource merged
with and into AmeriServe. The Company effected the mergers to rationalize its
corporate organization.
FOODSERVICE DISTRIBUTION INDUSTRY
The foodservice distribution business involves the purchasing, receiving,
warehousing, marketing, selecting, loading and delivery of fresh and frozen meat
and poultry, seafood, frozen foods, canned and dry goods, fresh and preprocessed
produce, beverages, dairy products, paper goods, cleaning supplies, equipment
and other supplies from manufacturers and vendors to a broad range of
enterprises, including restaurants, cafeterias, nursing homes, hospitals, other
health care facilities and schools (but generally does not include supermarkets
and other retail grocery stores). The United States foodservice distribution
industry was estimated to generate $140 billion in sales in 1998.
Within the foodservice distribution industry, there are two primary types
of distributors: broadline foodservice distributors and specialist foodservice
distributors, such as the Company. Broadline foodservice distributors service a
wide variety of customers including both independent and chain restaurants,
schools, cafeterias and hospitals. Broadline distributors may purchase and
inventory as many as 25,000 different food and food-related items. Customers
utilizing broadline foodservice distributors typically purchase inventory from
several distributors. Specialist foodservice distributors may be segregated into
three categories: product specialists, which distribute a limited number of
products (such as produce or meat); market specialists, which distribute to one
type of restaurant (such as Mexican); and systems specialists, which focus on
one type of customer (such as chain restaurants or health care facilities).
The Company operates as a systems distributor that specializes in servicing
chain restaurants. Systems specialists, such as the Company, typically purchase
and inventory between 1,100 and 5,500 different food
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<PAGE> 34
and food-related items and often serve as a single source of supply for their
customers. Broadline foodservice distributors generally rely on sales
representatives who must call on customers regularly. Systems distributors,
however, regularly process orders electronically without the need for a sales
representative's involvement.
BUSINESS STRATEGY
The Company's strategy is to: (i) pursue profitable internal and external
growth opportunities; (ii) capitalize on its nationwide network of distribution
centers to increase customer density and regional market penetration; (iii)
continue to provide low cost, superior customer service; and (iv) maximize
operating leverage by integrating and consolidating the Company, PFS and
ProSource quick service and casual dining businesses and by pursuing selective
acquisitions within the fragmented foodservice distribution industry.
CUSTOMERS
The Company's customers are generally owners and/or franchisees of chain
restaurant concepts. The Company's customers include over 30 restaurant concepts
with approximately 36,000 restaurant locations. The corporate owner or
franchiser of the restaurant concept generally reserves the right to designate
one or more approved foodservice distributors within a geographic region, and
each franchisee is typically allowed to select its foodservice distributor from
such approved list.
Including sales to company-owned and franchised restaurants, the Company's
sales to the following restaurant concepts as an approximate percentage of total
pro forma sales (including ProSource for all of 1998 and PFS for all of 1997)
but excluding net sales to the Wendy's concept in 1998 (sales to the Wendy's
concept were discontinued during 1998) were:
<TABLE>
<CAPTION>
1997 1998
---- ----
<S> <C> <C>
Burger King................................................. 5% 25%
Taco Bell................................................... 29% 17%
Pizza Hut................................................... 27% 16%
KFC......................................................... 12% 7%
Red Lobster................................................. -- 7%
Arby's...................................................... 7% 4%
Wendy's..................................................... 11% --
</TABLE>
On a pro forma basis, assuming the inclusion of ProSource for the full
year, restaurants owned by Tricon accounted for approximately 21% of the
Company's 1998 sales. Darden Restaurants, Inc., which owns all the Red Lobster
and Olive Garden Restaurants, accounted for approximately 10% of 1998 pro forma
net sales. No other customer accounted for more than 10% of 1998 sales on either
a pro forma or reported basis.
RECENT CUSTOMER DEVELOPMENTS
Early in 1998, the Company initiated a renegotiation of its long-term
distribution agreement with Tricon, the Company's largest customer, that became
effective July 1997. In September 1998, the Company and Tricon agreed to revise
and extend the agreement from five years to seven and one-half years, with an
additional two and one-half year extension option. Including this option period,
the agreement expires July 2007. The agreement provides that the Company is the
exclusive distributor of a substantial majority of products purchased by
Tricon's U.S. company-owned restaurants, including Pizza Hut and Taco Bell
restaurants sold to franchisees. Service to Tricon company-owned restaurants
under the agreement represented approximately $1.7 billion in net sales in
fiscal 1998.
In April 1997, the Company began providing service to a substantial
majority of restaurants in the Arby's system under a distribution agreement that
was scheduled to expire in April 2000. In December
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<PAGE> 35
1998, the Company and ARCOP, a cooperative of franchisees in the Arby's system,
agreed to terminate the existing agreement and enter into a new agreement that
expires in December 2003. While the majority of the restaurants under the
agreement are serviced directly by the Company, some are serviced by other
cooperating independent distributors. Net sales to Arby's restaurants under the
agreement approximate $400 million annually.
In addition, the Company has been very active in solidifying relationships
with other existing customers, particularly franchisees in the Burger King and
Tricon systems, through long-term contracts (largely five years). Of the
Company's Burger King customer base, about 80% is now under long-term contracts.
Long-term distribution agreements have been secured with a substantial majority
of franchisees in the Pizza Hut and Taco Bell Systems.
Currently, about 70% of the Company's total business is under contracts
with three or more years of remaining term.
As part of the Tricon and other new or revised distribution agreements, the
Company has moved a substantial portion of its business from pricing based on a
percentage mark-up (over cost) to a fee per case mark-up. This change results in
pricing that more closely correlates with the Company's cost structure and
insulates the Company from product cost and mix variability. Currently,
approximately 70% of the Company's business is under fee per case pricing.
In the course of revising or entering into new contracts, the Company in
cooperation with customers has identified supply chain efficiency and cost
reduction opportunities benefiting both parties. These include reduced
deliveries per week, after-hours delivery, electronic ordering and increasing
the time from order to delivery. Also, the Company provides value-added services
to customers such as consolidating purchases of low volume items to reduce the
cost of these products, and management of freight costs in transporting products
from vendors to the Company's centers, which reduces the freight component of
product costs.
During the second half of 1998, the Company discontinued service to Wendy's
company-owned and franchised restaurants as a result of a decision by Wendy's
International, Inc. to transfer its business to a competitor of the Company. Net
sales to the Wendy's concept were approximately $600 million annually, and the
discontinuance is expected to negatively impact the Company's operating profits
by approximately $15 million annually. A charge of $7.2 million was recorded in
1998 for certain costs related to the discontinuance, including equipment lease
terminations and employee severance. (See Note 3 to the historical financial
statements of the Company included elsewhere herein.)
OPERATIONS AND DISTRIBUTION
The Company's operations generally can be categorized into three business
processes: product replenishment, product storage and order fulfillment. Product
replenishment involves the management of logistics from the vendors through the
delivery of products to the Company's distribution centers. Product storage
involves the warehousing and rotation of temperature-controlled inventory at the
distribution centers pending sale to customers. Order fulfillment involves all
activities from customer order placement and selecting and loading through
delivery from the distribution centers to the restaurant location. Supporting
these processes is the Company's nationwide network of 61 distribution centers,
its fleet of approximately 1,500 tractors and 2,100 trailers and its management
information systems. Substantially all of the Company's products are purchased,
stored and delivered in sealed cases which the Company does not open or alter.
In connection with the PFS Acquisition and ProSource Acquisition, the Company
expects to reduce the number of current distribution centers to 28, including
four redistribution, one equipment, and two international centers. In order to
accomplish this consolidation, the Company will operate its business in new and
larger facilities. See "Management's Discussion and Analysis of Financial
Condition and Results of Operations -- Business Restructuring."
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<PAGE> 36
PRODUCT REPLENISHMENT
While the Company is responsible for purchasing products to be delivered to
its customers, chain restaurants typically approve the vendors and negotiate the
price for their proprietary products. The Company determines the distribution
centers that will warehouse products for each customer and the quantities in
which such products will be purchased. Order quantities for each product are
systematically determined for each distribution center, taking into account both
recent sales history and projected customer demand. The distribution centers
selected to serve a customer are based on the location of the restaurants to be
serviced.
PRODUCT STORAGE
The Company currently warehouses approximately 1,100 to 5,500 stock keeping
units ("SKUs") (excluding the redistribution and equipment distribution centers)
for its customers at 61 facilities located throughout the United States, Canada
and Mexico. Upon receipt of the product at the distribution centers, the product
is inspected and stored on pallets, in racks or in bulk in the appropriate
temperature-controlled environment. Products stored at the distribution centers
are generally not reserved for a specific customer. Rather, customer orders are
filled from the common inventory at the relevant distribution center. The
Company's computer systems continuously monitor inventory levels in an effort to
maintain optimal levels, taking into account required service levels, buying
opportunities and capital requirements. Each distribution center contains
ambient, refrigerated (including cool docks) and frozen space, as well as
offices for operations, sales and customer service personnel and a computer
network, accessing systems at other distribution centers and the Company's
corporate support centers.
A majority of the Company's distribution centers are between 100,000 to
200,000 square feet with approximately 20% refrigerated storage space, 30%
frozen storage space and 50% dry storage area. The Company uses sophisticated
logistics programs to strategically locate new distribution centers in areas
near key highways with specific consideration given to the proximity of
customers and suppliers. The Company also employs consultants in distribution
center layout and product flow to design the distribution center with the
objective of maximizing product throughput. The Company estimates that each
distribution center can effectively service customers within a 350 mile radius,
although the Company's objective is to service customers within a 150 mile
radius.
ORDER FULFILLMENT
The Company places a significant emphasis on providing high quality service
in order fulfillment. By providing high quality service and reliability, the
Company believes it can reduce the number of reorders and redeliveries, reducing
costs for both the Company and its customers. Each restaurant places product
orders based on recent usage, estimated sales and existing restaurant
inventories. The Company uses its management information systems to continually
update routes and delivery times with each customer in order to lower
fulfillment costs. Product orders are placed with the Company one to three times
a week either through the Company's customer service representatives or through
electronic transmission using specially designed software. Many of the
restaurants served by the Company transmit product orders electronically.
Once ordered by the customer, products are picked and labeled at each
distribution center, and the products are generally placed on a pallet for the
loading of outbound trailers. Delivery routes are scheduled to both fully
utilize the trailer's load capacity and minimize the number of miles driven in
order to exploit the cost benefit of customer density.
FLEET
The Company operates a fleet of approximately 1,500 tractors and 2,100
trailers through its subsidiary, AmeriServe Transportation, Inc. The Company
leases approximately 480 tractors from Penske Truck Leasing pursuant to
full-service leases that include maintenance. The Company also leases
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<PAGE> 37
approximately 390 tractors from General Electric Capital Corp. which are
maintained through Penske Truck Leasing, UPS Truck Leasing and other national
maintenance providers. The Company owns approximately 540 tractors and 870
trailers, which are maintained by national maintenance providers. The remaining
tractors (approximately 90) and trailers (approximately 1,230) are leased under
finance leases (which equipment is maintained by national maintenance providers)
or full-service leases (which include maintenance) from a variety of leasing
companies. Lease terms average six years for new tractors and nine years for new
trailers. Licensing and fuel tax reporting for the entire fleet is provided by
J.J. Keller & Associates, Inc.
Most of the Company's tractors contain onboard computers. The computers
assist in managing fleet operations and provide expense controls, automated
service level data collection and real-time driver feedback, thereby enhancing
the Company's service level to customers. Data from the onboard computers are
loaded into the routing software after each route in order to continually
optimize the route structure. Substantially all of the Company's trailers
contain temperature-controlled compartments, which allow the Company to
simultaneously deliver frozen food, refrigerated food and dry goods.
MANAGEMENT INFORMATION SYSTEMS
AmeriServe and the former PFS and ProSource businesses currently operate
with different computer systems. AmeriServe utilizes a variety of personal
computers and IBM AS/400-based software applications. PFS and ProSource also
operate with a variety of applications, the core of which are mainframe-based.
Programs in use include various customized and special-purpose applications,
such as warehouse management tools, remote order entry, automated replenishment,
delivery routing, and onboard computers for delivery trucks.
The Company is in the process of replacing its core applications with
software from J.D. Edwards in order to integrate the systems of AmeriServe, PFS
and ProSource. This conversion process is progressing and is expected to be
substantially completed by mid-1999 and will result in all of the Company's
quick service distribution centers operating with the same computer systems and
the same operating policies and practices.
PROCUREMENT, LOGISTICS AND REDISTRIBUTION
The Company procures a wide range of food, paper and cleaning products for
ultimate distribution to its chain restaurant customers. The Company also
operates two redistribution centers for the purpose of purchasing slow-moving
inventory items and consolidating these items into full truckload shipments to
the Company's distribution centers nationally, as well as to customers outside
the Company. The Company also offers redistribution services to customers
outside of the continental United States.
The Company operates a freight logistics division for the purpose of
achieving the lowest landed costs to its distribution centers through the review
of purchase orders generated at the various distribution centers. The Company
generates freight savings through leveraged purchasing, with key carriers
operating in defined traffic lanes. This division also provides logistical
services to a substantial number of customers outside of the Company on a fee
basis. Current inbound purchase orders controlled by this division exceed 6,000
truckloads monthly. Further, the Company operates a nationally registered common
carrier fleet of temperature-controlled tractor-trailer units. This division
serves as a "core-carrier" to several national food manufacturers and is an
integral part of the Company's inbound freight logistics initiative.
MARKETING AND CUSTOMER SERVICE
The Company employs national and regional marketing representatives who
service existing customers, as well as focus on developing new customers from
among other restaurant concepts. Additionally, each division president and
certain members of senior management are active in maintaining relationships
with current and potential customers. The Company compensates its sales and
marketing representatives under various compensation plans, which combine a base
pay with an incentive bonus.
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<PAGE> 38
The Company's customer service activities are highly customized to the
unique needs of each customer. Each customer has a dedicated account manager who
is responsible for overseeing all of a customer's needs and coordinating the
services provided to such customer. In order to manage problem resolution, the
Company tracks customer calls to ensure that appropriate action and follow-up
occur. The Company's representatives travel frequently to the customer's
restaurant or office for regularly scheduled meetings and key project reviews to
ensure close coordination between the Company and the customer.
A key component of the Company's marketing plan is the use of customized
information systems to improve customer service, and to assist the customer in
the daily operation of its business. The Company utilizes on-line order entry
inventory systems, which permit the Company to simultaneously take orders,
compare the order to previous orders, track and replenish inventory and schedule
the delivery. In addition to placing orders, certain customers may also access
their own accounts, and inventory information, and print copies of order
acknowledgments, invoices and account statements. This electronic data
interchange system provides certain customers with access to the Company's
information systems at their convenience and enables the Company to accept
orders 24 hours a day, seven days a week. The electronic data interchange not
only allows for greater efficiencies, but also produces reduced administrative
expenses and fewer ordering errors.
COMPETITION
The foodservice distribution industry is highly competitive. Competitors
include other systems distribution companies focused on the chain restaurants,
captive distribution companies owned by restaurant companies and broadline
foodservice distributors.
The Company competes directly with other systems specialists that target
chain restaurant concepts. The Company's principal competitors are Sysco
Corporation's Sygma division, McLane's, Marriott Distribution Services Inc.,
Alliant Foodservice Inc., Performance Food Group, U.S. Foodservice, MBM Corp.
and PYA Monarch. The Company also competes with regional and local distributors
in the foodservice industry, principally for business from franchisee-owned
chain restaurants. National and regional chain restaurant concepts typically
receive service from one or more systems distributors. Distributors are
appointed or approved to service these concepts and/or their franchisees on
either a national or regional basis. The Company believes that distributors in
the foodservice industry compete on the basis of quality, reliability of service
and price. Because a number of the Company's customers prefer a distributor that
is able to service their restaurants on a nationwide basis, the Company believes
it is in a strong position to retain and compete for national chain restaurant
customers and concepts.
Opportunities for growth by gaining access to new chains typically occur at
the expense of a competitor and are awarded in a bid or negotiation situation,
in which large blocks of business are awarded to the most efficient distributor.
The Company believes that a key competitive advantage is continuously pursuing a
strategy of being the low-cost provider of distribution and other value-added
services within the industry.
LITIGATION
From time to time the Company is involved in litigation relating to claims
arising out of their normal business operations. The Company is not currently
engaged in any legal proceedings that are expected, individually or in the
aggregate, to have a material adverse effect on the Company.
REGULATORY MATTERS
The Company is subject to a number of federal, state and local laws,
regulations and codes, including those relating to the protection of human
health and the environment, compliance with which has required, and will
continue to require, capital and operating expenditures. The Company believes
that it is in compliance, in all material respects, with all such laws,
regulations and codes. The Company, however, is not able to predict the impact
of any changes in the requirements or mode of enforcement of these laws,
regulations and codes on its operating results.
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ENVIRONMENTAL MATTERS
Under applicable environmental laws, the Company may be responsible for
remediation of environmental conditions and may be subject to associated
liabilities (including liabilities resulting from lawsuits brought by private
litigants) relating to its distribution centers and the land on which its
distribution centers are situated, regardless of whether the Company leases or
owns the land in question and regardless of whether such environmental
conditions were created by the Company or by a prior owner or tenant.
The Company believes it currently conducts its business, and in the past
has conducted its business, in substantial compliance with applicable
environmental laws and regulations. In addition, compliance with federal, state
and local laws enacted for protection of the environment has had no material
effect on the Company. However, there can be no assurance that environmental
conditions relating to prior, existing or future distribution centers or
distribution center sites will not have a material adverse effect on the
Company.
In connection with the PFS and ProSource Acquisitions, the Company reviewed
existing reports and retained environmental consultants to conduct an
environmental audit of their respective operations in order to identify
conditions that could have material adverse effects on the Company. The Company
has obtained final reports on the results of such audits with regard to PFS and
ProSource, which concluded that there are no environmental matters that are
likely to have a material adverse effect on the Company.
EMPLOYEES
As of December 26, 1998, the Company had approximately 8,000 full-time
employees, approximately 600 of whom were employed in corporate support
functions and approximately 7,400 of whom were warehouse, transportation, sales,
and administrative staff at the distribution centers. As of such date,
approximately 900 of the Company's employees were covered by 11 collective
bargaining agreements. Five collective bargaining agreements covering
approximately 450 employees expire in 1999. The Company has not experienced any
material labor disputes or work stoppages and believes that its relationships
with its employees are good.
FACILITIES
The Company leases approximately 125,000 square feet of headquarters office
space in Addison, Texas, a suburb of Dallas.
The Company currently operates 61 distribution centers located throughout
the United States, Canada and Mexico and is constructing four new distribution
centers as follows:
<TABLE>
<CAPTION>
APPROXIMATE
LOCATION SQUARE FEET LEASED/OWNED
-------- ----------- ------------
<S> <C> <C>
Albany, NY.................................................. 104,000 Leased
Arlington, TX(4)............................................ 105,600 Leased
Atlanta, GA(4).............................................. 157,000 Leased
Atlanta, GA(2).............................................. 230,000 Leased
Bell, CA.................................................... 91,792 Leased
Burlington, NJ.............................................. 60,880 Owned
Charlotte, NC(4)............................................ 158,500 Owned
Charlotte, NC(4)............................................ 91,771 Leased
Charlotte, NC(2)............................................ 190,000 Leased
Chester, NY................................................. 131,400 Leased
Columbus, OH................................................ 143,903 Leased
Conroe, TX(4)............................................... 33,900 Owned
Denver, CO.................................................. 165,000 Leased
</TABLE>
37
<PAGE> 40
<TABLE>
<CAPTION>
APPROXIMATE
LOCATION SQUARE FEET LEASED/OWNED
-------- ----------- ------------
<S> <C> <C>
Douglasville, GA(4)......................................... 60,670 Owned
Farmingdale, NY............................................. 35,000 Leased
Fort Worth, TX.............................................. 113,000 Leased
Fredericksburg, VA.......................................... 53,000 Owned
Fullerton, CA............................................... 61,740 Leased
Grand Prairie, TX(4)........................................ 32,200 Owned
Grand Rapids, MI............................................ 180,000 Owned
Greensboro, NC(4)........................................... 41,000 Owned
Gridley, IL................................................. 146,100 Owned
Gulfport, MS................................................ 63,792 Leased
Harahan, LA(4).............................................. 36,180 Leased
Hebron, KY.................................................. 124,000 Leased
Houston, TX(4).............................................. 69,800 Leased
Houston, TX(2).............................................. 150,000 Leased
Indianapolis, IN(4)......................................... 115,200 Leased
Indianapolis, IN(3)......................................... 180,100 Leased
Industry, CA................................................ 92,000 Leased
Jonesboro, GA(4)............................................ 124,076 Leased
Kansas City, MO(2).......................................... 240,000 Leased
Lemont, IL(1)............................................... 105,000 Leased
Lenexa, KS(4)............................................... 105,600 Leased
Lenexa, KS(4)............................................... 35,778 Leased
Lenexa, KS(4)............................................... 26,172 Leased
Lewisville, TX.............................................. 105,000 Leased
Madison, WI(1).............................................. 123,000 Leased
Manassas, VA................................................ 100,337 Owned
Memphis, TN................................................. 122,500 Leased
Mexico City, MX............................................. 35,000 Leased
Milwaukee, WI............................................... 123,185 Leased
Mississauga, Ontario........................................ 53,487 Leased
Mt. Holly, NJ............................................... 126,637 Leased
Norcross, GA(4)............................................. 169,900 Owned
Norman, OK.................................................. 11,093 Leased
Norman, OK.................................................. 52,000 Owned
Novi, MI(4)................................................. 72,830 Leased
Oakwood, OH................................................. 40,540 Owned
Obetz, OH................................................... 174,000 Leased
Omaha, NE(4)(6)............................................. 105,000 Leased
Ontario, CA................................................. 201,454 Leased
Orlando, FL................................................. 269,000 Leased
Orlando, FL................................................. 143,200 Owned
Oxford, MA.................................................. 40,000 Leased
Phoenix, AZ................................................. 92,425 Leased
Plymouth, MN................................................ 104,200 Leased
Portland, OR................................................ 81,815 Leased
Portland, OR................................................ 75,000 Leased
Romulus, MI(4).............................................. 34,897 Owned
</TABLE>
38
<PAGE> 41
<TABLE>
<CAPTION>
APPROXIMATE
LOCATION SQUARE FEET LEASED/OWNED
-------- ----------- ------------
<S> <C> <C>
Stafford, VA................................................ 30,000 Leased
Stockton, CA................................................ 105,000 Leased
Virginia Beach, VA.......................................... 23,045 Owned
Waukesha, WI(5)............................................. 196,000 Leased
Woodridge, IL............................................... 91,021 Leased
</TABLE>
- ------------------------------
(1) Redistribution facilities
(2) Under construction
(3) Restaurant equipment distribution center
(4) Scheduled for closing in 1999
(5) NEHC capital lease
(6) Owned by HWPI
In connection with the PFS and ProSource acquisitions, the Company expects
to reduce the number of current distribution centers to approximately 28,
including four redistribution, one equipment and two international centers. In
order to accomplish this integration and consolidation, the Company will operate
its business in new and larger facilities. The Company believes its existing
distribution centers, together with planned modifications, expansions and new
distribution centers provide sufficient space to support the Company's expected
expansion over the next several years.
39
<PAGE> 42
MANAGEMENT
EXECUTIVE OFFICERS AND DIRECTORS
The following table sets forth certain information as of April 26, 1999,
with respect to each person who is an executive officer, a significant employee,
or director of AmeriServe:
<TABLE>
<CAPTION>
NAME AGE TITLE
- ---- --- -----
<S> <C> <C>
John V. Holten......................... 42 Director, Chairman and Chief Executive Officer
John R. Evans.......................... 59 Director and Vice Chairman
Raymond E. Marshall.................... 49 Director, Executive Vice President and Vice Chairman
Thomas C. Highland..................... 57 Director, Executive Vice President and Vice Chairman
Kenneth R. Lane........................ 51 Executive Vice President and Chief Operating Officer
Diana M. Moog.......................... 39 Executive Vice President and Chief Financial Officer
Bruce Graham........................... 36 Acting Chief Information Officer
Gunnar E. Klintberg.................... 50 Director and Assistant Secretary and Member of
Compensation Committee
A. Petter Ostberg...................... 37 Vice President
John D. Gainor......................... 42 President, Purchasing and Logistics
Kurt E. Twining........................ 43 Senior Vice President, Human Resources
Kevin J. Rogan......................... 47 Senior Vice President, General Counsel and Secretary
Stanley J. Szlauderbach................ 50 Vice President, Investor Relations and Chief
Accounting Officer
Ginette Wooldridge..................... 41 Vice President and Controller
Paul A. Garcia de Quevedo.............. 45 Vice President, Treasurer and Assistant Secretary
Nancy M. Bittner....................... 35 Vice President, Planning
Leif F. Onarheim....................... 63 Director and Member of Audit Committee
Peter T. Grauer........................ 52 Director and Member of Compensation Committee
Benoit Jamar........................... 43 Director and Member of Audit Committee
Daniel W. Crippen...................... 47 Director
David R. Parker........................ 55 Director and Vice Chairman
</TABLE>
John V. Holten. Mr. Holten has served as Chairman and Chief Executive
Officer of Holberg since its inception in 1986 and of NEHC since its inception
in 1996. Mr. Holten was Managing Director of DnC Capital Corporation, a merchant
banking firm in New York City, from 1984 to 1986. Mr. Holten has been a member
of the NEHC Board since 1996, and the AmeriServe Board since 1986.
John R. Evans. Mr. Evans became President of Evans in 1971, and was named
Chief Executive Officer of the combined company when Evans merged with NEBCO in
1990. Mr. Evans serves on the Board of Directors of each of M&I Northern Bank,
Aerial Company, Inc., and AFI Inc. Mr. Evans has been an officer of NEHC and a
member of the NEHC Board since 1996, and an officer of AmeriServe and a member
of its Board since 1990.
Raymond E. Marshall. Mr. Marshall has 28 years of foodservice distribution
experience, including 26 years with AmeriServe or its predecessors. Mr. Marshall
served as President and Chief Executive Officer of NEBCO from 1980 to 1989. Mr.
Marshall served as President of AmeriServe from 1990 to 1997. Mr. Marshall
serves on the Board of Directors of Independent Distributors of America ("IDA").
Mr. Marshall has been an officer of NEHC and a member of the NEHC Board since
1996, and a member of the AmeriServe Board since 1986.
Thomas C. Highland. Mr. Highland joined AmeriServe at the time of the
acquisition of ProSource. Most recently he served as President and Chief
Executive Officer of ProSource. Mr. Highland joined ProSource in 1992 following
four years as President of Burger King Distribution Services. Prior to
40
<PAGE> 43
ProSource he spent twenty-five years with Warner Lambert Company, most recently
as Vice President, U.S. Distribution.
Gunnar E. Klintberg. Mr. Klintberg has served as Vice Chairman of Holberg
since its inception in 1986. Mr. Klintberg was a Managing Partner of DnC Capital
Corporation, a merchant banking firm in New York City, from 1983 to 1986. Mr.
Klintberg has been an officer of NEHC and a member of the NEHC Board since 1996,
and an officer of AmeriServe and its Board since 1986.
A. Petter Ostberg. Mr. Ostberg joined Holberg in 1994 and was appointed
Senior Vice President and Chief Financial Officer in 1997. Prior to joining
Holberg, Mr. Ostberg held various finance positions from 1990 to 1994 with New
York Cruise Lines, Inc.
Diana M. Moog. Ms. Moog was named Executive Vice President and Chief
Financial Officer in 1998. Previously, she was Senior Vice President and Chief
Financial Officer. Ms. Moog joined AmeriServe as Senior Vice President and
Treasurer at the time of the PFS Acquisition in 1997. Previously, she had served
as Vice President, Controller of PFS. Ms. Moog had held various positions at
PepsiCo from 1989 to 1997 including Manager, Financial Reporting for PepsiCo and
Assistant Controller, Frito-Lay.
John D. Gainor. Mr. Gainor joined AmeriServe at the time of the
acquisition of ProSource. Most recently, he served as President, Logistics and
Redistribution of ProSource. Prior to joining ProSource in 1992, Mr. Gainor was
Director, Transportation and Planning for Warner Lambert Company.
Kurt E. Twining. Mr. Twining joined AmeriServe in 1997 as Senior Vice
President -- Human Resources in connection with the PFS Acquisition. Mr. Twining
joined PFS in 1986 as Manager, Employee Relations. He then held positions of
Manager, Staffing and Development; Director, Employee Relations; Senior
Director, Employee Relations; Senior Director, Organization and Management
Development; and Vice President, Field Human Resources and Safety.
Kenneth R. Lane. Mr. Lane was named Executive Vice President and Chief
Operating Officer in 1998. Previously, he was Senior Vice President and Acting
Chief Operating Officer. He joined AmeriServe in 1997 as a Senior Vice President
in connection with the PFS Acquisition. The prior 24 years were spent with
PepsiCo in various positions, most recently as PFS Vice President Operations,
North, overseeing the Northern United States as well as international operations
in Mexico, Canada and Puerto Rico.
Bruce Graham. Mr. Graham was named Acting Chief Information Officer in
1998. Mr. Graham is an employee of The Feld Group, an information technology
consulting firm retained by the Company in 1998. In a previous assignment with
The Feld Group, Mr. Graham was Chief Information Officer of Oshawa, a food
retailer and distributor in Canada.
Kevin J. Rogan. Mr. Rogan was named Senior Vice President, General Counsel
and Secretary in 1999. Previously, he was Vice President, General Counsel and
Secretary. Before joining AmeriServe in 1997 he was Vice President, Legal at
McKesson Corporation. Prior to McKesson, Mr. Rogan served as legal counsel to
FoxMeyer Health Corporation, Grand Metropolitan, PLC and PepsiCo, Inc.
Stanley J. Szlauderbach. Mr. Szlauderbach was named Vice President,
Investor Relations and Chief Accounting Officer in 1998. Previously, he was Vice
President and Controller. Before joining AmeriServe, Mr. Szlauderbach spent 14
years at PepsiCo where his experience included eight years as Director,
Financial Reporting for PepsiCo and two years as Assistant Controller at Pizza
Hut.
Paul Garcia de Quevedo. Mr. Garcia joined AmeriServe at the time of the
acquisition of ProSource. Most recently he served as Vice President, Treasurer
and Secretary for ProSource. Mr. Garcia joined ProSource in 1992 and served as
Vice President, Finance and Controller during his tenure. Prior to ProSource,
Mr. Garcia was with Burger King serving in various financial capacities
including Vice President, Finance for Burger King Distribution Services.
Ginette Wooldridge. Ms. Wooldridge joined AmeriServe as Vice President and
Controller in 1998. Most recently, she served as Director of Accounting for
Frito-Lay. Prior to that, Ms. Wooldridge was Director of Corporate Audit for
PepsiCo, a position she assumed in 1992.
41
<PAGE> 44
Nancy Bittner. Ms. Bittner joined AmeriServe as Vice President, Planning
in 1998. Prior to joining AmeriServe, she spent five years with Frito-Lay, most
recently as Director of Finance.
Daniel W. Crippen. Mr. Crippen has spent the last 21 years in the
foodservice distribution business beginning with The Harry H. Post Company. He
is Chairman of the Board of Directors of IDA. Mr. Crippen has been a member of
the NEHC and AmeriServe Boards since 1997.
Leif F. Onarheim. In 1996, Mr. Onarheim was elected chairman of NHO,
Norway's largest association of business and industry. From 1992 to 1997, Mr.
Onarheim served as President of Norway's largest business school and was Vice
Chairman of the Board of the Norwegian School of Management from 1980 to 1992.
Mr. Onarheim served as CEO of Nora Industries. When Nora merged with Orkla
Borregaard to form the Orkla Group in 1991, Onarheim briefly served as the new
group's Chairman. The Orkla Group is one of Scandinavia's largest branded goods
company with production facilities in the US, Germany, Poland and England. He
serves as Chairman of the Board of Directors of H. Aschehoug & Co. publishers,
Norwegian Fair, Netcom ASA and Narvesen ASA, and is a board member of Wilhelm
Wihelmsen Ltd. (shipping). He has been a director of NEHC since 1996, a director
of AmeriServe since 1986, and a director of Holberg since 1997. Mr. Onarheim has
been a member of the Audit Committee of the NEHC and AmeriServe Boards since
1998.
Peter T. Grauer. Mr. Grauer has been a Managing Director of Donaldson,
Lufkin & Jenrette Merchant Banking, Inc. since 1992. Mr. Grauer serves on the
Board of Directors of each of Doane Products Co. and Total Renal Care, Inc. Mr.
Grauer has been a member of the NEHC and AmeriServe Boards since 1996.
Benoit Jamar. Mr. Jamar is a Managing Director in the Mergers &
Acquisitions group at Donaldson, Lufkin & Jenrette Securities Corporation
("DLJSC"). He joined DLJSC in 1989. Mr. Jamar has been a member of the NEHC and
AmeriServe Boards since 1997. Mr. Jamar has been a member of the Audit Committee
of the NEHC and AmeriServe Boards since 1998.
David R. Parker. Mr. Parker joined AmeriServe at the time of the
acquisition of ProSource. Most recently he served as Chairman of ProSource. Mr.
Parker joined ProSource in 1992. Prior to ProSource, Mr. Parker served as Senior
Executive Vice President of Ryder Systems, Inc. and President of the Vehicle
Leasing and Service Division.
The directors of AmeriServe are elected annually and each serves until his
successor has been elected and qualified, or until his earlier death,
resignation or removal. The officers of AmeriServe are elected by the Board of
Directors, and each serves until his or her successor is elected and qualified,
or until his or her death, resignation or removal.
EXECUTIVE COMPENSATION
The following table sets forth the information for the three most recently
completed fiscal years with regard to compensation for services rendered in all
capacities to the Company by the Chief Executive Officer and the other four most
highly compensated executive officers of the Company (collectively, the "Named
Executive Officers"). Information set forth in the table reflects compensation
earned by such individuals for services with the Company or its respective
subsidiaries.
42
<PAGE> 45
SUMMARY COMPENSATION TABLE
<TABLE>
<CAPTION>
ANNUAL COMPENSATION LONG-TERM COMPENSATION OTHER
-------------------- ---------------------- ANNUAL
FISCAL SALARY BONUS SECURITIES UNDERLYING COMPENSATION
NAME AND PRINCIPAL POSITION YEAR ($)(1) ($) OPTIONS(#)(11) ($)
--------------------------- ------ -------- -------- ---------------------- ------------
<S> <C> <C> <C> <C> <C>
John V. Holten............... 1998 -- -- -- --
Chairman and Chief 1997 -- -- -- --
Executive Officer 1996 -- -- -- --
Raymond E. Marshall.......... 1998 323,977 500,000 -- 265,646(5)
Executive Vice President 1997 301,375 500,000(2) -- 202,621(3)
Vice Chairman 1996 273,793 265,000(4) -- --
Kenneth R. Lane.............. 1998 66,890 266,840 45,660 --
Executive Vice President 1997 97,942(6) 196,840 -- --
Chief Operating Officer 1996 --(7) -- -- --
Diana M. Moog................ 1998 268,942 265,370 45,660 --
Executive Vice President 1997 102,066(6) 195,370 -- --
Chief Financial Officer 1996 --(7) -- -- --
Thomas C. Highland........... 1998 287,133(8) 225,00 -- 87,305(10)
Executive Vice President 1997 --(9) -- -- --
And Vice Chairman 1996 --(9) -- -- --
</TABLE>
- ------------------------------
(1) The amounts shown in this column include FLEX credits, car allowance and
amounts contributed by the Company to its 401(k) plan under a contribution
matching program.
(2) This amount includes discretionary cash bonuses paid by AmeriServe for
services provided during 1997 in connection with the PFS Acquisition.
(3) This amount was paid to Mr. Marshall to reimburse relocation expenses and
premiums paid by the Company on behalf of Mr. Marshall for a whole life
insurance policy and annuity to which the Mr. Marshall is entitled to the
cash surrender value. This program was discontinued in 1998.
(4) This amount includes discretionary cash bonuses paid by Holberg for
services provided during 1995 in connection with the acquisition of
AmeriServ.
(5) This amount reflects forgiveness of debt by the Company for relocation
assistance and premiums on a whole life insurance policy.
(6) This amount reflects employment with the Company from July through December
1997. Mr. Lane and Ms. Moog were employed by PepsiCo, Inc. prior to July of
1997.
(7) Mr. Lane and Ms. Moog were employed by PepsiCo, Inc.
(8) This amount reflects employment with the Company from June through December
1998. Mr. Highland was employed by ProSource, Inc. prior to June of 1998.
(9) Mr. Highland was employed by ProSource, Inc. in 1997 and 1996.
(10) This amount represents perquisites paid by the Company.
(11) This represents options to purchase Class A Common Stock, par value $0.01
per share, of NEHC.
The Company pays an annual management fee to Holberg for management
services. The amount of this fee is not set or allocated with respect to any
particular employee's compensation from Holberg.
43
<PAGE> 46
MANAGEMENT STOCK OPTION PLAN
In 1998 NEHC adopted its Management Stock Option Plan (the "Stock Option
Plan"). Employees and independent contractor consultants of NEHC and its
subsidiaries and affiliates as designated from time to time by NEHC's Board of
Directors, including the Company, may be granted stock options to purchase
shares of NEHC Class A Common Stock ("Options") under the Stock Option Plan. The
aggregate number of shares of NEHC Class A Common Stock that may be issued,
transferred or exercised or exercised pursuant under the Stock Option Plan is
1,000,000 shares (subject to certain adjustments). The Stock Option Plan is
administered by NEHC's Board.
The NEHC Board has the ability to determine, among other things, which
individuals will be granted Options pursuant to the Stock Option Plan, the
number of shares of NEHC Class A Common Stock that will be subject to each
Option grant and the other terms and provisions of each Option. Only
non-qualified stock options may be granted under the Stock Option Plan. The
purchase price for Options will be the fair market value of the NEHC Class A
Common Stock on the date of grant unless the NEHC Board provides otherwise at
the time of grant.
The vesting period of each Option is determined by the NEHC Board at the
time of grant; provided that, unless the NEHC Board determines otherwise at the
time of grant, each then outstanding Option shall become vested as to one-half
of its then unvested shares upon the completion of an Initial Public Offering.
An Initial Public Offering is defined as sale of NEHC common stock pursuant to a
registration under the Securities Act where at least 25% of the outstanding
common stock of NEHC becomes publicly traded or NEHC common stock with a market
value of at least $100 million becomes publicly traded or any other sale of NEHC
common stock the which NEHC Board determines qualifies as an Initial Public
Offering.
Each Option terminates the earlier of the option holder's termination of
employment for cause, 90 days after the option holder's termination of
employment for other than cause or ten years after the original grant of the
Option. NEHC retains the right to purchase shares originally acquired as a
result of Option exercise at the then determined fair market value thereof at
any time after the option holder's termination of employment and before the
earlier of the first anniversary of such termination or the date of an Initial
Public Offering. Such shares may also be purchased by the NEHC at any time
within 30 days after a sale of NEHC at the price per share established by such
sale.
44
<PAGE> 47
The table below sets forth information concerning grants of stock options
for shares of Class A Common Stock, par value $0.01 per share, of NEHC made to
each of the named Executive Officers during 1998. No grants of stock options
occurred prior to 1998.
OPTION GRANTS IN 1998
<TABLE>
<CAPTION>
POTENTIAL REALIZABLE
VALUE AT ASSUMED
ANNUAL RATES OF
STOCK PRICE
APPRECIATION FOR
INDIVIDUAL GRANTS OPTION TERM
- ---------------------------------------------------------------------------- ----------------------
NUMBER OF % OF TOTAL
SECURITIES OPTIONS
UNDERLYING GRANTED TO
OPTIONS EMPLOYEES EXERCISE
GRANTED IN FISCAL PRICE EXPIRATION
NAME (#) YEAR ($/SH) DATE %5($) 10%($)
---- ---------- ---------- -------- ---------- -------- ----------
<S> <C> <C> <C> <C> <C> <C>
John V. Holten.......... -- -- -- -- -- --
Raymond E. Marshall..... -- -- -- -- -- --
Kenneth R. Lane......... 45,660(1) 10.4% $32.85 5/20/08 $943,299 $2,390,504
Diana M. Moog........... 45,660(2) 10.4% $32.85 5/20/08 $943,299 $2,390,504
Thomas C. Highland...... -- -- -- -- -- --
</TABLE>
- ------------------------------
(1) These options may be surrendered at Mr. Lane's option at any time for an
amount equal to $300,000. If Mr. Lane exercises his right to receive cash in
lieu of his options within 30 days of an Initial Public Offering, he will
receive interest on the $300,000 at the rate of 10% per annum from March 1,
1999.
(2) These options may be surrendered at Ms. Moog's option at any time for an
amount equal to $450,000. If Ms. Moog exercises her right to receive cash in
lieu of her options within 30 days of an Initial Public Offering, she will
receive interest on the $450,000 at the rate of 10% per annum from March 1,
1999.
The table below sets forth information concerning each exercise of options
for NEHC Class A Common Stock during 1998 by the Named Executive Officers, the
number of exercisable and unexercisable options for NEHC Class A Common Stock
held by them and the fiscal year-end value of such exercisable and unexercisable
options.
AGGREGATED OPTION EXERCISES AND FISCAL YEAR-END OPTION VALUE
<TABLE>
<CAPTION>
NUMBER OF VALUE OF
SECURITIES UNEXERCISED
UNDERLYING IN-THE-MONEY
UNEXERCISED OPTIONS
OPTIONS AT AT FISCAL
FISCAL YEARS- YEAR-
END(#) END($)
SHARES ------------- -------------
ACQUIRED VALUE EXERCISABLE/ EXERCISABLE/
NAME ON EXERCISE(#) REALIZED UNEXERCISABLE UNEXERCISABLE
---- -------------- -------- ------------- -------------
<S> <C> <C> <C> <C>
John V. Holten........................... -- -- -- --
Raymond E. Marshall...................... -- -- -- --
Kenneth R. Lane.......................... -- -- 0/45,660 --
Diana M. Moog............................ -- -- 0/45,660 --
Thomas C. Highland....................... -- -- -- --
</TABLE>
- ------------------------------
(1) Underlying shares of NEHC Class A Common Stock are not publicly traded and
are subject to repurchase upon termination of employment with the Company
and in other circumstances; therefore, options have not been categorized as
"in-the-money." There has been no determination of fair market value of the
NEHC Class A Common Stock since the valuation made in connection with the
original grant of these options.
45
<PAGE> 48
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
In 1998 the Company established its Supplemental Executive Retirement Plan
(the "SERP"). Officers and senior management employees of the Company who are
selected by the SERP administrator are participants in the SERP until
termination of employment or termination of their participation by such
administrator. Participants currently include the Named Executive Officers.
Under the SERP, each participant is allocated at December 31 of each year
while employed by the Company, five percent (or more as determined by the SERP
administrator) of such participant's salary and regular annual performance
bonus. In addition, each participant is allocated an investment credit equal to
the participant's SERP account balance multiplied by the announced base rate of
Bank of America, N.A., accrued and compounded semi-annually during the plan
year.
A participant is 100% vested in the participant's SERP benefit after five
years of employment. A vested participant (or such participant's beneficiaries)
receives a lump sum payment of the applicable SERP amount upon retirement,
termination (other than for cause), disability (as defined in the SERP) or
death. No SERP benefit is paid to a participant who is terminated for cause or
terminates employment for any reason (other than disability) prior to the five
year vesting period.
DIRECTOR COMPENSATION
Leif F. Onarheim is paid $20,000 per year to serve as a director of the
Company and is a member of the Audit Committee of AmeriServe and NEHC. Mr.
Crippen has a consulting and non-competition agreement with the Company for
which he is paid $150,000 per year. This agreement expires on July 15, 2000. Mr.
Parker has a consulting and non-competition agreement with the Company for which
he is paid $576,000 per year. This agreement expires on July 1, 2000.
COMPENSATION COMMITTEE
The members of the Compensation Committee are Gunnar E. Klintberg and Peter
T. Grauer.
EMPLOYMENT CONTRACTS AND TERMINATION OF EMPLOYMENT AND CHANGE-IN-CONTROL
ARRANGEMENTS
Mr. Marshall's current employment agreement with the Company provides for a
two year term, scheduled to lapse on January 1, 2001, with default annual
renewals, and an annual base salary of $350,000, subject to an annual merit
increase review, plus an annual bonus to be determined by the Compensation
Committee of the Board of Directors, plus participation in any employee benefit
plans sponsored by the Company. Mr. Marshall agrees not to disclose confidential
information for so long as such information remains competitively sensitive.
During the term of the employment agreement and for one year after its
termination, Mr. Marshall agrees not to render services to, or have any
ownership interest in, any business which is competitive with the Company. Mr.
Marshall's employment agreement does not contain any change of control
provisions.
Ms. Moog's current employment agreement with the Company provides for a
three year term, scheduled to lapse on July 11, 2000, with a default two year
renewal, and an annual base salary of $300,000, subject to an annual merit
increase review, plus an annual bonus to be determined by the Compensation
Committee of the Board of Directors, plus participation in any employee benefit
plans sponsored by the Company. Ms. Moog agrees not to disclose confidential
information for so long as such information remains competitively sensitive.
During the term of the employment agreement and for one year after its
termination, Ms. Moog agrees not to render services to, or have any ownership
interest in, any business which is competitive with the Company. Ms. Moog's
employment agreement does not contain any change of control provisions.
Mr. Lane's current employment agreement with the Company provides for a
three year term, scheduled to lapse on July 11, 2000, with a default two year
renewal, and an annual base salary of $300,000, subject to an annual merit
increase review, plus an annual bonus to be determined by the Compensation
Committee of the Board of Directors, plus participation in any employee benefit
plans
46
<PAGE> 49
sponsored by the Company. Mr. Lane agrees not to disclose confidential
information for so long as such information remains competitively sensitive.
During the term of the employment agreement and for one year after its
termination, Mr. Lane agrees not to render services to, or have any ownership
interest in, any business which is competitive with the Company. Mr. Lane's
employment agreement does not contain any change of control provisions.
Mr. Highland's current employment agreement with the Company provides for a
three year term, scheduled to lapse on July 1, 2001, with a default annual
renewal, and an annual base salary of $475,000, subject to an annual merit
increase review, plus an annual bonus to be determined by the Compensation
Committee of the Board of Directors, plus participation in any employee benefit
plans sponsored by the Company. Mr. Highland agrees not to disclose confidential
information for so long as such information remains competitively sensitive.
During the term of the employment agreement and for one year after its
termination, Mr. Highland agrees not to render services to, or have any
ownership interest in, any business which is competitive with the Company. Mr.
Highland's employment agreement does not contain any change of control
provisions.
47
<PAGE> 50
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL HOLDERS AND MANAGEMENT
All of the Company's common stock is owned by NEHC. The following table
sets forth certain information as of March 24, 1999, regarding the beneficial
ownership of the common stock of NEHC by (i) each person known to NEHC to own
beneficially more than 5% of any class of the common stock of NEHC, (ii) each
director of NEHC, (iii) each Named Executive Officer of NEHC and AmeriServe and
(iv) all executive officers and directors of NEHC and AmeriServe as a group. All
information with respect to beneficial ownership has been furnished to NEHC by
the respective stockholders of NEHC. Except as otherwise indicated in the
footnotes, each beneficial owner has the sole power to vote and to dispose of
all shares held by such holder.
<TABLE>
<CAPTION>
AMOUNT AND NATURE PERCENT OF SHARES
NAME AND ADDRESS OF BENEFICIAL OWNERSHIP OUTSTANDING
---------------- ----------------------- -----------------
<S> <C> <C>
NED............................ 8,241,000 shares of Class B Common Stock 100%(+)
Orkla ASA ("Orkla")............ (1)
DLJ Merchant Banking Partners,
L.P. and certain of its Warrants to purchase 3,910,000 shares of
affiliates ("DLJMB")......... Class B Common Stock 30%(++)
Warrants to purchase 753,300 shares of
Holberg........................ Class B Common Stock 6%(++)
John V. Holten................. (2)
Daniel W. Crippen.............. (3)
Peter T. Grauer................ (4)
Benoit Jamar................... (4)
Gunnar E. Klintberg............ (5)
Raymond E. Marshall............ (6)
Leif F. Onarheim............... (7)
</TABLE>
- ------------------------------
(+) Computed with respect to the currently outstanding shares of Class B Common
Stock of NEHC (the "Class B Common Stock") without taking into account any
options or convertible interests of NEHC.
(++) Computed with respect to the currently outstanding shares of Class B Common
Stock of NEHC and the warrants held by DLJMB and Holberg, but without
taking into account any other options or convertible interests of NEHC. On
January 6, 1998, Holberg consummated a repurchase from DLJMB and affiliates
of (i) 49% of the Junior Preferred Stock acquired by DLJMB and affiliates
in connection with the PFS Acquisition (see "Certain Relationships and
Related Party Transactions"), and (ii) warrants conferring the right to
acquire 753,300 shares of the Class B Common Stock.
(1) Orkla owns approximately 7% of the outstanding common stock of NED, and
has an additional interest in the common stock of NED of approximately 8%
through certain warrants to purchase such common stock. In addition, Orkla
owns approximately 34% of the outstanding common stock of Holberg (which
itself owns the balance of the common stock of NED not owned directly by
Orkla. The warrants described in this note have been computed based upon
the outstanding common shares of NED, without taking into account any
options or convertible interests of NED. Orkla also has certain
contractual rights as to NED and NEHC pursuant to an Amended and Restated
Investors Agreement, dated as of July 11, 1997, among DLJMB, NEHC, NED,
Holberg, Holberg Incorporated ("Incorporated") and Orkla.
(2) Mr. Holten owns all of the outstanding common stock of Incorporated, the
corporate parent of Holberg, which entity owns approximately 66% of the
outstanding common stock of Holberg. As noted above, Holberg owns
approximately 93% of the outstanding NED common stock and has an
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<PAGE> 51
additional interest through certain preferred stock convertible into common
stock. The convertible interests described in this note have been computed based
upon the outstanding common shares of NED, without taking into account any
options or convertible interests of NED.
(3) Mr. Crippen owns shares of a series of convertible preferred stock of NEHC
that, if converted, would result in his ownership of approximately 1.6% of
the outstanding common stock of NEHC, taking into account the actually
outstanding shares and the warrants held by DLJMB.
(4) Messrs. Grauer and Jamar are Managing Directors of DLJSC, and may be
considered to have beneficial ownership of the interests of DLJMB in the
Company and NEHC. Messrs. Grauer and Jamar disclaim such beneficial
ownership.
(5) Mr. Klintberg is an officer and director of NED and certain of its
corporate parents, but disclaims beneficial ownership of any of the shares
owned by NED.
(6) Mr. Marshall has an interest of 5% in NED through certain options that
have been granted to him by NED. Such interest has been computed based
upon the outstanding common shares of NED, without taking into account any
options or convertible interests of NED.
(7) Mr. Onarheim has an interest of less than 1% in NED through certain
options that have been granted to him by NED. Such interest has been
computed based upon the outstanding common shares of NED, without taking
into account any options or convertible interests of NED. Mr. Onarheim has
also had a long affiliation with Orkla and acts as Orkla's representative
on the Board of Directors of the Company and NEHC, but disclaims
beneficial ownership of any interests held by Orkla.
CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
DLJMB, an affiliate of DLJSC, and certain of its affiliates beneficially
own approximately 30% (subject to adjustment as defined in agreement) of the
common stock of NEHC through warrants. Mr. Grauer, a principal of DLJSC, is a
member of the Board of Directors of NEHC and the Company; Mr. Jamar, a principal
of DLJSC, is a member of the Board of Directors of NEHC and the Company. Holberg
indirectly owns a majority of the issued and outstanding capital stock of NEHC.
See "Security Ownership of Certain Beneficial Owners and Management." Subject to
the rights of holders of preferred stock, Holberg and affiliates of DLJSC
collectively have sufficient voting power to elect the entire Board of Directors
of each of NEHC, and through NEHC, the Company.
In connection with the PFS Acquisition, DLJSC received a merger advisory
fee of $4.0 million in cash from the Company upon consummation of the PFS
Acquisition and related financings. An affiliate of DLJ also received customary
fees in connection with their commitment to finance a portion of the purchase
price for PFS, in the event that the Company could not arrange alternative
financing prior to the closing.
In connection with the Credit Facility, DLJ Capital Funding, Inc., an
affiliate of DLJSC, acted as documentation agent (see Note 6 to the historical
financial statements of the Company included elsewhere herein) for which it
received certain customary fees and expenses.
DLJSC has acted as an initial purchaser in connection with each of the
offerings of the Senior Discount Notes, the Senior Subordinated Notes, the
Senior Notes and the Preferred Stock for which it received certain customary
underwriting fees and discounts.
In connection with the ProSource Acquisition, DLJSC received a merger
advisory fee of $3.25 million in cash from the Company upon consummation of the
ProSource Acquisition.
Holberg has received customary investment banking and advisory fees from
the Company and its affiliates in connection with certain prior transactions,
including a $4.0 million merger advisory fee in connection with the PFS
Acquisition. Holberg also received fees of $1.0 million in connection with the
offering of the Senior Notes.
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<PAGE> 52
Holberg also receives an annual management fee from the Company of $4.0
million, commencing in 1997. In addition, in connection with the ProSource
acquisition, Holberg received a merger advisory fee of $3.25 million from the
Company upon consummation of the ProSource acquisition.
A portion of the net proceeds of the Preferred Stock offering was used to
finance the repurchase cost of the Senior Preferred Stock and the Junior
Preferred Stock held by Holberg and certain affiliates of DLJSC and the Junior
Non-Convertible Preferred Stock held by NED.
With the January 1996 acquisition of AmeriServ, the Company acquired a
minority interest in Post Holdings Company ("Post Holdings"), a 93.6% owner of
Post. On November 25, 1996 NEHC acquired: (i) the Company's ownership interest
in Post Holdings; and (ii) Daniel W. Crippen's 50% ownership of Post Holdings.
In connection with this transaction, Mr. Crippen, the Company's and NEHC's
Executive Vice President at that date, received $4.4 million ($2.0 million cash
and $2.4 million in NEHC 8% senior convertible preferred stock) in exchange for
his 50% equity interest in Post Holdings.
In connection with the PFS Acquisition: (i) the remaining 6.4% of the
capital stock outstanding of Post was acquired from the minority stockholder;
(ii) a dividend of $4.7 million was declared to eliminate the intercompany
balance between Post and NEHC; (iii) all of the capital stock of Post was
transferred to AmeriServ, then a wholly-owned subsidiary of the Company; (iv)
Post's $10.6 million of outstanding indebtedness was refinanced; and (v)
AmeriServ's investment in NEHC preferred stock of $2.5 million was cancelled.
In connection with the PFS Acquisition, NEHC contributed $130.0 million of
cash to the Company. This contribution was financed in part through NEHC's sale
of the Senior Discount Notes, Senior Preferred Stock and the Junior Preferred
Stock, as well as warrants to purchase NEHC Class B Common Stock, to affiliates
of DLJSC. On January 6, 1998, Holberg purchased from DLJ Merchant Banking
Partners II, L.P. and certain of its affiliates ("DLJMBII") warrants to purchase
753,300 shares of Class B Common Stock, which had originally been issued to
DLJMBII in connection with the PFS Acquisition in July 1997.
In addition to the equity contribution to AmeriServe, the proceeds from the
offering of the Senior Discount Notes were used to redeem the 12 1/2% Senior
Secured Notes of NEHC (the "Old NEHC Notes"), with an initial purchase amount of
$22.0 million beneficially owned by DLJMB and Old NEHC Notes, with an initial
principal amount of $8.0 million held by Orkla.
In connection with the PFS Acquisition, NEHC contributed to the Company an
aggregate principal amount of $45.0 million of outstanding non-convertible
preferred stock of the Company.
Prior to the PFS Acquisition, HWPI was owned 55% by Holberg and 45% by the
Company. In connection with the PFS Acquisition, NEHC purchased for $1.5 million
Holberg's 55% interest in HWPI. HWPI's sole operations consist of owning two
distribution centers, located in Omaha, Nebraska and Waukesha, Wisconsin,
occupied by the Company.
The Company leases a warehouse and office facility in Waukesha, Wisconsin
from a partnership owned by certain former shareholders of an acquired company,
including Mr. John Evans, for approximately $810,000 per year through May 31,
2008.
The Company and Holberg also periodically engage in bi-lateral
interest-bearing loans and advances. (See Note 13 to the historical financial
statements of the Company included elsewhere herein.)
Mr. Crippen has a consulting and non-competition agreement with the Company
for which he is paid $150,000 per year. This agreement expires on July 15, 2000.
Mr. Parker has a consulting and non-competition agreement with the Company for
which he is paid $576,000 per year. This agreement expires on July 1, 2000.
See also "Plan of Distribution."
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<PAGE> 53
DESCRIPTION OF INDEBTEDNESS
The following sets forth information concerning the Company's indebtedness,
other than the Notes, outstanding immediately following the consummation of the
Refinancing.
ACCOUNTS RECEIVABLE PROGRAM
In connection with the PFS Acquisition, the Company entered into the
Accounts Receivable Program (the "Accounts Receivable Program"). The Accounts
Receivable Program is structured as an off-balance sheet financing for
accounting purposes.
Under the Accounts Receivable Program, the Company transfers to AmeriServe
Funding Corporation ("AmeriServe Funding"), a wholly-owned, special purpose
bankruptcy-remote subsidiary, on a daily basis, substantially all of the trade
receivables (the "Receivables") generated by the Company and/or one or more of
its subsidiaries. AmeriServe Funding then sells the receivables to a master
trust, AmeriServe Master Trust (the "Trust"), which issued a series of
certificates representing an undivided interest in the assets of the Trust. The
certificates were purchased by any of (i) Bank of America, (ii) a commercial
paper conduit administered by Bank of America National Trust and Savings
Association ("Bank of America NT&SA"), (iii) a group of banks and/or (iv)
individual private investors (all of the foregoing, collectively, referred to as
the "Purchasers").
The Accounts Receivable Program initially provided up to $225 million of
proceeds. During 1998, the Company received additional proceeds of $220 million
primarily as a result of the addition of ProSource trade accounts receivable (in
May) and the completion of a restructuring of the Program and implementation of
additional reporting requirements (in July). Transactions completed in December
1998 were designed primarily to refinance a substantial portion of the
bank-funded Trust certificates that supported the proceeds previously received
by the Company. The transactions, which also resulted in additional financing
capacity under the Program, included a $280 million Rule 144A private placement
of a three-year asset backed security and the establishment of a bank-funded,
three-year variable funding certificate of up to $100 million.
After these transactions, the Program provides up to $485 million in
capacity, depending on accounts receivable levels. Because of the linkage to
accounts receivable levels, the availability at December 26, 1998 was $445
million, all of which the Company had received in proceeds as of that date. The
proceeds reflected $653 million of accounts receivable sold less Funding's
undivided interest in the assets of the Trust of $208 million.
All of the Receivables are transferred on a daily basis to AmeriServe
Funding. The exchange price for the Receivables conveyed to AmeriServe Funding
is a dollar amount equal to the aggregate unpaid balance of the Receivables less
a discount specified in the transaction documents. AmeriServe Funding may also
pay the exchange price for such Receivables by increasing the principal amount
of notes payable by it to the Company and subsidiaries of the Company rather
than paying cash for such Receivables. Certain of the Receivables have been
transferred by the Company to AmeriServe Funding as a contribution of capital.
AmeriServe Funding (and the Trust, in turn) has obtained first priority,
perfected ownership interests in the Receivables, and any related security and
proceeds thereof. The Company serves as the initial master servicer of the
Accounts Receivable Program.
The Purchasers' yield on their Invested Amount will be based on either
LIBOR or a Base Rate plus a margin. The "Invested Amount" generally will be
calculated as the sum of the purchase prices paid by the Purchasers from time to
time for undivided interests in the Receivables in the Trust, reduced by the
aggregate amount of distributions made to the Purchasers on account of
principal. As of December 26, 1998, the Banks' yield was 6.40%.
A non-usage fee of 3/8 of 1% per annum on a daily average of (i) the
aggregate commitments of the Purchasers under the Accounts Receivable Program
minus (ii) the Invested Amount is payable by AmeriServe Funding monthly in
arrears.
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<PAGE> 54
Prior to termination of the Banks' commitment under the Accounts Receivable
Program, AmeriServe Funding may cause the Trust to sell undivided interests in
the Receivables to the Banks from time to time so long as certain conditions are
satisfied, including, without limitation, that after giving effect to such sale,
the Invested Amount (less amounts held in certain Trust accounts) would not
exceed the Base Amount. The "Base Amount" generally will be equal to the result
of (a)(i) the Net Eligible Receivables, times (ii) 100% minus the Applicable
Reserve Ratio, minus (b) the Carrying Cost Receivables Reserve. The "Net
Eligible Receivables" generally will be calculated as the aggregate unpaid
balance of Receivables held by the Trust that satisfy certain eligibility
criteria, less unapplied cash held by the Trust, less funds not yet made
available by lockbox banks holding collections on Receivables, less the
aggregate amount of excess concentrations of Receivables as specified in the
transaction documents. The "Applicable Reserve Ratio" will be calculated
consistent with the trade receivable rating methodology of Standard & Poor's
and/or Duff & Phelps, will incorporate specified loss reserve ratios and
dilution reserve ratios, and will be subject to a floor of 15%. The "Carrying
Cost Receivables Reserve" generally will be calculated to reflect interest
payable to the Banks, the servicing fee payable from the Assets of the Trust,
certain accrued and unpaid expenses and certain additional amounts based on days
sales outstanding.
The Accounts Receivable Program contains customary conditions, including,
without limitation, delivery of true sale and non-consolidation opinions. In
addition, Bank of America NT&SA has been satisfied that structural enhancements
are in place so that the Accounts Receivable Program satisfies, at a minimum,
the "BBB" rating criteria of Standard & Poor's and/or Duff & Phelps. The
Accounts Receivable Program also contains customary termination events,
including, without limitation, bankruptcy or insolvency of the Company or
AmeriServe Funding, cross-acceleration to other material indebtedness of the
Company and Receivables performance triggers.
CREDIT FACILITY
In May 1998, the Company entered into an amended credit agreement with a
group of financial institutions that provides for a credit facility, expiring in
2003, of up to $220 million. The amended credit facility replaces the previous
$150 million revolving credit facility. Interest rates on borrowings under the
facility are indexed to certain key variable rates plus an additional spread
based on certain financial ratios. Availability under the facility is based on
levels of the Company's inventories of food and paper products and supplies. A
commitment fee of up to .50% per annum is payable on the unused portion of the
facility. The availability under the credit facility at December 26, 1998 was
$151.2 million, against which borrowings were $4.0 million (at an 8.5% interest
rate) and outstanding letters of credit totaled $35.9 million. Day-to-day cash
flows can result in significant fluctuations in the amount of borrowings under
the facility. In late March 1999, an amendment to the credit facility was
completed that allows the Company up to $30 million in letters of credit before
usage of the facility is impacted, resulting in additional current liquidity in
this amount.
NEHC and all domestic subsidiaries of the Company guarantee indebtedness
under the credit facility (the "Guarantors"). All extensions of credit under the
credit facility to the Company and guaranties of subsidiaries of the Company are
secured by all existing and after acquired personal property (other than
accounts receivable transferred in connection with the Accounts Receivable
Program or any securitization refinancing of the Accounts Receivable Program) of
the Company and its subsidiaries, including all outstanding capital stock of the
Company and of all of its domestic subsidiaries, 65% of outstanding capital
stock of the Company's foreign subsidiaries and any intercompany debt
obligations, and, subject to exceptions to be agreed upon all existing and
after-acquired real property fee and leasehold interests. NEHC's guaranty is
secured by a pledge of all outstanding capital stock of the Company. With
certain exceptions, NEHC, the Company and its subsidiaries are prohibited from
pledging any of their assets other than under the credit facility agreements.
Under the credit facility, a letter of credit fee is assessed according to
a pricing grid contained in the credit facility agreements per annum for standby
letters of credit, which will be shared by all Lenders, and an additional 0.25%
per annum to be retained by the issuing bank for issuing the standby letters of
credit, based upon the amount available for drawing under outstanding standby
letters of credit.
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Indebtedness under the credit facility may be prepaid in whole or in part
without premium or penalty (subject in some cases to related breakage) and the
Lenders' commitments relative thereto reduced or terminated upon such notice and
in such amounts as may be agreed upon.
The credit facility contains customary and appropriate representations and
warranties, including without limitation those relating to due organization and
authorization, no conflicts, financial condition, no material adverse changes,
title to properties, liens, litigation, payment of taxes, no material adverse
agreements, compliance with laws, environmental liabilities and full disclosure.
The credit facility also contains customary and appropriate conditions to
all borrowings under the Revolving Credit Facility including requirements
relating to prior written notice of borrowing, the accuracy of representations
and warranties, and the absence of any default or potential event of default.
The credit facility also contains customary affirmative and negative
covenants (including, where appropriate, certain exceptions and baskets),
including but not limited to furnishing information and limitations on other
indebtedness, liens, investments, guarantees, restricted payments, restructuring
and reserve costs, mergers and acquisitions, sales of assets, capital
expenditures, leases, and affiliate transactions. The credit facility also
contains financial covenants relating to minimum interest coverage and maximum
leverage.
Events of default under the credit facility include those relating to: (a)
non-payment of interest, principal or fees payable under the credit facility;
(b) non-performance of certain covenants; (c) cross default to other material
debt of the Company and its subsidiaries; (d) bankruptcy or insolvency; (e)
judgments in excess of specified amounts; (f) impairment of security interests
in collateral; (g) invalidity of guarantees; (h) materially inaccurate or false
representations or warranties; and (i) change of control.
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<PAGE> 56
DESCRIPTION OF NOTES
SENIOR NOTES
GENERAL
The Senior Notes were issued pursuant to the Senior Note Indenture among
the Company, the direct or indirect domestic Restricted Subsidiaries of the
Company (together, the Subsidiary Guarantors), and the Senior Note Trustee. The
terms of the Senior Notes include those stated in the Senior Note Indenture and
those made part of the Senior Note Indenture by reference to the Trust Indenture
Act of 1939, as amended (the "Trust Indenture Act"). The Senior Notes are
subject to all such terms, and holders of Senior Notes are referred to the
Senior Note Indenture and the Trust Indenture Act for a statement thereof. The
following summary of the material provisions of the Senior Note Indenture does
not purport to be complete and is qualified in its entirety by reference to the
Senior Note Indenture, including the definitions therein of certain terms used
below. Copies of the Senior Note Indenture are available as set forth below
under "-- Additional Information." The definitions of certain terms used in the
following summary are set forth below under "-- Certain Definitions."
The Senior Notes are general unsecured obligations of the Company and rank
pari passu in right of payment with all current and future unsecured senior
Indebtedness of the Company. The Company's obligations under the Senior Notes
are fully and unconditionally guaranteed (the Senior Note Guarantees) on a
senior unsecured basis by, and are joint and several obligations of, the
Subsidiary Guarantors. See "-- Senior Note Guarantees." As of December 26, 1998,
the Senior Notes and the Senior Note Guarantees were effectively subordinated to
approximately $60.7 million of secured obligations of the Company and the
Subsidiary Guarantors. The Senior Note Indenture permits the incurrence of
additional secured Indebtedness in the future.
The operations of the Company are conducted in part through its
Subsidiaries, and the Company may, therefore, be dependent upon the cash flow of
its Subsidiaries to meet its debt obligations, including its obligations under
the Senior Notes. All of the existing domestic Restricted Subsidiaries of the
Company are, and all future domestic Restricted Subsidiaries are expected to be,
Subsidiary Guarantors. As of the date of the Senior Note Indenture, all of the
Company's Subsidiaries, except for the Receivables Subsidiary, are Restricted
Subsidiaries. However, under certain circumstances, the Company will be able to
designate current or future Subsidiaries as Unrestricted Subsidiaries.
Unrestricted Subsidiaries will not be subject to many of the restrictive
covenants set forth in the Senior Note Indenture.
PRINCIPAL, MATURITY AND INTEREST
The Senior Notes are limited in aggregate principal amount to $350.0
million and mature on October 15, 2006. Interest on the Senior Notes accrues at
the rate of 8 7/8% per annum and is payable semi-annually in arrears on April 15
and October 15 of each year, commencing as of April 15, 1998, to holders of
record on the immediately preceding April 1 and October 1. Interest on the
Senior Notes accrues from the most recent date to which interest has been paid
or, if no interest has been paid, from October 15, 1997. Interest is computed on
the basis of a 360-day year comprised of twelve 30-day months. Principal,
premium and Liquidated Damages, if any, and interest on the Senior Notes is
payable at the office or agency of the Company maintained for such purpose
within the City and State of New York or, at the option of the Company, payment
of interest and Liquidated Damages, if any, may be made by check mailed to the
holders of the Senior Notes at their respective addresses set forth in the
register of holders of Senior Notes; provided that all payments of principal,
premium and Liquidated Damages, if any, and interest with respect to Senior
Notes the holders of which have given wire transfer instructions to the Company
are required to be made by wire transfer of immediately available funds to the
accounts specified by the holders thereof. Until otherwise designated by the
Company, the Company's office or agency in New York is the office of the Trustee
maintained for such purpose. The Senior Notes are issued in denominations of
$1,000 and integral multiples thereof.
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<PAGE> 57
SENIOR NOTE GUARANTEES
The Company's payment obligations under the Senior Notes are fully and
unconditionally guaranteed by the Subsidiary Guarantors on a joint and several
basis. The Senior Note Guarantees are general unsecured obligations of the
Subsidiary Guarantors, rank senior in right of payment to all subordinated
Indebtedness of the Subsidiary Guarantors and pari passu in right of payment to
all existing and future senior Indebtedness of the Subsidiary Guarantors, if
any. The obligations of any Subsidiary Guarantor under its Senior Note Guarantee
are limited so as not to constitute a fraudulent conveyance under applicable
law.
The Senior Note Indenture provides that no Subsidiary Guarantor may
consolidate with or merge with or into (whether or not such Subsidiary Guarantor
is the surviving Person), another corporation, Person or entity whether or not
affiliated with such Subsidiary Guarantor unless, subject to the provisions of
the following paragraph, (i) the Person formed by or surviving any such
consolidation or merger (if other than such Subsidiary Guarantor) assumes all
the obligations of such Subsidiary Guarantor pursuant to a supplemental
indenture in form and substance reasonably satisfactory to the Trustee, under
the Senior Notes and the Senior Note Indenture; (ii) immediately after giving
effect to such transaction, no Default or Event of Default exists; (iii) such
Subsidiary Guarantor, or any Person formed by or surviving any such
consolidation or merger, would have Consolidated Net Worth (immediately after
giving effect to such transaction) equal to or greater than the Consolidated Net
Worth of such Subsidiary Guarantor immediately preceding the transaction; and
(iv) the Company would be permitted by virtue of its pro forma Fixed Charge
Coverage Ratio, immediately after giving effect to such transaction, to incur at
least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage
Ratio test set forth in the covenant described below under the caption
"-- Certain Covenants -- Incurrence of Indebtedness and Issuance of Preferred
Stock." The requirements of clauses (iii) and (iv) of this paragraph will not
apply in the case of a consolidation with or merger with or into (a) the Company
or another Subsidiary Guarantor or (b) any other Person if the acquisition of
all of the Equity Interests in such Person would have complied with the
provisions of the covenants described below under the captions "-- Certain
Covenants -- Restricted Payments" and "-- Incurrence of Indebtedness and
Issuance of Preferred Stock."
The Senior Note Indenture provides that (a) in the event of a sale or other
disposition of all of the assets of any Subsidiary Guarantor, by way of merger,
consolidation or otherwise, or a sale or other disposition of all of the capital
stock of any Subsidiary Guarantor, or (b) in the event that the Company
designates a Subsidiary Guarantor to be an Unrestricted Subsidiary, or such
Subsidiary Guarantor ceases to be a Subsidiary of the Company, then such
Subsidiary Guarantor (in the event of a sale or other disposition, by way of
such a merger, consolidation or otherwise, of all of the capital stock of such
Subsidiary Guarantor or any such designation) or the entity acquiring the
property (in the event of a sale or other disposition of all of the assets of
such Subsidiary Guarantor) will be released and relieved of any obligations
under its Senior Note Guarantee; provided that the Net Proceeds of such sale or
other disposition are applied in accordance with the applicable provisions of
the Indenture. See "-- Repurchase at the Option of Holders." In the case of a
sale, assignment, lease, transfer, conveyance or other disposition of all or
substantially all of the assets of a Subsidiary Guarantor, upon the assumption
provided for in clause (ii) of the covenant described under the caption
"-- Certain Covenants -- Merger, Consolidation, or Sale of Assets," such
Subsidiary Guarantor shall be discharged from all further liability and
obligation under the Senior Note Indenture.
OPTIONAL REDEMPTION
The Senior Notes are not redeemable at the Company's option prior to April
15, 2002. Thereafter, the Senior Notes are subject to redemption at any time at
the option of the Company, in whole or in part, upon not less than 30 nor more
than 60 days' notice, at the redemption prices (expressed as percentages of
principal amount) set forth below plus accrued and unpaid interest and
Liquidated Damages thereon, if
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<PAGE> 58
any, to the applicable redemption date, if redeemed during the twelve-month
period beginning on April 15 of the years indicated below:
<TABLE>
<CAPTION>
YEAR PERCENTAGE
- ---- ----------
<S> <C>
2002...................................................... 104.438%
2003...................................................... 102.219%
2004 and thereafter....................................... 100.000%
</TABLE>
Notwithstanding the foregoing, at any time prior to October 15, 2000, the
Company may redeem up to 33% of the original aggregate principal amount of
Senior Notes at a redemption price of 108.875% of the principal amount thereof,
plus accrued and unpaid interest and Liquidated Damages thereon, if any, to the
redemption date, with the net cash proceeds of a Public Equity Offering;
provided that at least 67% of the original aggregate principal amount of Senior
Notes remains outstanding immediately after the occurrence of such redemption;
and provided, further, that such redemption shall occur within 45 days of the
date of the closing of such Public Equity Offering.
SELECTION AND NOTICE
If less than all of the Senior Notes are to be redeemed at any time,
selection of Senior Notes for redemption will be made by the Trustee in
compliance with the requirements of the principal national securities exchange,
if any, on which the Senior Notes are listed, or, if the Senior Notes are not so
listed, on a pro rata basis, by lot or by such method as the Trustee shall deem
fair and appropriate; provided that no Senior Notes of $1,000 or less shall be
redeemed in part. Notices of redemption shall be mailed by first class mail at
least 30 but not more than 60 days before the redemption date to each holder of
Senior Notes to be redeemed at its registered address. Notices of redemption may
not be conditional. If any Senior Note is to be redeemed in part only, the
notice of redemption that relates to such Senior Note shall state the portion of
the principal amount thereof to be redeemed. A new Senior Note in principal
amount equal to the unredeemed portion thereof will be issued in the name of the
holder thereof upon cancellation of the original Senior Note. Senior Notes
called for redemption become due on the date fixed for redemption. On and after
the redemption date, interest ceases to accrue on Senior Notes or portions of
them called for redemption.
MANDATORY REDEMPTION
Except as set forth below under "-- Repurchase at the Option of Holders,"
the Company is not required to make mandatory redemption or sinking fund
payments with respect to the Senior Notes.
REPURCHASE AT THE OPTION OF HOLDERS
CHANGE OF CONTROL
Upon the occurrence of a Change of Control, each holder of Senior Notes has
the right to require the Company to repurchase all or any part (equal to $1,000
or an integral multiple thereof) of such holder's Senior Notes pursuant to the
offer described below (the "Change of Control Offer") at an offer price in cash
equal to 101% of the aggregate principal amount thereof plus accrued and unpaid
interest and Liquidated Damages thereon, if any, to the date of purchase (the
"Change of Control Payment"). Within 30 days following any Change of Control,
the Company will mail a notice to each Holder describing the transaction or
transactions that constitute the Change of Control and offering to repurchase
Senior Notes on the date specified in such notice, which date shall be no
earlier than 30 days and no later than 60 days from the date such notice is
mailed (the "Change of Control Payment Date"), pursuant to the procedures
required by the Indenture and described in such notice. The Company will comply
with the requirements of Rule 14e-1 under the Exchange Act and any other
securities laws and regulations thereunder to the extent such laws and
regulations are applicable in connection with the repurchase of the Senior Notes
as a result of a Change of Control.
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On the Change of Control Payment Date, the Company will, to the extent
lawful, (1) accept for payment all Senior Notes or portions thereof properly
tendered pursuant to the Change of Control Offer, (2) deposit with the Paying
Agent an amount equal to the Change of Control Payment in respect of all Senior
Notes or portions thereof so tendered and (3) deliver or cause to be delivered
to the Trustee the Senior Notes so accepted together with an Officers'
Certificate stating the aggregate principal amount of Senior Notes or portions
thereof being purchased by the Company. The Paying Agent will promptly mail to
each holder of Senior Notes so tendered the Change of Control Payment for such
Senior Notes, and the Trustee will promptly authenticate and mail (or cause to
be transferred by book entry) to each holder a new Senior Note equal in
principal amount to any unpurchased portion of the Senior Notes surrendered, if
any; provided that each such new Senior Note will be in a principal amount of
$1,000 or an integral multiple thereof.
The Change of Control provisions described above are applicable whether or
not any other provisions of the Senior Note Indenture are applicable. Except as
described above with respect to a Change of Control, the Senior Note Indenture
does not contain provisions that permit the holders of the Senior Notes to
require that the Company repurchase or redeem the Senior Notes in the event of a
takeover, recapitalization or similar transaction.
The Company will not be required to make a Change of Control Offer upon a
Change of Control if a third party makes the Change of Control Offer in the
manner, at the times and otherwise in compliance with the requirements set forth
in the Senior Note Indenture applicable to a Change of Control Offer made by the
Company and purchases all Senior Notes validly tendered and not withdrawn under
such Change of Control Offer.
The definition of Change of Control includes a phrase relating to the sale,
lease, transfer, conveyance or other disposition of "all or substantially all"
of the assets of the Company and its Subsidiaries taken as a whole. Although
there is a developing body of case law interpreting the phrase "substantially
all," there is no precise established definition of that phrase under applicable
law. Accordingly, the ability of a holder of Senior Notes to require the Company
to repurchase such Senior Notes as a result of a sale, lease, transfer,
conveyance or other disposition of less than all of the assets of the Company
and its Subsidiaries taken as a whole to another Person or group may be
uncertain.
ASSET SALES
The Indenture provides that the Company will not, and will not permit any
of its Restricted Subsidiaries to, consummate an Asset Sale other than transfers
of Receivables to a Receivables Subsidiary in connection with a Receivables
Transaction unless (i) the Company (or the Restricted Subsidiary, as the case
may be) receives consideration at the time of such Asset Sale at least equal to
the fair market value (evidenced by a resolution of the Board of Directors set
forth in an Officers' Certificate delivered to the Trustee) of the assets or
Equity Interests issued or sold or otherwise disposed of and (ii) at least 80%
of the consideration therefor received by the Company or such Restricted
Subsidiary is in the form of cash; provided that the amount of (x) any
liabilities (as shown on the Company's or such Restricted Subsidiary's most
recent balance sheet) of the Company or any Restricted Subsidiary (other than
contingent liabilities and liabilities that are by their terms subordinated to
the Senior Notes or any guarantee thereof) that are assumed by the transferee of
any such assets pursuant to a customary novation agreement that releases the
Company or such Restricted Subsidiary from further liability and (y) any
securities, notes or other obligations received by the Company or any such
Restricted Subsidiary from such transferee that are converted by the Company or
such Restricted Subsidiary into cash within 180 days (to the extent of the cash
received), shall be deemed to be cash for purposes of this provision.
Within 360 days after the receipt of any Net Proceeds from an Asset Sale,
the Company may apply such Net Proceeds, at its option, (a) to permanently repay
Senior Debt (and to correspondingly reduce commitments with respect thereto in
the case of revolving borrowings), or (b) to the acquisition of a controlling
interest in another business, the making of a capital expenditure or the
acquisition of other long-term assets, in each case, in a Permitted Business.
Pending the final application of any such Net
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Proceeds, the Company may temporarily reduce the revolving Indebtedness under
the Credit Facility or otherwise invest such Net Proceeds in any manner that is
not prohibited by the Indenture. Any Net Proceeds from Asset Sales that are not
applied or invested as provided in the first sentence of this paragraph will be
deemed to constitute "Excess Proceeds." When the aggregate amount of Excess
Proceeds exceeds $15.0 million, the Company will be required to make an offer to
all holders of Senior Notes (an "Asset Sale Offer") to purchase the maximum
principal amount of Senior Notes that may be purchased out of the Excess
Proceeds, at an offer price in cash in an amount equal to 100% of the principal
amount thereof plus accrued and unpaid interest and Liquidated Damages thereon,
if any, to the date of purchase, in accordance with the procedures set forth in
the Senior Note Indenture. To the extent that the aggregate amount of Senior
Notes tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds,
the Company may use any remaining Excess Proceeds for general corporate
purposes. If the aggregate principal amount of Senior Notes surrendered by
holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select
the Senior Notes to be purchased on a pro rata basis. Upon completion of such
offer to purchase, the amount of Excess Proceeds shall be reset at zero.
CERTAIN COVENANTS
RESTRICTED PAYMENTS
The Senior Note Indenture provides that from and after the date of the
Senior Note Indenture the Company will not, and will not permit any of its
Restricted Subsidiaries to, directly or indirectly: (i) declare or pay any
dividend or make any other payment or distribution on account of the Company's
or any of its Restricted Subsidiaries' Equity Interests (including, without
limitation, any payment in connection with any merger or consolidation involving
the Company) or to the direct or indirect holders of the Company's or any of its
Restricted Subsidiaries' Equity Interests in their capacity as such (other than
dividends or distributions payable in Equity Interests (other than Disqualified
Stock) of the Company); (ii) purchase, redeem or otherwise acquire or retire for
value (including without limitation, in connection with any merger or
consolidation involving the Company) any Equity Interests of the Company or any
direct or indirect parent of the Company; (iii) make any payment on or with
respect to, or purchase, redeem, defease or otherwise acquire or retire for
value any Indebtedness that is pari passu with or subordinated to the Senior
Notes (other than Senior Notes), except scheduled payments of interest or
principal at Stated Maturity of such Indebtedness; or (iv) make any Restricted
Investment (all such payments and other actions set forth in clauses (i) through
(iv) above being collectively referred to as "Restricted Payments"), unless, at
the time of and after giving effect to such Restricted Payment:
(a) no Default or Event of Default shall have occurred and be
continuing or would occur as a consequence thereof; and
(b) the Company would, at the time of such Restricted Payment and
after giving pro forma effect thereto as if such Restricted Payment had
been made at the beginning of the applicable four-quarter period, have been
permitted to incur at least $1.00 of additional Indebtedness pursuant to
the Fixed Charge Coverage Ratio test set forth in the first paragraph of
the covenant described below under caption "-- Incurrence of Indebtedness
and Issuance of Preferred Stock"; and
(c) such Restricted Payment, together with the aggregate amount of all
other Restricted Payments made by the Company and its Subsidiaries after
the date of the Indenture (excluding Restricted Payments permitted by
clause (ii) of the next succeeding paragraph), is less than the sum of (i)
50% of the Consolidated Net Income of the Company for the period (taken as
one accounting period) from the beginning of the first fiscal quarter
commencing after the date of the Indenture to the end of the Company's most
recently ended fiscal quarter for which internal financial statements are
available at the time of such Restricted Payment (or, if such Consolidated
Net Income for such period is a deficit, less 100% of such deficit), plus
(ii) 100% of the aggregate net cash proceeds received by the Company from
the issue or sale since the date of the Indenture of Equity Interests of
the Company (other than Disqualified Stock) or of Disqualified Stock or
debt securities of the Company that have been converted into such Equity
Interests (other than Equity Interests (or
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Disqualified Stock or convertible debt securities) sold to a Subsidiary of
the Company and other than Disqualified Stock or convertible debt
securities that have been converted into Disqualified Stock), plus (iii) to
the extent that any Restricted Investment that was made after the date of
the Indenture is sold for cash or otherwise liquidated or repaid for cash,
the lesser of (A) the cash return of capital with respect to such
Restricted Investment (less the cost of disposition, if any) and (B) the
initial amount of such Restricted Investment, plus (iv) if any Unrestricted
Subsidiary (A) is redesignated as a Restricted Subsidiary, the fair market
value of such redesignated Subsidiary (as determined in good faith by the
Board of Directors) as of the date of its redesignation or (B) pays any
cash dividends or cash distributions to the Company or any of its
Restricted Subsidiaries, 50% of any such cash dividends or cash
distributions made after the date of the Indenture.
The foregoing provisions will not prohibit (i) the payment of any dividend
within 60 days after the date of declaration thereof, if at said date of
declaration such payment would have complied with the provisions of the
Indenture; (ii) the redemption, repurchase, retirement, defeasance or other
acquisition of any pari passu or subordinated Indebtedness or Equity Interests
of the Company in exchange for, or out of the net cash proceeds of the
substantially concurrent sale or issuance (other than to a Restricted Subsidiary
of the Company) of, other Equity Interests of the Company (other than any
Disqualified Stock); provided that the amount of any such net cash proceeds that
are utilized for any such redemption, repurchase, retirement, defeasance or
other acquisition shall be excluded from clause (c)(ii) of the preceding
paragraph; (iii) the defeasance, redemption, repurchase or other acquisition of
pari passu or subordinated Indebtedness with the net cash proceeds from an
incurrence of Permitted Refinancing Indebtedness; (iv) the payment of any
dividend by a Restricted Subsidiary of the Company to the holders of its Equity
Interests on a pro rata basis; (v) the declaration or payment of dividends to
NEHC for expenses incurred by NEHC or Holberg in its capacity as a holding
company that are attributable to the operations of the Company and its
Restricted Subsidiaries, including, without limitation, (a) customary salary,
bonus and other benefits payable to officers and employees of NEHC or Holberg,
(b) fees and expenses paid to members of the Board of Directors of NEHC or
Holberg, (c) general corporate overhead expenses of NEHC or Holberg, (d)
foreign, federal, state or local tax liabilities paid by NEHC or Holberg, (e)
management, consulting or advisory fees paid to Holberg not to exceed $4.0
million in any fiscal year, and (f) the repurchase, redemption or other
acquisition or retirement for value of any Equity Interests of NEHC or Holberg
held by any member of NEHC's or the Company's (or any of their Restricted
Subsidiaries') management pursuant to any management equity subscription
agreement or stock option agreement in effect as of the date of the Senior Note
Indenture; provided, however, the aggregate amount paid pursuant to the
foregoing clauses (a) through (f) does not exceed $7.0 million in any fiscal
year; (vi) Investments in any Person (other than the Company or a Wholly-Owned
Restricted Subsidiary) engaged in a Permitted Business in an amount not to
exceed $5.0 million; (vii) other Investments in Unrestricted Subsidiaries having
an aggregate fair market value, taken together with all other Investments made
pursuant to this clause (vii) that are at that time outstanding, not to exceed
$2.0 million; (viii) Permitted Investments; (ix) payments to NEHC or Holberg
pursuant to the tax sharing agreement among Holberg and other members of the
affiliated corporations of which Holberg is the common parent; (x) optional and
mandatory prepayments on any Indebtedness incurred under the Credit Facility or
other senior secured Indebtedness allowed to be incurred pursuant to the
covenant described below under the caption "-- Incurrence of Indebtedness and
Issuance of Preferred Stock"; or (xi) other Restricted Payments in an aggregate
amount not to exceed $10.0 million.
The Board of Directors may designate any Restricted Subsidiary to be an
Unrestricted Subsidiary if such designation would not cause a Default; provided
that in no event shall the business currently operated by any Subsidiary
Guarantor be transferred to or held by an Unrestricted Subsidiary. For purposes
of making such determination, all outstanding Investments by the Company and its
Restricted Subsidiaries (except to the extent repaid in cash) in the Subsidiary
so designated will be deemed to be Restricted Payments at the time of such
designation and will reduce the amount available for Restricted Payments under
the first paragraph of this covenant. All such outstanding Investments will be
deemed to constitute Investments in an amount equal to the fair market value of
such Investments at the time of such designation (as determined in good faith by
the Board of Directors). Such designation will only be
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permitted if such Restricted Payment would be permitted at such time and if such
Restricted Subsidiary otherwise meets the definition of an Unrestricted
Subsidiary.
The amount of all Restricted Payments (other than cash) shall be the fair
market value on the date of the Restricted Payment of the asset(s) or securities
proposed to be transferred or issued by the Company or such Subsidiary, as the
case may be, pursuant to the Restricted Payment. The fair market value of any
non-cash Restricted Payment shall be determined in good faith by the Board of
Directors whose resolution with respect thereto shall be delivered to the
Trustee; such determination will be based upon an opinion or appraisal issued by
an accounting, appraisal or investment banking firm of national standing if such
fair market value exceeds $10.0 million. Not later than the date of making any
Restricted Payment, the Company shall deliver to the Trustee an Officers'
Certificate stating that such Restricted Payment is permitted and setting forth
the basis upon which the calculations required by the covenant "-- Restricted
Payments" were computed, together with a copy of any fairness opinion or
appraisal required by the Senior Note Indenture.
INCURRENCE OF INDEBTEDNESS AND ISSUANCE OF PREFERRED STOCK
The Senior Note Indenture provides that the Company will not, and will not
permit any of its Subsidiaries to, directly or indirectly, create, incur, issue,
assume, guarantee or otherwise become directly or indirectly liable,
contingently or otherwise, with respect to (collectively, "incur") any
Indebtedness (including Acquired Debt) and that the Company will not issue any
Disqualified Stock and will not permit any of its Subsidiaries to issue any
shares of preferred stock; provided, however, that the Company may incur
Indebtedness (including Acquired Debt) or issue shares of Disqualified Stock if
the Fixed Charge Coverage Ratio for the Company's most recently ended four full
fiscal quarters for which internal financial statements are available
immediately preceding the date on which such additional Indebtedness is incurred
or such Disqualified Stock is issued would have been at least 2.0 to 1.0,
determined on a pro forma basis (including a pro forma application of the net
proceeds therefrom), as if the additional Indebtedness had been incurred, or the
Disqualified Stock had been issued, as the case may be, at the beginning of such
four-quarter period.
The provisions of the first paragraph of this covenant do not apply to the
incurrence of any of the following items of Indebtedness (collectively,
"Permitted Debt"):
(i) the incurrence by the Company and its Restricted Subsidiaries of
Indebtedness represented by the Senior Subordinated Notes and the
guarantees thereof, respectively;
(ii) the incurrence by the Company of Indebtedness and letters of
credit pursuant to the Credit Facility; provided that the aggregate
principal amount of all such Indebtedness (with letters of credit being
deemed to have a principal amount equal to the maximum potential liability
of the Company thereunder) outstanding under the Credit Facility after
giving effect to such incurrence does not exceed the sum of $225.0 million
plus the Borrowing Base;
(iii) the incurrence by the Company and its Restricted Subsidiaries of
the Existing Indebtedness;
(iv) the incurrence by the Company and the Subsidiary Guarantors of
Indebtedness represented by the Senior Notes and the Senior Note
Guarantees, respectively;
(v) the incurrence by the Company or any of its Restricted
Subsidiaries of Indebtedness represented by Capital Lease Obligations,
mortgage financings or purchase money obligations, in each case incurred
for the purpose of financing all or any part of the purchase price or cost
of construction or improvement of property, plant or equipment used in the
business of the Company or such Restricted Subsidiary (whether through the
direct purchase of assets or the Capital Stock of any Person owning such
Assets), in an aggregate principal amount not to exceed $125.0 million;
(vi) the incurrence by the Company or any of its Restricted
Subsidiaries of Indebtedness in connection with the acquisition of assets
or a new Restricted Subsidiary; provided that such Indebtedness was
incurred by the prior owner of such assets or such Restricted Subsidiary
prior to
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such acquisition by the Company or one of its Subsidiaries and was not
incurred in connection with, or in contemplation of, such acquisition by
the Company or one of its Subsidiaries; provided further that the principal
amount (or accreted value, as applicable) of such Indebtedness, together
with any other outstanding Indebtedness incurred pursuant to this clause
(vi), does not exceed $5.0 million;
(vii) the incurrence by the Company or any of its Restricted
Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the
net proceeds of which are used to refund, refinance or replace Indebtedness
that was permitted by the Senior Note Indenture to be incurred;
(viii) the incurrence by the Company or any of its Restricted
Subsidiaries of intercompany Indebtedness between or among the Company and
any of its Wholly-Owned Restricted Subsidiaries; provided, however, that
(i) if the Company is the obligor on such Indebtedness and the payee is not
a Subsidiary Guarantor, such Indebtedness is expressly subordinated to the
prior payment in full in cash of all Obligations with respect to the Senior
Notes and (ii)(A) any subsequent issuance or transfer of Equity Interests
that results in any such Indebtedness being held by a Person other than the
Company or a Wholly Owned Restricted Subsidiary and (B) any sale or other
transfer of any such Indebtedness to a Person that is not either the
Company or a Wholly Owned Restricted Subsidiary shall be deemed, in each
case, to constitute an incurrence of such Indebtedness by the Company or
such Restricted Subsidiary, as the case may be;
(ix) the incurrence by the Company or any of its Restricted
Subsidiaries of Hedging Obligations that are incurred for the purpose of
fixing or hedging currency risk or interest rate risk with respect to any
floating rate Indebtedness that is permitted by the terms of the Senior
Note Indenture to be outstanding;
(x) the guarantee by the Company or any of its Restricted Subsidiaries
of Indebtedness of the Company or a Restricted Subsidiary of the Company
that was permitted to be incurred by another provision of this covenant;
(xi) the incurrence by the Company's Unrestricted Subsidiaries of
Non-Recourse Debt, provided, however, that if any such Indebtedness ceases
to be Non-Recourse Debt of an Unrestricted Subsidiary, such event shall be
deemed to constitute an incurrence of Indebtedness by a Restricted
Subsidiary of the Company;
(xii) Asset Sales in the form of Receivables Transactions;
(xiii) Indebtedness incurred by the Company or any of its Restricted
Subsidiaries constituting reimbursement obligations with respect to letters
of credit issued in the ordinary course of business, including without
limitation to letters of credit in respect to workers' compensation claims
or self-insurance, or other Indebtedness with respect to reimbursement type
obligations regarding workers' compensation claims; provided, however, that
upon the drawing of such letters of credit or the incurrence of such
Indebtedness, such obligations are reimbursed within 30 days following such
drawing or incurrence;
(xiv) Indebtedness arising from agreements of the Company or a
Restricted Subsidiary providing for indemnification, adjustment of purchase
price or similar obligations, in each case, incurred or assumed in
connection with the disposition of any business, asset or Subsidiary, other
than guarantees of Indebtedness incurred by any Person acquiring all or any
portion of such business, assets or Subsidiary for the purpose of financing
such acquisition; provided that the maximum aggregate liability of all such
Indebtedness shall at no time exceed 50% of the gross proceeds actually
received by the Company or a Restricted Subsidiary in connection with such
disposition;
(xv) obligations in respect of performance and surety bonds and
completion guarantees provided by the Company or any Restricted Subsidiary
in the ordinary course of business;
(xvi) guarantees incurred in the ordinary course of business in an
aggregate principal amount not to exceed $5.0 million at any time
outstanding; and
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(xvii) the incurrence by the Company or any of its Restricted
Subsidiaries of additional Indebtedness, including Attributable Debt
incurred after the date of the Senior Note Indenture, in an aggregate
principal amount (or accreted value, as applicable) at any time
outstanding, including all Permitted Refinancing Indebtedness incurred to
refund, refinance or replace any other Indebtedness incurred pursuant to
this clause (xvii), not to exceed $25.0 million.
For purposes of determining compliance with this covenant, in the event
that an item of Indebtedness meets the criteria of more than one of the
categories of Permitted Debt described in clauses (i) through (xvii) above or is
entitled to be incurred pursuant to the first paragraph of this covenant, the
Company shall, in its sole discretion, classify such item of Indebtedness in any
manner that complies with this covenant and such item of Indebtedness will be
treated as having been incurred pursuant to only one of such clauses or pursuant
to the first paragraph hereof. Accrual of interest and the accretion of accreted
value will not be deemed to be an incurrence of Indebtedness for purposes of
this covenant.
LIENS
The Indenture provides that the Company will not, and will not permit any
of its Restricted Subsidiaries to, create, incur, assume or otherwise cause or
suffer to exist or become effective any Lien (other than Permitted Liens) upon
any of their property or assets, now owned or hereafter acquired.
DIVIDEND AND OTHER PAYMENT RESTRICTIONS AFFECTING RESTRICTED SUBSIDIARIES
The Senior Note Indenture provides that the Company will not, and will not
permit any of its Restricted Subsidiaries to, directly or indirectly, create or
otherwise cause or suffer to exist or become effective any encumbrance or
restriction on the ability of any Restricted Subsidiary to (i)(a) pay dividends
or make any other distributions to the Company or any of its Restricted
Subsidiaries (1) on its Capital Stock or (2) with respect to any other interest
or participation in, or measured by, its profits, or (b) pay any indebtedness
owed to the Company or any of its Restricted Subsidiaries, (ii) make loans or
advances to the Company or any of its Restricted Subsidiaries or (iii) transfer
any of its properties or assets to the Company or any of its Restricted
Subsidiaries, except for such encumbrances or restrictions existing under or by
reason of (a) Existing Indebtedness as in effect on the date of the Senior Note
Indenture, (b) the Credit Facility as in effect as of the date of the Senior
Note Indenture, and any amendments, modifications, restatements, renewals,
increases, supplements, refundings, replacements or refinancings thereof,
provided that such amendments, modifications, restatements, renewals, increases,
supplements, refundings, replacement or refinancings are no more restrictive in
the aggregate (as determined by the Credit Agent in good faith) with respect to
such dividend and other payment restrictions than those contained in the Credit
Facility as in effect on the date of the Senior Note Indenture, (c) the Senior
Note Indenture and the Senior Notes, (d) any applicable law, rule, regulation or
order, (e) any instrument governing Indebtedness or Capital Stock of a Person
acquired by the Company or any of its Restricted Subsidiaries as in effect at
the time of such acquisition (except to the extent such Indebtedness was
incurred in connection with or in contemplation of such acquisition), which
encumbrance or restriction is not applicable to any Person, or the properties or
assets of any Person, other than the Person, or the property or assets of the
Person, so acquired, provided that, in the case of Indebtedness, such
Indebtedness was permitted by the terms of the Senior Note Indenture to be
incurred, (f) by reason of customary non-assignment provisions in leases entered
into in the ordinary course of business and consistent with past practices, (g)
purchase money obligations for property acquired in the ordinary course of
business that impose restrictions of the nature described in clause (iii) above
on the property so acquired, (h) Permitted Refinancing Indebtedness, provided
that the material restrictions contained in the agreements governing such
Permitted Refinancing Indebtedness are no more restrictive than those contained
in the agreements governing the Indebtedness being refinanced, (i) contracts for
the sale of assets, including without limitation customary restrictions with
respect to a Subsidiary pursuant to an agreement that has been entered into for
the sale or disposition of all or substantially all of the Capital Stock or
assets of such Subsidiary, and (j) restrictions on cash or other deposits or net
worth imposed by customers under contracts entered into in the ordinary course
of business.
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MERGER, CONSOLIDATION, OR SALE OF ASSETS
The Senior Note Indenture provides that the Company may not consolidate or
merge with or into (whether or not the Company is the surviving corporation), or
sell, assign, transfer, lease, convey or otherwise dispose of all or
substantially all of its properties or assets in one or more related
transactions, to another corporation, Person or entity unless (i) the Company is
the surviving corporation or the entity or the Person formed by or surviving any
such consolidation or merger (if other than the Company) or to which such sale,
assignment, transfer, lease, conveyance or other disposition shall have been
made is a corporation organized or existing under the laws of the United States,
any state thereof or the District of Columbia; (ii) the entity or Person formed
by or surviving any such consolidation or merger (if other than the Company) or
the entity or Person to which such sale, assignment, transfer, lease, conveyance
or other disposition shall have been made assumes all the obligations of the
Company under the Senior Notes and the Senior Note Indenture pursuant to a
supplemental indenture in a form reasonably satisfactory to the Senior Note
Trustee; (iii) immediately after such transaction no Default or Event of Default
exists; and (iv) except in the case of a merger of the Company with or into a
Wholly-Owned Restricted Subsidiary of the Company, the Company or the entity or
Person formed by or surviving any such consolidation or merger (if other than
the Company), or to which such sale, assignment, transfer, lease, conveyance or
other disposition shall have been made will, at the time of such transaction and
after giving pro forma effect thereto as if such transaction had occurred at the
beginning of the applicable four-quarter period, be permitted to incur at least
$1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio
test set forth in the first paragraph of the covenant described above under the
caption "-- Incurrence of Indebtedness and Issuance of Preferred Stock."
TRANSACTIONS WITH AFFILIATES
The Senior Note Indenture provides that the Company will not, and will not
permit any of its Restricted Subsidiaries to, make any payment to, or sell,
lease, transfer or otherwise dispose of any of its properties or assets to, or
purchase any property or assets from, or enter into or make or amend any
transaction, contract, agreement, understanding, loan, advance or guarantee
with, or for the benefit of, any Affiliate (each of the foregoing, an "Affiliate
Transaction") involving consideration in excess of $3.0 million unless (i) such
Affiliate Transaction is on terms that are no less favorable to the Company or
the relevant Restricted Subsidiary than those that would have been obtained in a
comparable transaction by the Company or such Restricted Subsidiary with an
unrelated Person and (ii) the Company delivers to the Senior Note Trustee (a)
with respect to any Affiliate Transaction or series of related Affiliate
Transactions involving aggregate consideration in excess of $7.5 million, a
resolution of the Board of Directors set forth in an Officers' Certificate
certifying that such Affiliate Transaction complies with clause (i) above and
that such Affiliate Transaction has been approved by a majority of the
disinterested members of the Board of Directors and (b) with respect to any
Affiliate Transaction or series of related Affiliate Transactions involving
either aggregate consideration in excess of $15.0 million or an aggregate
consideration in excess of $10.0 million where there are no disinterested
members of the Board of Directors, an opinion as to the fairness to the holders
of such Affiliate Transaction from a financial point of view issued by an
accounting, appraisal or investment banking firm of national standing; provided
that the following shall not be deemed Affiliate Transactions: (q) any
employment agreement entered into by the Company or any of its Restricted
Subsidiaries in the ordinary course of business and consistent with the past
practice of the Company or such Restricted Subsidiary, (r) transactions between
or among the Company and/or its Restricted Subsidiaries, (s) Permitted
Investments and Restricted Payments that are permitted by the provisions of the
Senior Note Indenture described above under the caption "-- Restricted
Payments," (t) customary loans, advances, fees and compensation paid to, and
indemnity provided on behalf of, officers, directors, employees or consultants
of the Company or any of its Restricted Subsidiaries, (u) annual management fees
paid to Holberg not to exceed $5.0 million in any one year, (v) transactions
pursuant to any contract or agreement in effect on the date of the Senior Note
Indenture as the same may be amended, modified or replaced from time to time so
long as any such amendment, modification or replacement is no less favorable to
the Company and its Restricted Subsidiaries than the contract or agreement as in
effect on the Issue Date or is approved by a majority of the disinterested
directors of
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NEHC, (w) transactions between the Company or its Restricted Subsidiaries on the
one hand, and Holberg on the other hand, involving the provision of financial or
advisory services by Holberg; provided that fees payable to Holberg do not
exceed the usual and customary fees for similar services, (x) transactions
between the Company or its Restricted Subsidiaries on the one hand, and
Donaldson, Lufkin & Jenrette Securities Corporation or its Affiliates ("DLJ") on
the other hand, involving the provision of financial, advisory, placement or
underwriting services by DLJ; provided that fees payable to DLJ do not exceed
the usual and customary fees of DLJ for similar services, (y) the insurance
arrangements between NEHC and its Subsidiaries and an Affiliate of Holberg that
are not less favorable to the Company or any of its Subsidiaries than those that
are in effect on the date hereof provided such arrangements are conducted in the
ordinary course of business consistent with past practices, and (z) payments
under the tax sharing agreement among Holberg and other members of the
affiliated group of corporations of which it is the common parent.
SALE AND LEASEBACK TRANSACTIONS
The Senior Note Indenture provides that the Company will not, and will not
permit any of its Restricted Subsidiaries to, enter into any sale and leaseback
transaction; provided that the Company may enter into a sale and leaseback
transaction if (i) the Company could have (a) incurred Indebtedness in an amount
equal to the Attributable Debt relating to such sale and leaseback transaction
pursuant to the covenant described above under the caption "--Incurrence of
Indebtedness and Issuance of Preferred Stock" and (b) incurred a Lien to secure
such Indebtedness pursuant to the covenant described above under the caption
"-- Liens," (ii) the gross cash proceeds of such sale and leaseback transaction
are at least equal to the fair market value (as determined in good faith by the
Board of Directors and set forth in an Officers' Certificate delivered to the
Senior Note Trustee) of the property that is the subject of such sale and
leaseback transaction and (iii) the transfer of assets in such sale and
leaseback transaction is permitted by, and the Company applies the proceeds of
such transaction in compliance with, the covenant described above under the
caption "-- Repurchase at the Option of Holders -- Asset Sales."
LIMITATION ON ISSUANCES AND SALES OF CAPITAL STOCK OF WHOLLY-OWNED RESTRICTED
SUBSIDIARIES
The Senior Note Indenture provides that the Company (i) will not, and will
not permit any Wholly-Owned Restricted Subsidiary of the Company to, transfer,
convey, sell, lease or otherwise dispose of any Capital Stock of any
Wholly-Owned Subsidiary of the Company to any Person (other than the Company or
a Wholly-Owned Restricted Subsidiary of the Company), unless (a) such transfer,
conveyance, sale, lease or other disposition is of all the Capital Stock of such
Wholly-Owned Restricted Subsidiary and (b) the cash Net Proceeds from such
transfer, conveyance, sale, lease or other disposition are applied in accordance
with the covenant described above under the caption "-- Asset Sales," and (ii)
will not permit any Wholly-Owned Restricted Subsidiary of the Company to issue
any of its Equity Interests (other than, if necessary, shares of its Capital
Stock constituting directors' qualifying shares) to any Person other than to the
Company or a Wholly-Owned Restricted Subsidiary of the Company.
LIMITATIONS ON ISSUANCES OF GUARANTEES OF INDEBTEDNESS
The Senior Note Indenture provides that the Company will not permit any
Restricted Subsidiary, directly or indirectly, to Guarantee or pledge any assets
to secure the payment of any other Indebtedness of the Company unless either
such Restricted Subsidiary (x) is a Subsidiary Guarantor or (y) simultaneously
executes and delivers a supplemental indenture to the Senior Note Indenture
providing for the Guarantee of the payment of the Senior Notes by such
Restricted Subsidiary, which Guarantee shall be senior to or pari passu with
such Restricted Subsidiary's Guarantee of or pledge to secure such other
Indebtedness. Notwithstanding the foregoing, any such Guarantee by a Restricted
Subsidiary of the Senior Notes shall provide by its terms that it shall be
automatically and unconditionally released and discharged upon any sale,
exchange or transfer, to any Person not an Affiliate of the Company, of all of
the Company's stock in, or all or substantially all the assets of, such
Restricted Subsidiary, which sale,
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exchange or transfer is made in compliance with the applicable provisions of the
Senior Note Indenture. The form of such Guarantee will be attached as an exhibit
to the Senior Note Indenture.
BUSINESS ACTIVITIES
The Company will not, and will not permit any Restricted Subsidiary to,
engage in any business other than a Permitted Business, except to such extent as
would not be material to the Company and its Restricted Subsidiaries taken as a
whole.
ADDITIONAL GUARANTEES
The Senior Note Indenture provides that (i) if the Company or any of its
Restricted Subsidiaries shall, after the date of the Senior Note Indenture,
transfer or cause to be transferred, including by way of any Investment, in one
or a series of transactions (whether or not related), any assets, businesses,
divisions, real property or equipment having an aggregate fair market value (as
determined in good faith by the Board of Directors) in excess of $1.0 million to
any Restricted Subsidiary that is not a Subsidiary Guarantor or a Foreign
Subsidiary, (ii) if the Company or any of its Restricted Subsidiaries shall
acquire another Restricted Subsidiary other than a Foreign Subsidiary having
total assets with a fair market value (as determined in good faith by the Board
of Directors) in excess of $1.0 million, or (iii) if any Restricted Subsidiary
other than a Foreign Subsidiary shall incur Acquired Debt in excess of $1.0
million, then the Company shall, at the time of such transfer, acquisition or
incurrence, (i) cause such transferee, acquired Restricted Subsidiary or
Restricted Subsidiary incurring Acquired Debt (if not then a Subsidiary
Guarantor) to execute a Senior Note Guarantee of the Obligations of the Company
under the Senior Notes in the form set forth in the Indenture and (ii) deliver
to the Trustee an Opinion of Counsel, in form reasonably satisfactory to the
Senior Note Trustee, that such Senior Note Guarantee is a valid, binding and
enforceable obligation of such transferee, acquired Restricted Subsidiary or
Restricted Subsidiary incurring Acquired Debt, subject to customary exceptions
for bankruptcy, fraudulent conveyance and equitable principles. Notwithstanding
the foregoing, the Company or any of its Restricted Subsidiaries may make a
Restricted Investment in any Wholly-Owned Restricted Subsidiary of the Company
without compliance with this covenant provided that such Restricted Investment
is permitted by the covenant described under the caption, "-- Restricted
Payments."
REPORTS
The Senior Note Indenture provides that, whether or not required by the
rules and regulations of the Commission, so long as any Senior Notes are
outstanding, the Company will furnish to the holders of Senior Notes (i) all
quarterly and annual financial information that would be required to be
contained in a filing with the Commission on Forms 10-Q and 10-K if the Company
were required to file such Forms, including a "Management's Discussion and
Analysis of Financial Condition and Results of Operations" and, with respect to
the annual information only, a report thereon by the Company's certified
independent accountants and (ii) all current reports that would be required to
be filed with the Commission on Form 8-K if the Company were required to file
such reports. In addition, whether or not required by the rules and regulations
of the Commission, the Company will file a copy of all such information and
reports with the Commission for public availability (unless the Commission will
not accept such a filing) and make such information available to securities
analysts and prospective investors upon request. In addition, the Company has
agreed that, for so long as any Senior Notes remain outstanding, it will furnish
to the holders and to securities analysts and prospective investors, upon their
request, the information required to be delivered pursuant to Rule 144A(d)(4)
under the Securities Act.
EVENTS OF DEFAULT AND REMEDIES
The Senior Note Indenture provides that each of the following constitutes
an Event of Default: (i) default for 30 days in the payment when due of interest
on, or Liquidated Damages with respect to, the Senior Notes; (ii) default in
payment when due of the principal of or premium, if any, on the Senior Notes;
(iii) failure by the Company to comply with the provisions described under the
captions
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"--Repurchase at the Option of Holders -- Change of Control," "-- Certain
Covenants -- Asset Sales," or "-- Certain Covenants -- Merger, Consolidation, or
Sale of Assets"; (iv) failure by the Company for 30 days after notice from the
Trustee or at least 25% in principal amount of the Senior Notes then outstanding
to comply with the provisions described under the captions "-- Restricted
Payments" or "-- Incurrence of Indebtedness and Issuance of Preferred Stock";
(v) failure by the Company for 60 days after notice from the Trustee or at least
25% in principal amount of the Senior Notes then outstanding to comply with any
of its other agreements in the Senior Note Indenture or the Senior Notes; (vi)
default under any mortgage, indenture or instrument under which there may be
issued or by which there may be secured or evidenced any Indebtedness for money
borrowed by the Company or any of its Subsidiaries (or the payment of which is
guaranteed by the Company or any of its Subsidiaries) whether such Indebtedness
or Guarantee now exists, or is created after the date of the Senior Note
Indenture, which default (a) is caused by a failure to pay principal of or
premium, if any, or interest on such Indebtedness prior to the expiration of the
grace period provided in such Indebtedness on the date of such default (a
"Payment Default") or (b) results in the acceleration of such Indebtedness prior
to its express maturity and, in each case, the principal amount of any such
Indebtedness, together with the principal amount of any other such Indebtedness
under which there has been a Payment Default or the maturity of which has been
so accelerated, aggregates $15.0 million or more; (vii) failure by the Company
or any of its Subsidiaries to pay final judgments aggregating in excess of $5.0
million, which judgments are not paid, discharged or stayed for a period of 60
days; and (viii) certain events of bankruptcy or insolvency with respect to the
Company or any of its Subsidiaries.
If any Event of Default occurs and is continuing, the Senior Note Trustee
or the holders of at least 25% in principal amount of the then outstanding
Senior Notes may declare all the Senior Notes to be due and payable immediately.
Notwithstanding the foregoing, in the case of an Event of Default arising from
certain events of bankruptcy or insolvency, with respect to the Company or any
of its Subsidiaries all outstanding Senior Notes will become due and payable
without further action or notice. Holders of the Senior Notes may not enforce
the Senior Note Indenture or the Senior Notes except as provided in the Senior
Note Indenture. Subject to certain limitations, holders of a majority in
principal amount of the then outstanding Senior Notes may direct the Trustee in
its exercise of any trust or power. The Trustee may withhold from holders of the
Senior Notes notice of any continuing Default or Event of Default (except a
Default or Event of Default relating to the payment of principal or interest) if
it determines that withholding notice is in their interest.
In the case of any Event of Default occurring by reason of any willful
action (or inaction) taken (or not taken) by or on behalf of the Company with
the intention of avoiding payment of the premium that the Company would have had
to pay if the Company then had elected to redeem the Senior Notes pursuant to
the optional redemption provisions of the Senior Note Indenture, an equivalent
premium shall also become and be immediately due and payable to the extent
permitted by law upon the acceleration of the Senior Notes. If an Event of
Default occurs prior to April 15, 2002 by reason of any willful action (or
inaction) taken (or not taken) by or on behalf of the Company with the intention
of avoiding the prohibition on redemption of the Senior Notes prior to April 15,
2002, then the premium specified in the Senior Note Indenture shall also become
immediately due and payable to the extent permitted by law upon the acceleration
of the Senior Notes.
The holders of a majority in aggregate principal amount of the Senior Notes
then outstanding by notice to the Trustee may on behalf of the holders of all of
the Senior Notes waive any existing Default or Event of Default and its
consequences under the Senior Note Indenture except a continuing Default or
Event of Default in the payment of interest on, or the principal of, the Senior
Notes.
The Company is required to deliver to the Trustee annually a statement
regarding compliance with the Senior Note Indenture, and the Company is required
upon becoming aware of any Default or Event of Default, to deliver to the
Trustee a statement specifying such Default or Event of Default.
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NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS, EMPLOYEES AND STOCKHOLDERS
No director, officer, employee, incorporator or stockholder of the Company
or the Subsidiary Guarantors, as such, shall have any liability for any
obligations of the Company or any Subsidiary Guarantor under the Senior Notes,
the Senior Note Indenture, the Senior Note Guarantees or for any claim based on,
in respect of, or by reason of, such obligations or their creation. Each holder
of Senior Notes by accepting a Senior Note waives and releases all such
liability. The waiver and release are part of the consideration for issuance of
the Senior Notes. Such waiver may not be effective to waive liabilities under
the federal securities laws and it is the view of the Commission that such a
waiver is against public policy.
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
The Company may, at its option and at any time, elect to have all of its
obligations discharged with respect to the outstanding Senior Notes and all
obligations of the Subsidiary Guarantors under the Senior Note Guarantees
("Legal Defeasance") except for (i) the rights of holders of outstanding Senior
Notes to receive payments in respect of the principal of, premium and Liquidated
Damages, if any, and interest on such Senior Notes when such payments are due
from the trust referred to below, (ii) the Company's obligations with respect to
the Senior Notes concerning issuing temporary Senior Notes, registration of
Senior Notes, mutilated, destroyed, lost or stolen Senior Notes and the
maintenance of an office or agency for payment and money for security payments
held in trust, (iii) the rights, powers, trusts, duties and immunities of the
Senior Note Trustee, and the Company's obligations in connection therewith and
(iv) the Legal Defeasance provisions of the Senior Note Indenture. In addition,
the Company may, at its option and at any time, elect to have the obligations of
the Company and the Subsidiary Guarantors released with respect to certain
covenants that are described in the Senior Note Indenture ("Covenant
Defeasance") and thereafter any omission to comply with such obligations shall
not constitute a Default or Event of Default with respect to the Senior Notes.
In the event Covenant Defeasance occurs, certain events (not including
non-payment, bankruptcy, receivership, rehabilitation and insolvency events)
described under "-- Events of Default" will no longer constitute an Event of
Default with respect to the Senior Notes.
In order to exercise either Legal Defeasance or Covenant Defeasance, (i)
the Company must irrevocably deposit with the Senior Note Trustee, in trust, for
the benefit of the holders of the Senior Notes, cash in U.S. dollars,
non-callable Government Securities, or a combination thereof, in such amounts as
will be sufficient, in the opinion of a nationally recognized firm of
independent public accountants, to pay the principal of, premium and Liquidated
Damages, if any, and interest on the outstanding Senior Notes on the stated
maturity or on the applicable redemption date, as the case may be, and the
Company must specify whether the Senior Notes are being defeased to maturity or
to a particular redemption date; (ii) in the case of Legal Defeasance, the
Company shall have delivered to the Senior Note Trustee an opinion of counsel in
the United States reasonably acceptable to the Senior Note Trustee confirming
that (A) the Company has received from, or there has been published by, the
Internal Revenue Service a ruling or (B) since the date of the Senior Note
Indenture, there has been a change in the applicable federal income tax law, in
either case to the effect that, and based thereon such opinion of counsel shall
confirm that, the holders of the outstanding Senior Notes will not recognize
income, gain or loss for federal income tax purposes as a result of such Legal
Defeasance and will be subject to federal income tax on the same amounts, in the
same manner and at the same times as would have been the case if such Legal
Defeasance had not occurred; (iii) in the case of Covenant Defeasance, the
Company shall have delivered to the Senior Note Trustee an opinion of counsel in
the United States reasonably acceptable to the Trustee confirming that the
holders of the outstanding Senior Notes will not recognize income, gain or loss
for federal income tax purposes as a result of such Covenant Defeasance and will
be subject to federal income tax on the same amounts, in the same manner and at
the same times as would have been the case if such Covenant Defeasance had not
occurred; (iv) no Default or Event of Default shall have occurred and be
continuing on the date of such deposit (other than a Default or Event of Default
resulting from the borrowing of funds to be applied to such deposit) or insofar
as Events of
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Default from bankruptcy or insolvency events are concerned, at any time in the
period ending on the 91st day after the date of deposit; (v) such Legal
Defeasance or Covenant Defeasance will not result in a breach or violation of,
or constitute a default under any material agreement or instrument (other than
the Indenture) to which the Company or any of its Subsidiaries is a party or by
which the Company or any of its Subsidiaries is bound; (vi) the Company must
have delivered to the Senior Note Trustee an opinion of counsel to the effect
that after the 91st day following the deposit, the trust funds will not be
subject to the effect of any applicable bankruptcy, insolvency, reorganization
or similar laws affecting creditors' rights generally; (vii) the Company must
deliver to the Senior Note Trustee an Officers' Certificate stating that the
deposit was not made by the Company with the intent of preferring the holders of
Senior Notes over the other creditors of the Company with the intent of
defeating, hindering, delaying or defrauding creditors of the Company or others;
and (viii) the Company must deliver to the Senior Note Trustee an Officers'
Certificate and an opinion of counsel, each stating that all conditions
precedent provided for relating to the Legal Defeasance or the Covenant
Defeasance have been complied with.
TRANSFER AND EXCHANGE
A holder may transfer or exchange Senior Notes in accordance with the
Senior Note Indenture. The Registrar and the Senior Note Trustee may require a
Holder, among other things, to furnish appropriate endorsements and transfer
documents and the Company may require a Holder to pay any taxes and fees
required by law or permitted by the Senior Note Indenture. The Company is not
required to transfer or exchange any Senior Note selected for redemption. Also,
the Company is not required to transfer or exchange any Senior Note for a period
of 15 days before a selection of Senior Notes to be redeemed.
The registered holder of a Senior Note will be treated as the owner of it
for all purposes.
AMENDMENT, SUPPLEMENT AND WAIVER
Except as provided in the next two succeeding paragraphs, the Indenture,
the Senior Notes or the Senior Note Guarantees may be amended or supplemented
with the consent of the holders of at least a majority in principal amount of
the Senior Notes then outstanding (including, without limitation, consents
obtained in connection with a purchase of, or tender offer or exchange offer
for, Senior Notes), and any existing default or compliance with any provision of
the Senior Note Indenture, the Senior Notes or the Senior Note Guarantees may be
waived with the consent of the holders of a majority in principal amount of the
then outstanding Senior Notes (including consents obtained in connection with a
tender offer or exchange offer for Senior Notes).
Without the consent of each holder affected, an amendment or waiver may not
(with respect to any Senior Notes held by a non-consenting holder): (i) reduce
the principal amount of Senior Notes whose holders must consent to an amendment,
supplement or waiver; (ii) reduce the principal of or change the fixed maturity
of any Senior Note or alter the provisions with respect to the redemption of the
Senior Notes (other than provisions relating to the covenants described above
under the caption "-- Repurchase at the Option of holders"); (iii) reduce the
rate of or change the time for payment of interest on any Senior Note; (iv)
waive a Default or Event of Default in the payment of principal of or premium,
if any, or interest on the Senior Notes (except a rescission of acceleration of
the Senior Notes by the holders of at least a majority in aggregate principal
amount of the Senior Notes and a waiver of the payment default that resulted
from such acceleration); (v) make any Senior Note payable in money other than
that stated in the Senior Notes; (vi) make any change in the provisions of the
Indenture relating to waivers of past Defaults or the rights of holders of
Senior Notes to receive payments of principal of or premium, if any, or interest
on the Senior Notes; (vii) waive a redemption payment with respect to any Senior
Note (other than a payment required by one of the covenants described above
under the caption "-- Repurchase at the Option of holders") or (viii) make any
change in the foregoing amendment and waiver provisions.
Notwithstanding the foregoing, without the consent of any Holder of Senior
Notes, the Company, the Subsidiary Guarantors and the Senior Note Trustee may
amend or supplement the Indenture, the Senior Notes or the Senior Note
Guarantees to cure any ambiguity, defect or inconsistency, to provide for
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uncertificated Senior Notes in addition to or in place of certificated Senior
Notes, to provide for the assumption of the Company's and the Subsidiary
Guarantors' obligations to holders of Senior Notes in the case of a merger or
consolidation, to make any change that would provide any additional rights or
benefits to the holders of Senior Notes or that does not adversely affect the
legal rights under the Senior Note Indenture of any such holder, to comply with
requirements of the Commission in order to effect or maintain the qualification
of the Senior Notes Indenture under the Trust Indenture Act or to allow any
Subsidiary to guarantee the Senior Notes.
CONCERNING THE SENIOR NOTE TRUSTEE
The Senior Note Indenture contains certain limitations on the rights of the
Senior Note Trustee, should it become a creditor of the Company, to obtain
payment of claims in certain cases, or to realize on certain property received
in respect of any such claim as security or otherwise. The Senior Note Trustee
will be permitted to engage in other transactions; however, if it acquires any
conflicting interest it must eliminate such conflict within 90 days, apply to
the Commission for permission to continue or resign.
The holders of a majority in principal amount of the then outstanding
Senior Notes will have the right to direct the time, method and place of
conducting any proceeding for exercising any remedy available to the Trustee,
subject to certain exceptions. The Senior Note Indenture provides that in case
an Event of Default shall occur (which shall not be cured), the Senior Note
Trustee will be required, in the exercise of its power, to use the degree of
care of a prudent man in the conduct of his own affairs. Subject to such
provisions, the Senior Note Trustee will be under no obligation to exercise any
of its rights or powers under the Senior Note Indenture at the request of any
holder of Senior Notes, unless such holder shall have offered to the Senior Note
Trustee security and indemnity satisfactory to it against any loss, liability or
expense.
ADDITIONAL INFORMATION
Anyone who receives this Prospectus may obtain a copy of the Senior Note
Indenture without charge by writing to AmeriServe, 15305 Dallas Parkway,
Addison, Texas 75001; Attention: Secretary.
CERTAIN DEFINITIONS
Set forth below are certain defined terms used in the Senior Note
Indenture. Reference is made to the Indenture for a full disclosure of all such
terms, as well as any other capitalized terms used herein for which no
definition is provided.
"Acquired Debt" means, with respect to any specified Person, (i)
Indebtedness of any other Person existing at the time such other Person is
merged with or into or became a Subsidiary of such specified Person, including,
without limitation, Indebtedness incurred in connection with, or in
contemplation of, such other Person merging with or into or becoming a
Subsidiary of such specified Person, and (ii) Indebtedness secured by a Lien
encumbering any asset acquired by such specified Person.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For purposes of this definition, "control"
(including, with correlative meanings, the terms "controlling," "controlled by"
and "under common control with"), as used with respect to any Person, shall mean
the possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of such Person, whether through the
ownership of voting securities, by agreement or otherwise; provided that
beneficial ownership of 10% or more of the voting securities of a Person shall
be deemed to be control.
"Asset Sale" means (i) the sale, lease, conveyance or other disposition of
any assets or rights (including, without limitation, by way of a sale and
leaseback) other than sales of inventory in the ordinary course of business
consistent with past practices and other than a Receivables Transaction
(provided that the sale, lease, conveyance or other disposition of all or
substantially all of the assets of the Company and its Restricted Subsidiaries
taken as a whole will be governed by the provisions of the
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Indenture described above under the caption "-- Repurchase at Option of
Holders -- Change of Control" and/or the provisions described above under the
caption "-- Certain Covenants -- Merger, Consolidation or Sale of Assets" and
not by the provisions of the Asset Sale covenant), and (ii) the issue or sale by
the Company or any of its Restricted Subsidiaries of Equity Interests of any of
the Company's Restricted Subsidiaries, in the case of either clause (i) or (ii),
whether in a single transaction or a series of related transactions (a) that
have a fair market value in excess of $3.0 million or (b) for net proceeds in
excess of $3.0 million. Notwithstanding the foregoing: (i) a transfer of assets
by the Company to a Wholly Owned Restricted Subsidiary or by a Wholly Owned
Restricted Subsidiary to the Company or to another Wholly Owned Restricted
Subsidiary, (ii) an issuance of Equity Interests by a Wholly Owned Restricted
Subsidiary to the Company or to another Wholly Owned Restricted Subsidiary, and
(iii) a Restricted Payment that is permitted by the covenant described above
under the caption "-- Certain Covenants -- Restricted Payments" will not be
deemed to be Asset Sales.
"Attributable Debt" in respect of a sale and leaseback transaction means,
at the time of determination, the present value (discounted at the rate of
interest implicit in such transaction, determined in accordance with GAAP) of
the obligation of the lessee for net rental payments during the remaining term
of the lease included in such sale and leaseback transaction (including any
period for which such lease has been extended or may, at the option of the
lessor, be extended).
"Borrowing Base" means, as of any date, an amount equal to the sum of (i)
85% of the sum of (a) the face amount of the Receivables of the Company and its
Restricted Subsidiaries and (b) the book value of the Company's undivided
interest in the assets of the AmeriServe Master Trust plus (ii) 65% of the book
value of all inventory of the Company and the Restricted Subsidiaries, all
calculated as of the end of the most recently completed month on a consolidated
basis and in accordance with GAAP.
"Capital Lease Obligation" means, at the time any determination thereof is
to be made, the amount of the liability in respect of a capital lease that would
at such time be required to be capitalized on a balance sheet in accordance with
GAAP.
"Capital Stock" means (i) in the case of a corporation, corporate stock,
(ii) in the case of an association or business entity, any and all shares,
interests, participations, rights or other equivalents (however designated) of
corporate stock, (iii) in the case of a partnership or limited liability
company, partnership or membership interests (whether general or limited) and
(iv) any other interest or participation that confers on a Person the right to
receive a share of the profits and losses of, or distributions of assets of, the
issuing Person.
"Cash Equivalents" means (i) United States dollars, (ii) securities issued
or directly and fully guaranteed or insured by the United States government or
any agency or instrumentality thereof having maturities of not more than six
months from the date of acquisition, (iii) certificates of deposit and
eurodollar time deposits with maturities of six months or less from the date of
acquisition, bankers' acceptances with maturities not exceeding six months and
overnight bank deposits, in each case with any lender party to the New Credit
Facility or with any domestic commercial bank having capital and surplus in
excess of $500 million and a Thompson Bank Watch Rating of "B" or better, (iv)
repurchase obligations with a term of not more than seven days for underlying
securities of the types described in clauses (ii) and (iii) above entered into
with any financial institution meeting the qualifications specified in clause
(iii) above, (v) commercial paper having the highest rating obtainable from
Moody's Investors Service, Inc. or Standard & Poor's Corporation and in each
case maturing within six months after the date of acquisition and (vi)
securities quoted by the Nasdaq National Market or listed on a United States,
Canadian or western European national securities exchange.
"Change of Control" means the occurrence of any of the following: (i) the
sale, lease, transfer, conveyance or other disposition (other than by way of
merger or consolidation), in one or a series of related transactions, of all or
substantially all of the assets of the Company and its Subsidiaries taken as a
whole to any "person" (as such term is used in Section 13(d)(3) of the Exchange
Act) other than the Principals or their Related Parties (as defined below), (ii)
the adoption of a plan relating to the liquidation or dissolution of the
Company, (iii) the consummation of any transaction (including, without
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limitation, any merger or consolidation) the result of which is that any
"person" (as defined above), other than the Principals and their Related
Parties, becomes the "beneficial owner" (as such term is defined in Rule 13d-3
and Rule 13d-5 under the Exchange Act, except that a person shall be deemed to
have "beneficial ownership" of all securities that such person has the right to
acquire, whether such right is currently exercisable or is exercisable only upon
the occurrence of a subsequent condition), directly or indirectly, of more than
50% of the Voting Stock of the Company (measured by voting power rather than
number of shares), (iv) the first day on which a majority of the members of the
Board of Directors of the Company are not Continuing Directors or (v) the
Company consolidates with, or merges with or into, any Person or sells, assigns,
conveys, transfers, leases or otherwise disposes of all or substantially all of
its assets to any Person, or any Person consolidates with, or merges with or
into, the Company, in any such event pursuant to a transaction in which any of
the outstanding Voting Stock of the Company is converted into or exchanged for
cash, securities or other property, other than any such transaction where the
Voting Stock of the Company outstanding immediately prior to such transaction is
converted into or exchanged for Voting Stock (other than Disqualified Stock) of
the surviving or transferee Person constituting a majority of the outstanding
shares of such Voting Stock of such surviving or transferee Person (immediately
after giving effect to such issuance).
"Consolidated Cash Flow" means, with respect to any Person for any period,
the Consolidated Net Income of such Person for such period plus (i) an amount
equal to any extraordinary loss plus any net loss realized in connection with an
Asset Sale (to the extent such losses were deducted in computing such
Consolidated Net Income), plus (ii) provision for taxes based on income or
profits of such Person and its Subsidiaries for such period, to the extent that
such provision for taxes was included in computing such Consolidated Net Income,
plus (iii) consolidated interest expense of such Person and its Subsidiaries for
such period, whether paid or accrued and whether or not capitalized (including,
without limitation, amortization of debt issuance costs and original issue
discount, non-cash interest payments, the interest component of any deferred
payment obligations, the interest component of all payments associated with
Capital Lease Obligations, commissions, discounts and other fees and charges
incurred in respect of letter of credit or bankers' acceptance financings, and
net payments (if any) pursuant to Hedging Obligations), to the extent that any
such expense was deducted in computing such Consolidated Net Income, plus (iv)
depreciation, amortization (including amortization of goodwill and other
intangibles but excluding amortization of prepaid cash expenses that were paid
in a prior period) and other non-cash expenses (excluding any such non-cash
expense to the extent that it represents an accrual of or reserve for cash
expenses in any future period or amortization of a prepaid cash expense that was
paid in a prior period) of such Person and its Subsidiaries for such period to
the extent that such depreciation, amortization and other non-cash expenses were
deducted in computing such Consolidated Net Income, plus (v) in connection with
any acquisition by the Company, projected quantifiable improvements in operating
results (on an annualized basis) due to cost reductions calculated in accordance
with Article 11 of Regulation S-X of the Securities Act and evidenced by (A) in
the case of cost reductions of less than $10.0 million, an Officers' Certificate
delivered to the Trustee and (B) in the case of cost reductions of $10.0 million
or more, a resolution of the Board of Directors set forth in an Officers'
Certificate delivered to the Trustee, minus (vi) non-cash items increasing such
Consolidated Net Income for such period. Notwithstanding the foregoing, the
provision for taxes on the income or profits of, and the depreciation and
amortization and other non-cash charges of, a Subsidiary of the referent Person
shall be added to Consolidated Net Income to compute Consolidated Cash Flow only
to the extent that a corresponding amount would be permitted at the date of
determination to be dividended to the Company by such Subsidiary without prior
governmental approval (that has not been obtained), and without direct or
indirect restriction pursuant to the terms of its charter and all agreements,
instruments, judgments, decrees, orders, statutes, rules and governmental
regulations applicable to that Subsidiary or its stockholders.
"Consolidated Net Income" means, with respect to any Person for any period,
the aggregate of the Net Income of such Person and its Restricted Subsidiaries
for such period, on a consolidated basis, determined in accordance with GAAP;
provided that (i) the Net Income (but not loss) of any Person that is not a
Restricted Subsidiary or that is accounted for by the equity method of
accounting shall be
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included only to the extent of the amount of dividends or distributions paid in
cash to the referent Person or a Wholly Owned Restricted Subsidiary thereof,
(ii) the Net Income of any Restricted Subsidiary shall be excluded to the extent
that the declaration or payment of dividends or similar distributions by that
Restricted Subsidiary of that Net Income is not at the date of determination
permitted without any prior governmental approval (that has not been obtained)
or, directly or indirectly, by operation of the terms of its charter or any
agreement, instrument, judgment, decree, order, statute, rule or governmental
regulation applicable to that Subsidiary or its stockholders, (iii) the Net
Income of any Person acquired in a pooling of interests transaction for any
period prior to the date of such acquisition shall be excluded, (iv) the
cumulative effect of a change in accounting principles shall be excluded and (v)
the Net Income of any Unrestricted Subsidiary shall be excluded, whether or not
distributed to the Company or one of its Restricted Subsidiaries for purposes of
the covenant described under the caption "Incurrence of Indebtedness and
Issuance of Preferred Stock" and shall be included for purposes of the covenant
described under the caption "Restricted Payments" only to the extent of the
amount of dividends or distributions paid in cash to the Company or one of its
Restricted Subsidiaries.
"Consolidated Net Worth" means, with respect to any Person as of any date,
the sum of (i) the consolidated equity of the common stockholders of such Person
and its consolidated Subsidiaries as of such date plus (ii) the respective
amounts reported on such Person's balance sheet as of such date with respect to
any series of preferred stock (other than Disqualified Stock) that by its terms
is not entitled to the payment of dividends unless such dividends may be
declared and paid only out of net earnings in respect of the year of such
declaration and payment, but only to the extent of any cash received by such
Person upon issuance of such preferred stock, less (x) all write-ups (other than
write-ups resulting from foreign currency translations and write-ups of tangible
assets of a going concern business made within 12 months after the acquisition
of such business) subsequent to the date of the Indenture in the book value of
any asset owned by such Person or a consolidated Subsidiary of such Person, (y)
all investments as of such date in unconsolidated Subsidiaries and in Persons
that are not Subsidiaries (except, in each case, Permitted Investments), and (z)
all unamortized debt discount and expense and unamortized deferred charges as of
such date, all of the foregoing determined in accordance with GAAP.
"Continuing Directors" means, as of any date of determination, any member
of the Board of Directors of the Company who (i) was a member of such Board of
Directors on the date of the Indenture or (ii) was nominated for election or
elected to such Board of Directors with the approval of a majority of the
Continuing Directors who were members of such Board at the time of such
nomination or election.
"Credit Agent" means the Bank of America, in its capacity as Administrative
Agent for the lenders party to the New Credit Facility, or any successor thereto
or any person otherwise appointed.
"Credit Facility" means that certain Credit Facility, dated as of July 11,
1997, as amended, by and among the Company and Bank of America, providing for up
to $220 million of revolving credit borrowings, including any related notes,
guarantees, collateral documents, instruments and agreements executed in
connection therewith, and in each case as amended, modified, renewed, refunded,
replaced or refinanced from time to time.
"Default" means any event that is or with the passage of time or the giving
of notice or both would be an Event of Default.
"Disqualified Stock" means any Capital Stock that, by its terms (or by the
terms of any security into which it is convertible or for which it is
exchangeable), or upon the happening of any event, matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or redeemable at
the option of the Holder thereof, in whole or in part, on or prior to the date
that is 91 days after the date on which the New Notes mature; provided, however,
that any Capital Stock that would not qualify as Disqualified Stock but for
change of control provisions shall not constitute Disqualified Stock if the
provisions are not more favorable to the holders of such Capital Stock than the
provisions described under "-- Change of Control" applicable to the holders of
the New Notes.
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"Equity Interests" means Capital Stock and all warrants, options or other
rights to acquire Capital Stock (but excluding any debt security that is
convertible into, or exchangeable for, Capital Stock).
"Existing Indebtedness" means Indebtedness of the Company and its
Subsidiaries (other than Indebtedness under the New Credit Facility) in
existence on the date of the Indenture, until such amounts are repaid.
"Fixed Charges" means, with respect to any Person for any period, the sum,
without duplication, of (i) the consolidated interest expense of such Person and
its Restricted Subsidiaries for such period, whether paid or accrued (including,
without limitation, original issue discount, non-cash interest payments, the
interest component of any deferred payment obligations, the interest component
of all payments associated with Capital Lease Obligations, commissions,
discounts and other fees and charges incurred in respect of letter of credit or
bankers' acceptance financings, and net payments (if any) pursuant to Hedging
Obligations), (ii) the consolidated interest expense of such Person and its
Restricted Subsidiaries that was capitalized during such period, (iii) any
interest expense on Indebtedness of another Person that is Guaranteed by such
Person or one of its Restricted Subsidiaries or secured by a Lien on assets of
such Person or one of its Restricted Subsidiaries (whether or not such Guarantee
or Lien is called upon) and (iv) the product of (a) all dividend payments,
whether or not in cash, on any series of preferred stock of such Person or any
of its Restricted Subsidiaries, other than dividend payments on Equity Interests
payable solely in Equity Interests of the Company, times (b) a fraction, the
numerator of which is one and the denominator of which is one minus the then
current combined federal, state and local statutory tax rate of such Person,
expressed as a decimal, in each case, on a consolidated basis and in accordance
with GAAP.
"Fixed Charge Coverage Ratio" means with respect to any Person for any
period, the ratio of the Consolidated Cash Flow of such Person and its
Restricted Subsidiaries for such period to the Fixed Charges of such Person and
its Restricted Subsidiaries for such period. In the event that the Company or
any of its Restricted Subsidiaries incurs, assumes, Guarantees or redeems any
Indebtedness (other than revolving credit borrowings) or issues preferred stock
subsequent to the commencement of the period for which the Fixed Charge Coverage
Ratio is being calculated but prior to the date on which the event for which the
calculation of the Fixed Charge Coverage Ratio is made (the "Calculation Date"),
then the Fixed Charge Coverage Ratio shall be calculated giving pro forma effect
to such incurrence, assumption, Guarantee or redemption of Indebtedness, or such
issuance or redemption of preferred stock, as if the same had occurred at the
beginning of the applicable four-quarter reference period. In addition, for
purposes of making the computation referred to above, (i) acquisitions that have
been made by the Company or any of its Restricted Subsidiaries, including
through mergers or consolidations and including any related financing
transactions, during the four-quarter reference period or subsequent to such
reference period and on or prior to the Calculation Date shall be deemed to have
occurred on the first day of the four-quarter reference period and Consolidated
Cash Flow for such reference period shall be calculated without giving effect to
clause (iii) of the proviso set forth in the definition of Consolidated Net
Income, (ii) the Consolidated Cash Flow attributable to discontinued operations,
as determined in accordance with GAAP, and operations or businesses disposed of
prior to the Calculation Date, shall be excluded, and (iii) the Fixed Charges
attributable to discontinued operations, as determined in accordance with GAAP,
and operations or businesses disposed of prior to the Calculation Date, shall be
excluded, but only to the extent that the obligations giving rise to such Fixed
Charges will not be obligations of the referent Person or any of its Restricted
Subsidiaries following the Calculation Date.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as have been approved by a significant segment of the accounting
profession, which are in effect on the date of the Indenture.
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"Government Securities" means direct obligations of, or obligations
guaranteed by, the United States of America for the payment of which guarantee
or obligations the full faith and credit of the United States is pledged.
"Guarantee" means a guarantee (other than by endorsement of negotiable
instruments for collection in the ordinary course of business), direct or
indirect, in any manner (including, without limitation, letters of credit and
reimbursement agreements in respect thereof), of all or any part of any
Indebtedness.
"Hedging Obligations" means, with respect to any Person, the obligations of
such Person under (i) interest rate swap agreements, interest rate cap
agreements and interest rate collar agreements and (ii) other agreements or
arrangements designed to protect such Person against fluctuations in interest
rates or currency rates.
"Indebtedness" means, with respect to any Person, any indebtedness of such
Person, whether or not contingent, in respect of borrowed money or evidenced by
bonds, notes, debentures or similar instruments or letters of credit (or
reimbursement agreements in respect thereof) or bankers' acceptances or
representing Capital Lease Obligations or the balance deferred and unpaid of the
purchase price of any property or representing any Hedging Obligations, except
any such balance that constitutes an accrued expense or trade payable, if and to
the extent any of the foregoing indebtedness (other than letters of credit and
Hedging Obligations) would appear as a liability upon a balance sheet of such
Person prepared in accordance with GAAP, as well as all indebtedness of others
secured by a Lien on any asset of such Person (whether or not such indebtedness
is assumed by such Person) and, to the extent not otherwise included, the
Guarantee by such Person of any indebtedness of any other Person. The amount of
any Indebtedness outstanding as of any date shall be (i) the accreted value
thereof, in the case of any Indebtedness that does not require current payments
of interest, and (ii) the principal amount thereof, together with any interest
thereon that is more than 30 days past due, in the case of any other
Indebtedness.
"Insolvency or Liquidation Proceedings" means (i) any insolvency or
bankruptcy case or proceeding, or any receivership, liquidation, reorganization
or other similar case or proceeding, relative to the Company or to the creditors
of the Company, as such, or to the assets of the Company, or (ii) any
liquidation, dissolution, reorganization or winding up of the Company, whether
voluntary or involuntary, and involving insolvency or bankruptcy, or (iii) any
assignment for the benefit of creditors or any other marshalling of assets and
liabilities of the Company.
"Investments" means, with respect to any Person, all investments by such
Person in other Persons (including Affiliates) in the forms of direct or
indirect loans (including guarantees of Indebtedness or other obligations),
advances or capital contributions (excluding commission, travel and similar
advances to officers and employees made in the ordinary course of business),
purchases or other acquisitions for consideration of Indebtedness, Equity
Interests or other securities, together with all items that are or would be
classified as investments on a balance sheet prepared in accordance with GAAP.
If the Company or any Restricted Subsidiary of the Company sells or otherwise
disposes of any Equity Interests of any direct or indirect Restricted Subsidiary
of the Company such that, after giving effect to any such sale or disposition,
such Person is no longer a Restricted Subsidiary of the Company, the Company
shall be deemed to have made an Investment on the date of any such sale or
disposition equal to the fair market value of the Equity Interests of such
Restricted Subsidiary not sold or disposed of in an amount determined as
provided in the final paragraph of the covenant described above under the
caption "-- Restricted Payments."
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset,
whether or not filed, recorded or otherwise perfected under applicable law
(including any conditional sale or other title retention agreement, any lease in
the nature thereof, any option or other agreement to sell or give a security
interest in and any filing of or agreement to give any financing statement under
the Uniform Commercial Code (or equivalent statutes) of any jurisdiction).
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"Net Income" means, with respect to any Person, the net income (loss) of
such Person, determined in accordance with GAAP and before any reduction in
respect of preferred stock dividends, excluding, however, (i) any gain (but not
loss), together with any related provision for taxes on such gain (but not
loss), realized in connection with (a) any Asset Sale (including, without
limitation, dispositions pursuant to sale and leaseback transactions) or (b) the
disposition of any securities by such Person or any of its Restricted
Subsidiaries or the extinguishment of any Indebtedness of such Person or any of
its Restricted Subsidiaries and (ii) any extraordinary or nonrecurring gain (but
not loss), together with any related provision for taxes on such extraordinary
or nonrecurring gain (but not loss).
"Net Proceeds" means the aggregate cash proceeds received by the Company or
any of its Restricted Subsidiaries in respect of any Asset Sale (including,
without limitation, any cash received upon the sale or other disposition of any
non-cash consideration received in any Asset Sale), net of the direct costs
relating to such Asset Sale (including, without limitation, legal, accounting
and investment banking fees, and sales commissions) and any relocation expenses
incurred as a result thereof, taxes paid or payable as a result thereof (after
taking into account any available tax credits or deductions and any tax sharing
arrangements), and any reserve for adjustment in respect of the sale price of
such asset or assets established in accordance with GAAP.
"Non-Recourse Debt" means Indebtedness (i) as to which neither the Company
nor any of its Restricted Subsidiaries (a) provides credit support of any kind
(including any undertaking, agreement or instrument that would constitute
Indebtedness), (b) is directly or indirectly liable (as a guarantor or
otherwise), or (c) constitutes the lender; (ii) no default with respect to which
(including any rights that the holders thereof may have to take enforcement
action against an Unrestricted Subsidiary) would permit (upon notice, lapse of
time or both) any holder of any other Indebtedness (other than the Senior Notes
being offered hereby) of the Company or any of its Restricted Subsidiaries to
declare a default on such other Indebtedness or cause the payment thereof to be
accelerated or payable prior to its stated maturity; and (iii) as to which the
lenders have been notified in writing that they will not have any recourse to
the stock or assets of the Company or any of its Restricted Subsidiaries.
"Obligations" means any principal, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable under
the documentation governing any Indebtedness.
"Permitted Business" means any of the businesses and any other businesses
related to the businesses engaged in by the Company and its respective
Restricted Subsidiaries on the date of the Indenture.
"Permitted Investments" means (a) any Investment in the Company or in a
Wholly Owned Restricted Subsidiary of the Company that is engaged in a Permitted
Business; (b) any Investment in Cash Equivalents; (c) any Investment by the
Company or any Restricted Subsidiary of the Company in a Person, if as a result
of such Investment (i) such Person becomes a Wholly Owned Restricted Subsidiary
of the Company that is engaged in a Permitted Business or (ii) such Person is
merged, consolidated or amalgamated with or into, or transfers or conveys
substantially all of its assets to, or is liquidated into, the Company or a
Wholly Owned Restricted Subsidiary of the Company that is engaged in a Permitted
Business; (d) any Restricted Investment made as a result of the receipt of
non-cash consideration from an Asset Sale that was made pursuant to and in
compliance with the covenant described above under the caption "-- Repurchase at
the Option of Holders -- Asset Sales"; (e) any acquisition of assets solely in
exchange for the issuance of Equity Interests (other than Disqualified Stock) of
the Company; (f) loans and advances made after the date of the Indenture to
Holberg Industries, Inc. not to exceed $10.0 million at any time outstanding;
(g) loans and advances made after the date of the Indenture to NEHC not to
exceed $10.0 million at any time outstanding; and (h) other Investments made
after the date of the Indenture in any Person having an aggregate fair market
value (measured on the date each such Investment was made and without giving
effect to subsequent changes in value), when taken together with all other
Investments made pursuant to this clause (h) that are at the time outstanding,
not to exceed $10.0 million.
"Permitted Liens" means (i) Liens securing Indebtedness under the Credit
Facility that was permitted by the terms of the Indenture to be incurred or
other Indebtedness allowed to be incurred under
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clause (ii) of the covenant described above under the caption "Incurrence of
Indebtedness and Issuance of Preferred Stock"; (ii) Liens in favor of the
Company; (iii) Liens on property of a Person existing at the time such Person is
merged into or consolidated with the Company or any Restricted Subsidiary of the
Company, provided that such Liens were in existence prior to the contemplation
of such merger or consolidation and do not extend to any assets other than those
of the Person merged into or consolidated with the Company; (iv) Liens on
property existing at the time of acquisition thereof by the Company or any
Restricted Subsidiary of the Company, provided that such Liens were in existence
prior to the contemplation of such acquisition; (v) Liens to secure the
performance of statutory obligations, surety or appeal bonds, performance bonds
or other obligations of a like nature incurred in the ordinary course of
business; (vi) Liens existing on the date of the Indenture; (vii) Liens for
taxes, assessments or governmental charges or claims that are not yet delinquent
or that are being contested in good faith by appropriate proceedings promptly
instituted and diligently concluded, provided that any reserve or other
appropriate provision as shall be required in conformity with GAAP shall have
been made therefor; (viii) Liens incurred in the ordinary course of business of
the Company or any Restricted Subsidiary of the Company with respect to
obligations that do not exceed $5.0 million at any one time outstanding and that
(a) are not incurred in connection with the borrowing of money or the obtaining
of advances or credit (other than trade credit in the ordinary course of
business) and (b) do not in the aggregate materially detract from the value of
the property or materially impair the use thereof in the operation of business
by the Company or such Restricted Subsidiary, and (ix) Liens on assets of
Unrestricted Subsidiaries that (A) secure Non-Recourse Debt of Unrestricted
Subsidiaries or (B) are incurred in connection with a Receivables Transaction.
"Permitted Refinancing Indebtedness" means any Indebtedness of the Company
or any of its Restricted Subsidiaries issued in exchange for, or the net
proceeds of which are used to extend, refinance, renew, replace, defease or
refund other Indebtedness of the Company or any of its Restricted Subsidiaries;
provided that: (i) except for Indebtedness used to extend, refinance, renew,
replace, defease or refund the Credit Facility, the principal amount (or
accreted value, if applicable) of such Permitted Refinancing Indebtedness does
not exceed the principal amount of (or accreted value, if applicable), plus
accrued interest on, the Indebtedness so extended, refinanced, renewed,
replaced, defeased or refunded (plus the amount of reasonable expenses incurred
in connection therewith); (ii) such Permitted Refinancing Indebtedness has a
final maturity date later than the final maturity date of, and has a Weighted
Average Life to Maturity equal to or greater than the Weighted Average Life to
Maturity of, the Indebtedness being extended, refinanced, renewed, replaced,
defeased or refunded; (iii) if the Indebtedness being extended, refinanced,
renewed, replaced, defeased or refunded is subordinated in right of payment to
the Senior Notes, such Permitted Refinancing Indebtedness has a final maturity
date later than the final maturity date of, and is subordinated in right of
payment to, the Senior Notes on terms at least as favorable to the holders of
Senior Notes as those contained in the documentation governing the Indebtedness
being extended, refinanced, renewed, replaced, defeased or refunded; and (iv)
such Indebtedness is incurred either by the Company or by the Restricted
Subsidiary who is the obligor on the Indebtedness being extended, refinanced,
renewed, replaced, defeased or refunded.
"Principals" means Holberg Industries, Inc., John V. Holten, Orkla, ASA,
Nebco Evans Distributors, Inc., NEHC, DLJ Merchant Banking, L.P., DLJ
International Partners, C.V., DLJ Offshore Partners, C.V., DLJ Merchant Banking
Funding, Inc., DLJ Merchant Banking Partners II, L.P., DLJ Merchant Banking
Partners II-A, L.P., DLJ Offshore Partners II, C.V., DLJ Diversified Partners,
L.P., DLJ Diversified Partners-A, L.P., DLJ Millennium Partners, L.P., DLJ
Millennium Partners-A, L.P., DLJMB Funding II, Inc., DLJ First ESC LLC, DLJ EAB
Partners, L.P. and UK Investment Plan 1997 Partners.
"Public Equity Offering" means a public offering of Equity Interests (other
than Disqualified Stock) of (i) the Company; or (ii) NEHC to the extent the net
proceeds thereof are contributed to the Company as a capital contribution, that,
in each case, results in the net proceeds to the Company of at least $25.0
million.
"Receivables" means, with respect to any Person or entity, all of the
following property and interests in property of such Person or entity, whether
now existing or existing in the future or hereafter acquired or
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arising: (i) accounts, (ii) accounts receivable incurred in the ordinary course
of business, including, without limitation, all rights to payment created by or
arising from sales of goods, leases of goods or the rendition of services, no
matter how evidenced, whether or not earned by performance, (iii) all rights to
any goods or merchandise represented by any of the foregoing after creation of
the foregoing, including, without limitation, returned or repossessed goods,
(iv) all reserves and credit balances with respect to any such accounts
receivable or account debtors, (v) all letters of credit, security or guarantees
for any of the foregoing, (vi) all insurance policies or reports relating to any
of the foregoing, (vii) all collection or deposit accounts relating to any of
the foregoing, (viii) all proceeds of the foregoing and (ix) all books and
records relating to any of the foregoing.
"Receivables Subsidiary" means an Unrestricted Subsidiary exclusively
engaged in Receivables Transactions and activities related thereto; provided,
however, that (i) at no time shall the Company and its Subsidiaries have more
than one Receivables Subsidiary and (ii) all Indebtedness or other borrowings of
such Unrestricted Subsidiary shall be Non-Recourse Debt.
"Receivables Transaction" means (i) the sale or other disposition to a
third party of Receivables or an interest therein, or (ii) the sale or other
disposition of Receivables or an interest therein to a Receivables Subsidiary
followed by a financing transaction in connection with such sale or disposition
of such Receivables (whether such financing transaction is effected by such
Receivables Subsidiary or by a third party to whom such Receivables Subsidiary
sells such Receivables or interests therein); provided that in each of the
foregoing, the Company or its Subsidiaries receive at least 80% of the aggregate
principal amount of any Receivables financed in such transaction.
"Regulation S" means Regulation S promulgated under the Securities Act.
"Regulation S Global Notes" means the Regulation S Temporary Global Notes
or the Regulation S Permanent Global Notes as applicable.
"Regulation S Permanent Global Notes" means the permanent global notes that
are deposited with and registered in the name of the Depository or its nominee,
representing a series of Notes sold in reliance on Regulation S.
"Regulation S Temporary Global Notes" means the temporary global notes that
are deposited with and registered in the name of the Depositary or its nominee,
representing a series of Notes sold in reliance on Regulation S.
"Related Party" with respect to any Principal means (A) any controlling
stockholder, 80% (or more) owned Subsidiary, or spouse or immediate family
member (in the case of an individual) of such Principal or (B) any trust,
corporation, partnership or other entity, the beneficiaries, stockholders,
partners, owners or Persons beneficially holding an 80% or more controlling
interest of which consist of such Principal and/or such other Persons referred
to in the immediately preceding clause (A).
"Reorganization Securities" means securities distributed to the holders of
the Senior Notes in an Insolvency or Liquidation Proceeding pursuant to a plan
of reorganization consented to by each class of the Senior Debt, but only if all
of the terms and conditions of such securities (including, without limitation,
term, tenor, interest, amortization, subordination, standstills, covenants and
defaults) are at least as favorable (and provide the same relative benefits) to
the holders of Senior Debt and to the holders of any security distributed in
such Insolvency or Liquidation Proceeding on account of any such Senior Debt as
the terms and conditions of the New Notes and the Indenture are, and provide to
the holders of Senior Debt.
"Representative" means the Trustee, agent or representative for any Senior
Debt.
"Restricted Investment" means an Investment other than a Permitted
Investment.
"Restricted Subsidiary" of a Person means any Subsidiary of the referent
Person that is not an Unrestricted Subsidiary.
"Rule 144A" means Rule 144A promulgated under the Securities Act.
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"Rule 144A Global Note" means a permanent global note that is deposited
with and registered in the name of the Depository or its nominee, representing a
series of Notes sold in reliance on Rule 144A.
"Stated Maturity" means, with respect to any installment of interest or
principal on any series of Indebtedness, the date on which such payment of
interest or principal was scheduled to be paid in the original documentation
governing such Indebtedness, and shall not include any contingent obligations to
repay, redeem or repurchase any such interest or principal prior to the date
originally scheduled for the payment thereof.
"Subsidiary" means, with respect to any Person, (i) any corporation,
association or other business entity of which more than 50% of the total voting
power of shares of Capital Stock entitled (without regard to the occurrence of
any contingency) to vote in the election of directors, managers or trustees
thereof is at the time owned or controlled, directly or indirectly, by such
Person or one or more of the other Subsidiaries of that Person (or a combination
thereof) and (ii) any partnership (a) the sole general partner or the managing
general partner of which is such Person or a Subsidiary of such Person or (b)
the only general partners of which are such Person or of one or more
Subsidiaries of such Person (or any combination thereof).
"Subsidiary Guarantors" means all direct and indirect Restricted
Subsidiaries of the Company.
"Unrestricted Subsidiary" means (i) any Subsidiary that is designated by
the Board of Directors as an Unrestricted Subsidiary pursuant to a Board
Resolution; but only to the extent that such Subsidiary: (a) has no Indebtedness
other than Non-Recourse Debt; (b) is not party to any agreement, contract,
arrangement or understanding with the Company or any Restricted Subsidiary of
the Company unless the terms of any such agreement, contract, arrangement or
understanding are no less favorable to the Company or such Restricted Subsidiary
than those that might be obtained at the time from Persons who are not
Affiliates of the Company; (c) is a Person with respect to which neither the
Company nor any of its Restricted Subsidiaries has any direct or indirect
obligation (x) to subscribe for additional Equity Interests or (y) to maintain
or preserve such Person's financial condition or to cause such Person to achieve
any specified levels of operating results; (d) has not guaranteed or otherwise
directly or indirectly provided credit support for any Indebtedness of the
Company or any of its Restricted Subsidiaries; and (e) has at least one director
on its board of directors that is not a director or executive officer of the
Company or any of its Restricted Subsidiaries and has at least one executive
officer that is not a director or executive officer of the Company or any of its
Restricted Subsidiaries. Any such designation by the Board of Directors shall be
evidenced to the Trustee by filing with the Trustee a certified copy of the
Board Resolution giving effect to such designation and an Officers' Certificate
certifying that such designation complied with the foregoing conditions and was
permitted by the covenant described above under the caption "Certain
Covenants -- Restricted Payments." If, at any time, any Unrestricted Subsidiary
would fail to meet the foregoing requirements as an Unrestricted Subsidiary, it
shall thereafter cease to be an Unrestricted Subsidiary for purposes of the
Indenture and any Indebtedness of such Subsidiary shall be deemed to be incurred
by a Restricted Subsidiary of the Company as of such date (and, if such
Indebtedness is not permitted to be incurred as of such date under the covenant
described under the caption "Incurrence of Indebtedness and Issuance of
Preferred Stock," the Company shall be in default of such covenant). The Board
of Directors of the Company may at any time designate any Unrestricted
Subsidiary to be a Restricted Subsidiary; provided that such designation shall
be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of the
Company of any outstanding Indebtedness of such Unrestricted Subsidiary and such
designation shall be permitted only if (i) such Indebtedness is permitted under
the covenant described under the caption "Certain Covenants -- Incurrence of
Indebtedness and Issuance of Preferred Stock," and (ii) no Default or Event of
Default would be in existence following such designation.
"Voting Stock" of any Person as of any date means the Capital Stock of such
Person that is at the time entitled to vote in the election of the Board of
Directors of such Person.
"Weighted Average Life to Maturity" means, when applied to any Indebtedness
at any date, the number of years obtained by dividing (i) the sum of the
products obtained by multiplying (a) the amount
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of each then remaining installment, sinking fund, serial maturity or other
required payments of principal, including payment at final maturity, in respect
thereof, by (b) the number of years (calculated to the nearest one-twelfth) that
will elapse between such date and the making of such payment, by (ii) the then
outstanding principal amount of such Indebtedness.
"Wholly Owned Subsidiary" of any Person means a Subsidiary of such Person
all of the outstanding Capital Stock or other ownership interests of which
(other than directors' qualifying shares) shall at the time be owned by such
Person or by one or more Wholly Owned Subsidiaries of such Person and one or
more Wholly Owned Subsidiaries of such Person.
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SENIOR SUBORDINATED NOTES
GENERAL
The Senior Subordinated Notes were issued pursuant to the Senior
Subordinated Note Indenture among the Company, the direct or indirect domestic
Restricted Subsidiaries of the Company (together, the Subsidiary Guarantors),
and Senior Subordinated Note Trustee. The terms of the Senior Subordinated Notes
include those stated in the Senior Subordinated Note Indenture and those made
part of the Senior Subordinated Note Indenture by reference to the Trust
Indenture Act. The Senior Subordinated Notes are subject to all such terms, and
holders of Senior Subordinated Notes are referred to the Senior Subordinated
Note Indenture and the Trust Indenture Act for a statement thereof. The
following summary of the material provisions of the Senior Subordinated Note
Indenture does not purport to be complete and is qualified in its entirety by
reference to the Senior Subordinated Note Indenture, including the definitions
therein of certain terms used below. Copies of the Senior Subordinated Note
Indenture are available as set forth below under "-- Additional Information."
The definitions of certain terms used in the following summary are set forth
below under "-- Certain Definitions."
The Senior Subordinated Notes are general unsecured obligations of the
Company, subordinated in right of payment to all existing and future Senior Debt
of the Company, including Indebtedness pursuant to the Credit Facility. The
Company's obligations under the Senior Subordinated Notes are fully and
unconditionally guaranteed (the Senior Subordinated Note Guarantees) on a senior
subordinated basis by, and are joint and several obligations of, the Subsidiary
Guarantors. See "-- Senior Subordinated Note Guarantees." As of December 26,
1998 the Company had approximately $410.7 million of Senior Debt. The Senior
Subordinated Note Indenture permits the incurrence of additional Senior Debt,
pari passu Indebtedness and subordinated Indebtedness in the future.
The operations of the Company are conducted in part through its
Subsidiaries, and the Company may, therefore, be dependent upon the cash flow of
its Subsidiaries to meet its debt obligations, including its obligations under
the Senior Subordinated Notes. All of the existing domestic Restricted
Subsidiaries of the Company are, and all future domestic Restricted Subsidiaries
are expected to be, Subsidiary Guarantors. As of the date of the Senior
Subordinated Note Indenture, all of the Company's Subsidiaries, except for the
Receivables Subsidiary, are Restricted Subsidiaries. However, under certain
circumstances, the Company will be able to designate current or future
Subsidiaries as Unrestricted Subsidiaries. Unrestricted Subsidiaries will not be
subject to many of the restrictive covenants set forth in the Senior
Subordinated Note Indenture.
PRINCIPAL, MATURITY AND INTEREST
The Senior Subordinated Notes are limited in aggregate principal amount to
$500.0 million and will mature on July 15, 2007. Interest on the Senior
Subordinated Notes accrues at the rate of 10 1/8% per annum and is payable
semi-annually in arrears on July 15 and January 15 of each year, commencing as
of January 15, 1998, to holders of record on the immediately preceding July 1
and January 1. Interest on the Senior Subordinated Notes accrues from the most
recent date to which interest has been paid or, if no interest has been paid,
from July 11, 1997. Interest is computed on the basis of a 360-day year
comprised of twelve 30-day months. Principal, premium and Liquidated Damages, if
any, and interest on the Senior Subordinated Notes are payable at the office or
agency of the Company maintained for such purpose within the City and State of
New York or, at the option of the Company, payment of interest and liquidated
damages, if any, may be made by check mailed to the holders of the Senior
Subordinated Notes at their respective addresses set forth in the register of
holders of Senior Subordinated Notes; provided that all payments of principal,
premium and Liquidated Damages, if any, and interest with respect to Senior
Subordinated Notes the holders of which have given wire transfer instructions to
the Company are required to be made by wire transfer of immediately available
funds to the accounts specified by the holders thereof. Until otherwise
designated by the Company, the Company's office or agency in New York is the
office of the Senior Subordinated Note Trustee maintained for such purpose. The
Senior Subordinated Notes are issued in denominations of $1,000 and integral
multiples thereof.
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SUBORDINATION
The payment of principal of, premium and liquidated damages, if any, and
interest on the Senior Subordinated Notes is subordinated in right of payment,
as set forth in the Senior Subordinated Note Indenture, to the prior payment in
full of all Senior Debt, whether outstanding on the date of the Senior
Subordinated Note Indenture or thereafter created, incurred or assumed and all
permissible renewals, extensions, refundings or refinancings thereof.
The Senior Subordinated Note Indenture provides that, upon any payment or
distribution of assets of the Company of any kind or character, whether in cash,
property or securities, to creditors in any Insolvency or Liquidation Proceeding
with respect to the Company all amounts due or to become due under or with
respect to all Senior Debt will first be paid in full in cash before any payment
is made on account of the Senior Subordinated Notes, except that the holders of
Senior Subordinated Notes may receive Reorganization Securities. Upon any such
Insolvency or Liquidation Proceeding, any payment or distribution of assets of
the Company of any kind or character, whether in cash, property or securities
(other than Reorganization Securities), to which the holders of the Senior
Subordinated Notes or the Senior Subordinated Note Trustee would be entitled
will be paid by the Company or by any receiver, trustee in bankruptcy,
liquidating trustee, agent or other person making such payment or distribution,
or by the holders of the Senior Subordinated Notes or by the Senior Subordinated
Note Trustee if received by them, directly to the holders of Senior Debt (pro
rata to such holders on the basis of the amounts of Senior Debt held by such
holders) or their Representative or Representatives, as their interests may
appear, for application to the payment of the Senior Debt remaining unpaid until
all such Senior Debt has been paid in full in cash, after giving effect to any
concurrent payment, distribution or provision therefor to or for the holders of
Senior Debt.
The Senior Subordinated Note Indenture provides that (a) in the event of
and during the continuation of any default in the payment of principal of,
interest or premium, if any, on any Senior Debt, or any Obligation owing from
time to time under or in respect of Senior Debt, or in the event that any event
of default (other than a payment default) with respect to any Senior Debt will
have occurred and be continuing and will have resulted in such Senior Debt
becoming or being declared due and payable prior to the date on which it would
otherwise have become due and payable, or (b) if any event of default other than
as described in clause (a) above with respect to any Designated Senior Debt will
have occurred and be continuing permitting the holders of such Designated Senior
Debt (or their Representative or Representatives) to declare such Designated
Senior Debt due and payable prior to the date on which it would otherwise have
become due and payable, then no payment will be made by or on behalf of the
Company on account of the Senior Subordinated Notes (other than payments in the
form of Reorganization Securities) (x) in case of any payment or nonpayment
default specified in (a), unless and until such default will have been cured or
waived in writing in accordance with the instruments governing such Senior Debt
or such acceleration will have been rescinded or annulled, or (y) in case of any
nonpayment event of default specified in (b), during the period (a "Payment
Blockage Period") commencing on the date the Company or the Senior Subordinated
Note Trustee receives written notice (a "Payment Notice") of such event of
default (which notice will be binding on the Senior Subordinated Note Trustee
and the holders of Senior Subordinated Notes as to the occurrence of such a
payment default or nonpayment event of default) from the Credit Agent (or other
holders of Designated Senior Debt or their Representative or Representatives)
and ending on the earliest of (A) 179 days after such date, (B) the date, if
any, on which such Designated Senior Debt to which such default relates is paid
in full in cash or such default is cured or waived in writing in accordance with
the instruments governing such Designated Senior Debt by the holders of such
Designated Senior Debt and (C) the date on which the Senior Subordinated Note
Trustee receives written notice from the Credit Agent (or other holders of
Designated Senior Debt or their Representative or Representatives), as the case
may be, terminating the Payment Blockage Period. During any consecutive 360-day
period, the aggregate of all Payment Blockage Periods shall not exceed 179 days
and there shall be a period of at least 181 consecutive days in each consecutive
360-day period when no Payment Blockage Period is in effect. No event of default
which existed or was continuing with respect to the Senior Debt for which notice
commencing a Payment
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Blockage Period was given on the date such Payment Blockage Period commenced
shall be or be made the basis for the commencement of any subsequent Payment
Blockage Period unless such event of default is cured or waived for a period of
not less than 90 consecutive days.
As a result of the subordination provisions described above, in the event
of the Company's liquidation, dissolution, bankruptcy, reorganization,
insolvency, receivership or similar proceeding or in an assignment for the
benefit of the creditors or a marshalling of the assets and liabilities of the
Company, holders of Senior Subordinated Notes may recover less ratably than
creditors of the Company who are holders of Senior Debt. See "Risk
Factors -- Subordination." The Senior Subordinated Note Indenture limits,
subject to certain financial tests, the amount of additional Indebtedness,
including Senior Debt, that the Company and its Restricted Subsidiaries can
incur. See "-- Certain Covenants -- Incurrence of Indebtedness and Issuance of
Preferred Stock."
SENIOR SUBORDINATED NOTE GUARANTEES
The Company's payment obligations under the Senior Subordinated Notes are
fully and unconditionally guaranteed by the Subsidiary Guarantors on a joint and
several basis. The Senior Subordinated Note Guarantees are subordinated to the
prior payment in full of all Senior Debt of each Subsidiary Guarantor (including
such Subsidiary Guarantor's guarantee of the Credit Facility, if any) to the
same extent that the Senior Subordinated Notes are subordinated to Senior Debt
of the Company. The obligations of any Subsidiary Guarantor under its Senior
Subordinated Note Guarantee are limited so as not to constitute a fraudulent
conveyance under applicable law.
The Senior Subordinated Note Indenture provides that no Subsidiary
Guarantor may consolidate with or merge with or into (whether or not such
Subsidiary Guarantor is the surviving Person), another corporation, Person or
entity whether or not affiliated with such Subsidiary Guarantor unless, subject
to the provisions of the following paragraph, (i) the Person formed by or
surviving any such consolidation or merger (if other than such Subsidiary
Guarantor) assumes all the obligations of such Subsidiary Guarantor pursuant to
a supplemental indenture in form and substance reasonably satisfactory to the
Senior Subordinated Note Trustee, under the Senior Subordinated Notes and the
Senior Subordinated Note Indenture; (ii) immediately after giving effect to such
transaction, no Default or Event of Default exists; (iii) such Subsidiary
Guarantor, or any Person formed by or surviving any such consolidation or
merger, would have Consolidated Net Worth (immediately after giving effect to
such transaction) equal to or greater than the Consolidated Net Worth of such
Subsidiary Guarantor immediately preceding the transaction; and (iv) the Company
would be permitted by virtue of its pro forma Fixed Charge Coverage Ratio,
immediately after giving effect to such transaction, to incur at least $1.00 of
additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set
forth in the covenant described below under the caption "-- Certain
Covenants -- Incurrence of Indebtedness and Issuance of Preferred Stock." The
requirements of clauses (iii) and (iv) of this paragraph will not apply in the
case of a consolidation with or merger with or into (a) the Company or another
Subsidiary Guarantor or (b) any other Person if the acquisition of all of the
Equity Interests in such Person would have complied with the provisions of the
covenants described below under the captions "-- Certain Covenants -- Restricted
Payments" and "-- Incurrence of Indebtedness and Issuance of Preferred Stock."
The Senior Subordinated Note Indenture provides that (a) in the event of a
sale or other disposition of all of the assets of any Subsidiary Guarantor, by
way of merger, consolidation or otherwise, or a sale or other disposition of all
of the capital stock of any Subsidiary Guarantor, or (b) in the event that the
Company designates a Subsidiary Guarantor to be an Unrestricted Subsidiary, or
such Subsidiary Guarantor ceases to be a Subsidiary of the Company, then such
Subsidiary Guarantor (in the event of a sale or other disposition, by way of
such a merger, consolidation or otherwise, of all of the capital stock of such
Subsidiary Guarantor or any such designation) or the entity acquiring the
property (in the event of a sale or other disposition of all of the assets of
such Subsidiary Guarantor) will be released and relieved of any obligations
under its Senior Subordinated Note Guarantee; provided that the Net Proceeds of
such sale or other disposition are applied in accordance with the applicable
provisions of the Senior Subordinated Note Indenture. See "-- Repurchase at the
Option of Holders." In the case of a sale,
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assignment, lease, transfer, conveyance or other disposition of all or
substantially all of the assets of a Subsidiary Guarantor, upon the assumption
provided for in clause (ii) of the covenant described under the caption
"-- Certain Covenants -- Merger, Consolidation, or Sale of Assets," such
Subsidiary Guarantor shall be discharged from all further liability and
obligation under the Senior Subordinated Note Indenture.
OPTIONAL REDEMPTION
The Senior Subordinated Notes are not redeemable at the Company's option
prior to July 15, 2002. Thereafter, the Senior Subordinated Notes will be
subject to redemption at any time at the option of the Company, in whole or in
part, upon not less than 30 nor more than 60 days' notice, at the redemption
prices (expressed as percentages of principal amount) set forth below plus
accrued and unpaid interest and Liquidated Damages thereon, if any, to the
applicable redemption date, if redeemed during the twelve-month period beginning
on July 15 of the years indicated below:
<TABLE>
<CAPTION>
YEAR PERCENTAGE
- ---- ----------
<S> <C>
2002........................................................ 105.063%
2003........................................................ 103.375%
2004........................................................ 101.688%
2005 and thereafter......................................... 100.000%
</TABLE>
Notwithstanding the foregoing, at any time prior to July 15, 2000, the
Company may redeem up to 33% of the original aggregate principal amount of
Senior Subordinated Notes at a redemption price of 110.125% of the principal
amount thereof, plus accrued and unpaid interest and Liquidated Damages thereon,
if any, to the redemption date, with the net cash proceeds of a Public Equity
Offering; provided that at least 67% of the original aggregate principal amount
of Senior Subordinated Notes remains outstanding immediately after the
occurrence of such redemption; and provided, further, that such redemption shall
occur within 45 days of the date of the closing of such Public Equity Offering.
SELECTION AND NOTICE
If less than all of the Senior Subordinated Notes are to be redeemed at any
time, selection of Senior Subordinated Notes for redemption will be made by the
Senior Subordinated Note Trustee in compliance with the requirements of the
principal national securities exchange, if any, on which the Senior Subordinated
Notes are listed, or, if the Senior Subordinated Notes are not so listed, on a
pro rata basis, by lot or by such method as the Senior Subordinated Note Trustee
shall deem fair and appropriate; provided that no Senior Subordinated Notes of
$1,000 or less shall be redeemed in part. Notices of redemption shall be mailed
by first class mail at least 30 but not more than 60 days before the redemption
date to each Holder of Senior Subordinated Notes to be redeemed at its
registered address. Notices of redemption may not be conditional. If any Senior
Subordinated Note is to be redeemed in part only, the notice of redemption that
relates to such Senior Subordinated Note shall state the portion of the
principal amount thereof to be redeemed. A new Senior Subordinated Note in
principal amount equal to the unredeemed portion thereof will be issued in the
name of the Holder thereof upon cancellation of the original Senior Subordinated
Note. Senior Subordinated Notes called for redemption become due on the date
fixed for redemption. On and after the redemption date, interest ceases to
accrue on Senior Subordinated Notes or portions of them called for redemption.
MANDATORY REDEMPTION
Except as set forth below under "-- Repurchase at the Option of Holders,"
the Company is not required to make mandatory redemption or sinking fund
payments with respect to the Senior Subordinated Notes.
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REPURCHASE AT THE OPTION OF HOLDERS
CHANGE OF CONTROL
Upon the occurrence of a Change of Control, each holder of Senior
Subordinated Notes has the right to require the Company to repurchase all or any
part (equal to $1,000 or an integral multiple thereof) of such holder's Senior
Subordinated Notes pursuant to the offer described below (the Change of Control
Offer) at an offer price in cash equal to 101% of the aggregate principal amount
thereof plus accrued and unpaid interest and Liquidated Damages thereon, if any,
to the date of purchase (the Change of Control Payment). Within 30 days
following any Change of Control, the Company will mail a notice to each Holder
describing the transaction or transactions that constitute the Change of Control
and offering to repurchase Senior Subordinated Notes on the date specified in
such notice, which date shall be no earlier than 30 days and no later than 60
days from the date such notice is mailed (the Change of Control Payment Date),
pursuant to the procedures required by the Senior Subordinated Note Indenture
and described in such notice. The Company will comply with the requirements of
Rule 14e-1 under the Exchange Act and any other securities laws and regulations
thereunder to the extent such laws and regulations are applicable in connection
with the repurchase of the Senior Subordinated Notes as a result of a Change of
Control.
On the Change of Control Payment Date, the Company will, to the extent
lawful, (1) accept for payment all Senior Subordinated Notes or portions thereof
properly tendered pursuant to the Change of Control Offer, (2) deposit with the
Paying Agent an amount equal to the Change of Control Payment in respect of all
Senior Subordinated Notes or portions thereof so tendered and (3) deliver or
cause to be delivered to the Senior Subordinated Note Trustee the Senior
Subordinated Notes so accepted together with an Officers' Certificate stating
the aggregate principal amount of Senior Subordinated Notes or portions thereof
being purchased by the Company. The Paying Agent will promptly mail to each
holder of Senior Subordinated Notes so tendered the Change of Control Payment
for such Senior Subordinated Notes, and the Senior Subordinated Note Trustee
will promptly authenticate and mail (or cause to be transferred by book entry)
to each holder a new Senior Subordinated Note equal in principal amount to any
unpurchased portion of the Senior Subordinated Notes surrendered, if any;
provided that each such new Senior Subordinated Note will be in a principal
amount of $1,000 or an integral multiple thereof. The Senior Subordinated Note
Indenture provides that, prior to complying with the provisions of this
covenant, but in any event within 90 days following a Change of Control, the
Company will either repay all outstanding Senior Debt or obtain the requisite
consents, if any, under all agreements governing outstanding Senior Debt to
permit the repurchase of Senior Subordinated Notes required by this covenant.
The Company will publicly announce the results of the Change of Control Offer
on, or as soon as practicable after, the Change of Control Payment Date.
The Change of Control provisions described above are applicable whether or
not any other provisions of the Senior Subordinated Note Indenture are
applicable. Except as described above with respect to a Change of Control, the
Senior Subordinated Note Indenture does not contain provisions that permit the
holders of the Senior Subordinated Notes to require that the Company repurchase
or redeem the Senior Subordinated Notes in the event of a takeover,
recapitalization or similar transaction.
The Credit Facility provides that certain change of control events with
respect to the Company would constitute a default thereunder. Any future credit
agreements or other agreements relating to Senior Debt to which the Company
becomes a party may contain similar restrictions and provisions. In the event a
Change of Control occurs at a time when the Company is prohibited from
purchasing Senior Subordinated Notes, the Company could seek the consent of its
lenders to purchase the Senior Subordinated Notes or could attempt to refinance
the borrowings that contain such prohibition. If the Company does not obtain
such consent or repay such borrowings, the Company will remain prohibited from
purchasing Senior Subordinated Notes. In such case, the Company's failure to
purchase tendered Senior Subordinated Notes would constitute an Event of Default
under the Senior Subordinated Note Indenture which would, in turn, constitute a
default under the Credit Facility. In such circumstances, the subordination
provisions in the
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Senior Subordinated Note Indenture would likely restrict payments to the holders
of Senior Subordinated Notes. See "Description of Indebtedness."
The Company will not be required to make a Change of Control Offer upon a
Change of Control if a third party makes the Change of Control Offer in the
manner, at the times and otherwise in compliance with the requirements set forth
in the Senior Subordinated Note Indenture applicable to a Change of Control
Offer made by the Company and purchases all Senior Subordinated Notes validly
tendered and not withdrawn under such Change of Control Offer.
The definition of Change of Control includes a phrase relating to the sale,
lease, transfer, conveyance or other disposition of "all or substantially all"
of the assets of the Company and its Subsidiaries taken as a whole. Although
there is a developing body of case law interpreting the phrase "substantially
all," there is no precise established definition of that phrase under applicable
law. Accordingly, the ability of a holder of Senior Subordinated Notes to
require the Company to repurchase such Senior Subordinated Notes as a result of
a sale, lease, transfer, conveyance or other disposition of less than all of the
assets of the Company and its Subsidiaries taken as a whole to another Person or
group may be uncertain.
ASSET SALES
The Senior Subordinated Note Indenture provides that the Company will not,
and will not permit any of its Restricted Subsidiaries to, consummate an Asset
Sale other than transfers of Receivables to a Receivables Subsidiary in
connection with a Receivables Transaction unless (i) the Company (or the
Restricted Subsidiary, as the case may be) receives consideration at the time of
such Asset Sale at least equal to the fair market value (evidenced by a
resolution of the Board of Directors set forth in an Officers' Certificate
delivered to the Senior Subordinated Note Trustee) of the assets or Equity
Interests issued or sold or otherwise disposed of and (ii) at least 80% of the
consideration therefor received by the Company or such Restricted Subsidiary is
in the form of cash; provided that the amount of (x) any liabilities (as shown
on the Company's or such Restricted Subsidiary's most recent balance sheet) of
the Company or any Restricted Subsidiary (other than contingent liabilities and
liabilities that are by their terms subordinated to the Senior Subordinated
Notes or any guarantee thereof) that are assumed by the transferee of any such
assets pursuant to a customary novation agreement that releases the Company or
such Restricted Subsidiary from further liability and (y) any securities, notes
or other obligations received by the Company or any such Restricted Subsidiary
from such transferee that are converted by the Company or such Restricted
Subsidiary into cash within 180 days (to the extent of the cash received), shall
be deemed to be cash for purposes of this provision.
Within 360 days after the receipt of any Net Proceeds from an Asset Sale,
the Company may apply such Net Proceeds, at its option, (a) to permanently repay
Senior Debt (and to correspondingly reduce commitments with respect thereto in
the case of revolving borrowings), or (b) to the acquisition of a controlling
interest in another business, the making of a capital expenditure or the
acquisition of other long-term assets, in each case, in a Permitted Business.
Pending the final application of any such Net Proceeds, the Company may
temporarily reduce the revolving Indebtedness under the Credit Facility or
otherwise invest such Net Proceeds in any manner that is not prohibited by the
Senior Subordinated Note Indenture. Any Net Proceeds from Asset Sales that are
not applied or invested as provided in the first sentence of this paragraph will
be deemed to constitute Excess Proceeds. When the aggregate amount of Excess
Proceeds exceeds $15.0 million, the Company will be required to make an offer to
all holders of Senior Subordinated Notes (an Asset Sale Offer) to purchase the
maximum principal amount of Senior Subordinated Notes that may be purchased out
of the Excess Proceeds, at an offer price in cash in an amount equal to 100% of
the principal amount thereof plus accrued and unpaid interest and Liquidated
Damages thereon, if any, to the date of purchase, in accordance with the
procedures set forth in the Senior Subordinated Note Indenture. To the extent
that the aggregate amount of Senior Subordinated Notes tendered pursuant to an
Asset Sale Offer is less than the Excess Proceeds, the Company may use any
remaining Excess Proceeds for general corporate purposes. If the aggregate
principal amount of Senior Subordinated Notes surrendered by holders thereof
exceeds the amount of Excess Proceeds, the Senior
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Subordinated Note Trustee shall select the Senior Subordinated Notes to be
purchased on a pro rata basis. Upon completion of such offer to purchase, the
amount of Excess Proceeds shall be reset at zero.
CERTAIN COVENANTS
RESTRICTED PAYMENTS
The Senior Subordinated Note Indenture provides that from and after the
date of the Senior Subordinated Note Indenture the Company will not, and will
not permit any of its Restricted Subsidiaries to, directly or indirectly: (i)
declare or pay any dividend or make any other payment or distribution on account
of the Company's or any of its Restricted Subsidiaries' Equity Interests
(including, without limitation, any payment in connection with any merger or
consolidation involving the Company) or to the direct or indirect holders of the
Company's or any of its Restricted Subsidiaries' Equity Interests in their
capacity as such (other than dividends or distributions payable in Equity
Interests (other than Disqualified Stock) of the Company); (ii) purchase, redeem
or otherwise acquire or retire for value (including without limitation, in
connection with any merger or consolidation involving the Company) any Equity
Interests of the Company or any direct or indirect parent of the Company; (iii)
make any payment on or with respect to, or purchase, redeem, defease or
otherwise acquire or retire for value any Indebtedness that is pari passu with
or subordinated to the Senior Subordinated Notes (other than the Notes), except
a payment of interest or principal at Stated Maturity; or (iv) make any
Restricted Investment (all such payments and other actions set forth in clauses
(i) through (iv) above being collectively referred to as Restricted Payments),
unless, at the time of and after giving effect to such Restricted Payment:
(a) no Default or Event of Default shall have occurred and be
continuing or would occur as a consequence thereof; and
(b) the Company would, at the time of such Restricted Payment and
after giving pro forma effect thereto as if such Restricted Payment had
been made at the beginning of the applicable four-quarter period, have been
permitted to incur at least $1.00 of additional Indebtedness pursuant to
the Fixed Charge Coverage Ratio test set forth in the first paragraph of
the covenant described below under caption "-- Incurrence of Indebtedness
and Issuance of Preferred Stock"; and
(c) such Restricted Payment, together with the aggregate amount of all
other Restricted Payments made by the Company and its Subsidiaries after
the date of the Senior Subordinated Note Indenture (excluding Restricted
Payments permitted by clause (ii) of the next succeeding paragraph), is
less than the sum of (i) 50% of the Consolidated Net Income of the Company
for the period (taken as one accounting period) from the beginning of the
first fiscal quarter commencing after the date of the Senior Subordinated
Note Indenture to the end of the Company's most recently ended fiscal
quarter for which internal financial statements are available at the time
of such Restricted Payment (or, if such Consolidated Net Income for such
period is a deficit, less 100% of such deficit), plus (ii) 100% of the
aggregate net cash proceeds received by the Company from the issue or sale
since the date of the Senior Subordinated Note Indenture of Equity
Interests of the Company (other than Disqualified Stock) or of Disqualified
Stock or debt securities of the Company that have been converted into such
Equity Interests (other than Equity Interests (or Disqualified Stock or
convertible debt securities) sold to a Subsidiary of the Company and other
than Disqualified Stock or convertible debt securities that have been
converted into Disqualified Stock), plus (iii) to the extent that any
Restricted Investment that was made after the date of the Senior
Subordinated Note Indenture is sold for cash or otherwise liquidated or
repaid for cash, the lesser of (A) the cash return of capital with respect
to such Restricted Investment (less the cost of disposition, if any) and
(B) the initial amount of such Restricted Investment, plus (iv) if any
Unrestricted Subsidiary (A) is redesignated as a Restricted Subsidiary, the
fair market value of such redesignated Subsidiary (as determined in good
faith by the Board of Directors) as of the date of its redesignation or (B)
pays any cash dividends or cash distributions to the Company or any of its
Restricted Subsidiaries, 50% of any such cash dividends or cash
distributions made after the date of the Senior Subordinated Note
Indenture.
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The foregoing provisions will not prohibit (i) the payment of any dividend
within 60 days after the date of declaration thereof, if at said date of
declaration such payment would have complied with the provisions of the Senior
Subordinated Note Indenture; (ii) the redemption, repurchase, retirement,
defeasance or other acquisition of any pari passu or subordinated Indebtedness
or Equity Interests of the Company in exchange for, or out of the net cash
proceeds of the substantially concurrent sale or issuance (other than to a
Restricted Subsidiary of the Company) of, other Equity Interests of the Company
(other than any Disqualified Stock); provided that the amount of any such net
cash proceeds that are utilized for any such redemption, repurchase, retirement,
defeasance or other acquisition shall be excluded from clause (c)(ii) of the
preceding paragraph; (iii) the defeasance, redemption, repurchase or other
acquisition of pari passu or subordinated Indebtedness with the net cash
proceeds from an incurrence of Permitted Refinancing Indebtedness; (iv) the
payment of any dividend by a Restricted Subsidiary of the Company to the holders
of its Equity Interests on a pro rata basis; (v) the declaration or payment of
dividends to NEHC for expenses incurred by NEHC or Holberg in its capacity as a
holding company that are attributable to the operations of the Company and its
Restricted Subsidiaries, including, without limitation, (a) customary salary,
bonus and other benefits payable to officers and employees of NEHC or Holberg,
(b) fees and expenses paid to members of the Board of Directors of NEHC or
Holberg, (c) general corporate overhead expenses of NEHC or Holberg, (d)
foreign, federal, state or local tax liabilities paid by NEHC or Holberg, (e)
management, consulting or advisory fees paid to Holberg not to exceed $4.0
million in any fiscal year, and (f) the repurchase, redemption or other
acquisition or retirement for value of any Equity Interests of NEHC or Holberg
held by any member of NEHC's or the Company's (or any of their Restricted
Subsidiaries') management pursuant to any management equity subscription
agreement or stock option agreement in effect as of the date of the Senior
Subordinated Note Indenture; provided, however, the aggregate amount paid
pursuant to the foregoing clauses (a) through (f) does not exceed $7.0 million
in any fiscal year; (vi) Investments in any Person (other than the Company or a
Wholly-Owned Restricted Subsidiary) engaged in a Permitted Business in an amount
not to exceed $5.0 million; (vii) other Investments in Unrestricted Subsidiaries
having an aggregate fair market value, taken together with all other Investments
made pursuant to this clause (vii) that are at that time outstanding, not to
exceed $2.0 million; (viii) Permitted Investments; (ix) payments to NEHC or
Holberg pursuant to the tax sharing agreement among Holberg and other members of
the affiliated corporations of which Holberg is the common parent; or (x) other
Restricted Payments in an aggregate amount not to exceed $10.0 million.
The Board of Directors may designate any Restricted Subsidiary to be an
Unrestricted Subsidiary if such designation would not cause a Default; provided
that in no event shall the business currently operated by any Subsidiary
Guarantor be transferred to or held by an Unrestricted Subsidiary. For purposes
of making such determination, all outstanding Investments by the Company and its
Restricted Subsidiaries (except to the extent repaid in cash) in the Subsidiary
so designated will be deemed to be Restricted Payments at the time of such
designation and will reduce the amount available for Restricted Payments under
the first paragraph of this covenant. All such outstanding Investments are
deemed to constitute Investments in an amount equal to the fair market value of
such Investments at the time of such designation (as determined in good faith by
the Board of Directors). Such designation is only permitted if such Restricted
Payment would be permitted at such time and if such Restricted Subsidiary
otherwise meets the definition of an Unrestricted Subsidiary.
The amount of all Restricted Payments (other than cash) shall be the fair
market value on the date of the Restricted Payment of the asset(s) or securities
proposed to be transferred or issued by the Company or such Subsidiary, as the
case may be, pursuant to the Restricted Payment. The fair market value of any
non-cash Restricted Payment shall be determined in good faith by the Board of
Directors whose resolution with respect thereto shall be delivered to the Senior
Subordinated Note Trustee; such determination will be based upon an opinion or
appraisal issued by an accounting, appraisal or investment banking firm of
national standing if such fair market value exceeds $10.0 million. Not later
than the date of making any Restricted Payment, the Company shall deliver to the
Senior Subordinated Note Trustee an Officers' Certificate stating that such
Restricted Payment is permitted and setting forth the basis upon which the
calculations required by the covenant "-- Restricted Payments" were computed,
together with a copy of any fairness opinion or appraisal required by the Senior
Subordinated Note Indenture.
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INCURRENCE OF INDEBTEDNESS AND ISSUANCE OF PREFERRED STOCK
The Senior Subordinated Note Indenture provides that the Company will not,
and will not permit any of its Subsidiaries to, directly or indirectly, create,
incur, issue, assume, guarantee or otherwise become directly or indirectly
liable, contingently or otherwise, with respect to (collectively, incur) any
Indebtedness (including Acquired Debt) and that the Company will not issue any
Disqualified Stock and will not permit any of its Subsidiaries to issue any
shares of preferred stock; provided, however, that the Company may incur
Indebtedness (including Acquired Debt) or issue shares of Disqualified Stock if
the Fixed Charge Coverage Ratio for the Company's most recently ended four full
fiscal quarters for which internal financial statements are available
immediately preceding the date on which such additional Indebtedness is incurred
or such Disqualified Stock is issued would have been at least 2.0 to 1.0,
determined on a pro forma basis (including a pro forma application of the net
proceeds therefrom), as if the additional Indebtedness had been incurred, or the
Disqualified Stock had been issued, as the case may be, at the beginning of such
four-quarter period.
The provisions of the first paragraph of this covenant will not apply to
the incurrence of any of the following items of Indebtedness (collectively,
"Permitted Debt"):
(i) the incurrence by the Company of term Indebtedness under the
Credit Facility; provided that the aggregate principal amount of all term
Indebtedness outstanding under the Credit Facility after giving effect to
such incurrence does not exceed the aggregate amount of term Indebtedness
borrowed under the Credit Facility on July 11, 1997 less the aggregate
amount of all repayments, optional or mandatory, of the principal of any
term Indebtedness under the Credit Facility (other than repayments that are
immediately reborrowed) that have been made since July 11, 1997; provided
that the foregoing proviso shall not limit the principal amount of
Permitted Refinancing Indebtedness that may be incurred to refund,
refinance or replace any Indebtedness incurred pursuant to this clause (i);
(ii) the incurrence by the Company of revolving Indebtedness and
letters of credit pursuant to the Credit Facility; provided that the
aggregate principal amount of all revolving Indebtedness (with letters of
credit being deemed to have a principal amount equal to the maximum
potential liability of the Company thereunder) outstanding under the Credit
Facility after giving effect to such incurrence does not exceed $150.0
million; provided that the foregoing proviso shall not limit the principal
amount of Permitted Refinancing Indebtedness that may be incurred to
refinance or replace any Indebtedness incurred pursuant to this clause
(ii);
(iii) the incurrence by the Company and its Restricted Subsidiaries of
the Existing Indebtedness;
(iv) the incurrence by the Company and the Subsidiary Guarantors of
Indebtedness represented by the Senior Subordinated Notes and the Senior
Subordinated Note Guarantees, respectively;
(v) the incurrence by the Company or any of its Restricted
Subsidiaries of Indebtedness represented by Capital Lease Obligations,
mortgage financings or purchase money obligations, in each case incurred
for the purpose of financing all or any part of the purchase price or cost
of construction or improvement of property, plant or equipment used in the
business of the Company or such Restricted Subsidiary (whether through the
direct purchase of assets or the Capital Stock of any Person owning such
Assets), in an aggregate principal amount not to exceed $125.0 million;
(vi) the incurrence by the Company or any of its Restricted
Subsidiaries of Indebtedness in connection with the acquisition of assets
or a new Restricted Subsidiary; provided that such Indebtedness was
incurred by the prior owner of such assets or such Restricted Subsidiary
prior to such acquisition by the Company or one of its Subsidiaries and was
not incurred in connection with, or in contemplation of, such acquisition
by the Company or one of its Subsidiaries; provided further that the
principal amount (or accreted value, as applicable) of such Indebtedness,
together with any other outstanding Indebtedness incurred pursuant to this
clause (vi), does not exceed $5.0 million;
(vii) the incurrence by the Company or any of its Restricted
Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the
net proceeds of which are used to refund, refinance
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or replace Indebtedness that was permitted by the Senior Subordinated Note
Indenture to be incurred;
(viii) the incurrence by the Company or any of its Restricted
Subsidiaries of intercompany Indebtedness between or among the Company and
any of its Wholly-Owned Restricted Subsidiaries; provided, however, that
(i) if the Company is the obligor on such Indebtedness and the payee is not
a Subsidiary Guarantor, such Indebtedness is expressly subordinated to the
prior payment in full in cash of all Obligations with respect to the Senior
Subordinated Notes and (ii)(A) any subsequent issuance or transfer of
Equity Interests that results in any such Indebtedness being held by a
Person other than the Company or a Wholly Owned Restricted Subsidiary and
(B) any sale or other transfer of any such Indebtedness to a Person that is
not either the Company or a Wholly Owned Restricted Subsidiary shall be
deemed, in each case, to constitute an incurrence of such Indebtedness by
the Company or such Restricted Subsidiary, as the case may be;
(ix) the incurrence by the Company or any of its Restricted
Subsidiaries of Hedging Obligations that are incurred for the purpose of
fixing or hedging currency risk or interest rate risk with respect to any
floating rate Indebtedness that is permitted by the terms of this Senior
Subordinated Note Indenture to be outstanding;
(x) the guarantee by the Company or any of its Restricted Subsidiaries
of Indebtedness of the Company or a Restricted Subsidiary of the Company
that was permitted to be incurred by another provision of this covenant;
(xi) the incurrence by the Company's Unrestricted Subsidiaries of
Non-Recourse Debt, provided, however, that if any such Indebtedness ceases
to be Non-Recourse Debt of an Unrestricted Subsidiary, such event shall be
deemed to constitute an incurrence of Indebtedness by a Restricted
Subsidiary of the Company;
(xii) Asset Sales in the form of Receivables Transactions;
(xiii) Indebtedness incurred by the Company or any of its Restricted
Subsidiaries constituting reimbursement obligations with respect to letters
of credit issued in the ordinary course of business, including without
limitation to letters of credit in respect to workers' compensation claims
or self-insurance, or other Indebtedness with respect to reimbursement type
obligations regarding workers' compensation claims; provided, however, that
upon the drawing of such letters of credit or the incurrence of such
Indebtedness, such obligations are reimbursed within 30 days following such
drawing or incurrence;
(xiv) Indebtedness arising from agreements of the Company or a
Restricted Subsidiary providing for indemnification, adjustment of purchase
price or similar obligations, in each case, incurred or assumed in
connection with the disposition of any business, asset or Subsidiary, other
than guarantees of Indebtedness incurred by any Person acquiring all or any
portion of such business, assets or Subsidiary for the purpose of financing
such acquisition; provided that the maximum aggregate liability of all such
Indebtedness shall at no time exceed 50% of the gross proceeds actually
received by the Company or a Restricted Subsidiary in connection with such
disposition;
(xv) obligations in respect of performance and surety bonds and
completion guarantees provided by the Company or any Restricted Subsidiary
in the ordinary course of business;(xvi) guarantees incurred in the
ordinary course of business in an aggregate principal amount not to exceed
$5.0 million at any time outstanding; and
(xvi) the incurrence by the Company or any of its Restricted
Subsidiaries of additional Indebtedness, including Attributable Debt
incurred after the date of the Senior Subordinated Note Indenture, in an
aggregate principal amount (or accreted value, as applicable) at any time
outstanding, including all Permitted Refinancing Indebtedness incurred to
refund, refinance or replace any other Indebtedness incurred pursuant to
this clause (xvii), not to exceed $25.0 million.
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For purposes of determining compliance with this covenant, in the event
that an item of Indebtedness meets the criteria of more than one of the
categories of Permitted Debt described in clauses (i) through (xvii) above or is
entitled to be incurred pursuant to the first paragraph of this covenant, the
Company shall, in its sole discretion, classify such item of Indebtedness in any
manner that complies with this covenant and such item of Indebtedness will be
treated as having been incurred pursuant to only one of such clauses or pursuant
to the first paragraph hereof. Accrual of interest and the accretion of accreted
value will not be deemed to be an incurrence of Indebtedness for purposes of
this covenant.
LIENS
The Senior Subordinated Note Indenture provides that the Company will not,
and will not permit any of its Restricted Subsidiaries to, create, incur, assume
or otherwise cause or suffer to exist or become effective any Lien of any kind
securing trade payables or Indebtedness that does not constitute Senior Debt
(other than Permitted Liens) upon any of their property or assets, now owned or
hereafter acquired.
DIVIDEND AND OTHER PAYMENT RESTRICTIONS AFFECTING RESTRICTED SUBSIDIARIES
The Senior Subordinated Note Indenture provides that the Company will not,
and will not permit any of its Restricted Subsidiaries to, directly or
indirectly, create or otherwise cause or suffer to exist or become effective any
encumbrance or restriction on the ability of any Restricted Subsidiary to (i)(a)
pay dividends or make any other distributions to the Company or any of its
Restricted Subsidiaries (1) on its Capital Stock or (2) with respect to any
other interest or participation in, or measured by, its profits, or (b) pay any
indebtedness owed to the Company or any of its Restricted Subsidiaries, (ii)make
loans or advances to the Company or any of its Restricted Subsidiaries or (iii)
transfer any of its properties or assets to the Company or any of its Restricted
Subsidiaries, except for such encumbrances or restrictions existing under or by
reason of (a) Existing Indebtedness as in effect on July 11, 1997, (b) the
Credit Facility as in effect as of July 11, 1997, and any amendments,
modifications, restatements, renewals, increases, supplements, refundings,
replacements or refinancings thereof, provided that such amendments,
modifications, restatements, renewals, increases, supplements, refundings,
replacement or refinancings are no more restrictive in the aggregate (as
determined by the Credit Agent in good faith) with respect to such dividend and
other payment restrictions than those contained in the Credit Facility as in
effect on July 11, 1997, (c) the Senior Subordinated Note Indenture and the
Senior Subordinated Notes, (d) any applicable law, rule, regulation or order,
(e) any instrument governing Indebtedness or Capital Stock of a Person acquired
by the Company or any of its Restricted Subsidiaries as in effect at the time of
such acquisition (except to the extent such Indebtedness was incurred in
connection with or in contemplation of such acquisition), which encumbrance or
restriction is not applicable to any Person, or the properties or assets of any
Person, other than the Person, or the property or assets of the Person, so
acquired, provided that, in the case of Indebtedness, such Indebtedness was
permitted by the terms of the Senior Subordinated Note Indenture to be incurred,
(f) by reason of customary non-assignment provisions in leases entered into in
the ordinary course of business and consistent with past practices, (g) purchase
money obligations for property acquired in the ordinary course of business that
impose restrictions of the nature described in clause (iii) above on the
property so acquired, (h) Permitted Refinancing Indebtedness, provided that the
material restrictions contained in the agreements governing such Permitted
Refinancing Indebtedness are no more restrictive than those contained in the
agreements governing the Indebtedness being refinanced, (i) contracts for the
sale of assets, including without limitation customary restrictions with respect
to a Subsidiary pursuant to an agreement that has been entered into for the sale
or disposition of all or substantially all of the Capital Stock or assets of
such Subsidiary, and (j) restrictions on cash or other deposits or net worth
imposed by customers under contracts entered into in the ordinary course of
business.
MERGER, CONSOLIDATION, OR SALE OF ASSETS
The Senior Subordinated Note Indenture provides that the Company may not
consolidate or merge with or into (whether or not the Company is the surviving
corporation), or sell, assign, transfer, lease,
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convey or otherwise dispose of all or substantially all of its properties or
assets in one or more related transactions, to another corporation, Person or
entity unless (i) the Company is the surviving corporation or the entity or the
Person formed by or surviving any such consolidation or merger (if other than
the Company) or to which such sale, assignment, transfer, lease, conveyance or
other disposition shall have been made is a corporation organized or existing
under the laws of the United States, any state thereof or the District of
Columbia; (ii) the entity or Person formed by or surviving any such
consolidation or merger (if other than the Company) or the entity or Person to
which such sale, assignment, transfer, lease, conveyance or other disposition
shall have been made assumes all the obligations of the Company under the Senior
Subordinated Notes and the Senior Subordinated Note Indenture pursuant to a
supplemental indenture in a form reasonably satisfactory to the Senior
Subordinated Note Trustee; (iii) immediately after such transaction no Default
or Event of Default exists; and (iv) except in the case of a merger of the
Company with or into a Wholly-Owned Restricted Subsidiary of the Company, the
Company or the entity or Person formed by or surviving any such consolidation or
merger (if other than the Company), or to which such sale, assignment, transfer,
lease, conveyance or other disposition shall have been made will, at the time of
such transaction and after giving pro forma effect thereto as if such
transaction had occurred at the beginning of the applicable four-quarter period,
be permitted to incur at least $1.00 of additional Indebtedness pursuant to the
Fixed Charge Coverage Ratio test set forth in the first paragraph of the
covenant described above under the caption "-- Incurrence of Indebtedness and
Issuance of Preferred Stock."
TRANSACTIONS WITH AFFILIATES
The Senior Subordinated Note Indenture provides that the Company will not,
and will not permit any of its Restricted Subsidiaries to, make any payment to,
or sell, lease, transfer or otherwise dispose of any of its properties or assets
to, or purchase any property or assets from, or enter into or make or amend any
transaction, contract, agreement, understanding, loan, advance or guarantee
with, or for the benefit of, any Affiliate (each of the foregoing, an "Affiliate
Transaction") involving consideration in excess of $3.0 million unless (i) such
Affiliate Transaction is on terms that are no less favorable to the Company or
the relevant Restricted Subsidiary than those that would have been obtained in a
comparable transaction by the Company or such Restricted Subsidiary with an
unrelated Person and (ii) the Company delivers to the Senior Subordinated Note
Trustee (a) with respect to any Affiliate Transaction or series of related
Affiliate Transactions involving aggregate consideration in excess of $7.5
million, a resolution of the Board of Directors set forth in an Officers'
Certificate certifying that such Affiliate Transaction complies with clause (i)
above and that such Affiliate Transaction has been approved by a majority of the
disinterested members of the Board of Directors and (b) with respect to any
Affiliate Transaction or series of related Affiliate Transactions involving
either aggregate consideration in excess of $15.0 million or an aggregate
consideration in excess of $10.0 million where there are no disinterested
members of the Board of Directors, an opinion as to the fairness to the holders
of such Affiliate Transaction from a financial point of view issued by an
accounting, appraisal or investment banking firm of national standing; provided
that the following shall not be deemed Affiliate Transactions: (q) any
employment agreement entered into by the Company or any of its Restricted
Subsidiaries in the ordinary course of business and consistent with the past
practice of the Company or such Restricted Subsidiary, (r) transactions between
or among the Company and/or its Restricted Subsidiaries, (s) Permitted
Investments and Restricted Payments that are permitted by the provisions of the
Senior Subordinated Note Indenture described above under the caption
"-- Restricted Payments," (t) customary loans, advances, fees and compensation
paid to, and indemnity provided on behalf of, officers, directors, employees or
consultants of the Company or any of its Restricted Subsidiaries, (u) annual
management fees paid to Holberg not to exceed $5.0 million in any one year, (v)
transactions pursuant to any contract or agreement in effect on the date of the
Senior Subordinated Note Indenture as the same may be amended, modified or
replaced from time to time so long as any such amendment, modification or
replacement is no less favorable to the Company and its Restricted Subsidiaries
than the contract or agreement as in effect on the Issue Date or is approved by
a majority of the disinterested directors of NEHC, (w) transactions between the
Company or its Restricted Subsidiaries on the one hand, and Holberg on the other
hand, involving the provision of financial or advisory services
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by Holberg; provided that fees payable to Holberg do not exceed the usual and
customary fees for similar services, (x) transactions between the Company or its
Restricted Subsidiaries on the one hand, and Donaldson, Lufkin & Jenrette
Securities Corporation or its Affiliates ("DLJ") on the other hand, involving
the provision of financial, advisory, placement or underwriting services by DLJ;
provided that fees payable to DLJ do not exceed the usual and customary fees of
DLJ for similar services, (y) the insurance arrangements between NEHC and its
Subsidiaries and an Affiliate of Holberg that are not less favorable to the
Company or any of its Subsidiaries than those that are in effect on the date
hereof provided such arrangements are conducted in the ordinary course of
business consistent with past practices, and (z) payments under the tax sharing
agreement among Holberg and other members of the affiliated group of
corporations of which it is the common parent.
ANTI-LAYERING
The Senior Subordinated Note Indenture provides that (i) the Company will
not incur, create, issue, assume, guarantee or otherwise become liable for any
Indebtedness that is both (a) subordinate or junior in right of payment to any
Senior Debt and (b) senior in any respect in right of payment to the Senior
Subordinated Notes and (ii) no Subsidiary Guarantor will incur, create, issue,
assume, guarantee or otherwise become liable for any Indebtedness that is both
(a) subordinate or junior in right of payment to its Senior Debt and (b) senior
in right of payment to its Note Guarantee.
SALE AND LEASEBACK TRANSACTIONS
The Senior Subordinated Note Indenture provides that the Company will not,
and will not permit any of its Restricted Subsidiaries to, enter into any sale
and leaseback transaction; provided that the Company may enter into a sale and
leaseback transaction if (i) the Company could have (a) incurred Indebtedness in
an amount equal to the Attributable Debt relating to such sale and leaseback
transaction pursuant to the covenant described above under the caption
"-- Incurrence of Indebtedness and Issuance of Preferred Stock" and (b) incurred
a Lien to secure such Indebtedness pursuant to the covenant described above
under the caption "-- Liens," (ii) the gross cash proceeds of such sale and
leaseback transaction are at least equal to the fair market value (as determined
in good faith by the Board of Directors and set forth in an Officers'
Certificate delivered to the Senior Subordinated Note Trustee) of the property
that is the subject of such sale and leaseback transaction and (iii) the
transfer of assets in such sale and leaseback transaction is permitted by, and
the Company applies the proceeds of such transaction in compliance with, the
covenant described above under the caption "-- Repurchase at the Option of
holders -- Asset Sales."
LIMITATION ON ISSUANCES AND SALES OF CAPITAL STOCK OF WHOLLY-OWNED RESTRICTED
SUBSIDIARIES
The Senior Subordinated Note Indenture provides that the Company (i) will
not, and will not permit any Wholly-Owned Restricted Subsidiary of the Company
to, transfer, convey, sell, lease or otherwise dispose of any Capital Stock of
any Wholly-Owned Subsidiary of the Company to any Person (other than the Company
or a Wholly-Owned Restricted Subsidiary of the Company), unless (a) such
transfer, conveyance, sale, lease or other disposition is of all the Capital
Stock of such Wholly-Owned Restricted Subsidiary and (b) the cash Net Proceeds
from such transfer, conveyance, sale, lease or other disposition are applied in
accordance with the covenant described above under the caption "-- Asset Sales,"
and (ii) will not permit any Wholly-Owned Restricted Subsidiary of the Company
to issue any of its Equity Interests (other than, if necessary, shares of its
Capital Stock constituting directors' qualifying shares) to any Person other
than to the Company or a Wholly-Owned Restricted Subsidiary of the Company.
LIMITATIONS ON ISSUANCES OF GUARANTEES OF INDEBTEDNESS
The Senior Subordinated Note Indenture provides that the Company will not
permit any Restricted Subsidiary, directly or indirectly, to Guarantee or pledge
any assets to secure the payment of any other Indebtedness of the Company unless
either such Restricted Subsidiary (x) is a Subsidiary Guarantor or (y)
simultaneously executes and delivers a supplemental indenture to the Senior
Subordinated Note Indenture providing for the Guarantee of the payment of the
Senior Subordinated Notes by such
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Restricted Subsidiary, which Guarantee shall be senior to or pari passu with
such Restricted Subsidiary's Guarantee of or pledge to secure such other
Indebtedness. Notwithstanding the foregoing, any such Guarantee by a Restricted
Subsidiary of the Senior Subordinated Notes shall provide by its terms that it
shall be automatically and unconditionally released and discharged upon any
sale, exchange or transfer, to any Person not an Affiliate of the Company, of
all of the Company's stock in, or all or substantially all the assets of, such
Restricted Subsidiary, which sale, exchange or transfer is made in compliance
with the applicable provisions of the Senior Subordinated Note Indenture. The
form of such Guarantee is attached as an exhibit to the Senior Subordinated Note
Indenture.
BUSINESS ACTIVITIES
The Company will not, and will not permit any Restricted Subsidiary to,
engage in any business other than a Permitted Business, except to such extent as
would not be material to the Company and its Restricted Subsidiaries taken as a
whole.
ADDITIONAL GUARANTEES
The Senior Subordinated Note Indenture provides that (i) if the Company or
any of its Restricted Subsidiaries shall, after the date of the Senior
Subordinated Note Indenture, transfer or cause to be transferred, including by
way of any Investment, in one or a series of transactions (whether or not
related), any assets, businesses, divisions, real property or equipment having
an aggregate fair market value (as determined in good faith by the Board of
Directors) in excess of $1.0 million to any Restricted Subsidiary that is not a
Subsidiary Guarantor or a Foreign Subsidiary, (ii) if the Company or any of its
Restricted Subsidiaries shall acquire another Restricted Subsidiary other than a
Foreign Subsidiary having total assets with a fair market value (as determined
in good faith by the Board of Directors) in excess of $1.0 million, or (iii) if
any Restricted Subsidiary other than a Foreign Subsidiary shall incur Acquired
Debt in excess of $1.0 million, then the Company shall, at the time of such
transfer, acquisition or incurrence, (i) cause such transferee, acquired
Restricted Subsidiary or Restricted Subsidiary incurring Acquired Debt (if not
then a Subsidiary Guarantor) to execute a Senior Subordinated Note Guarantee of
the Obligations of the Company under the Senior Subordinated Notes in the form
set forth in the Senior Subordinated Note Indenture and (ii) deliver to the
Senior Subordinated Note Trustee an Opinion of Counsel, in form reasonably
satisfactory to the Senior Subordinated Note Trustee, that such Note Guarantee
is a valid, binding and enforceable obligation of such transferee, acquired
Restricted Subsidiary or Restricted Subsidiary incurring Acquired Debt, subject
to customary exceptions for bankruptcy, fraudulent conveyance and equitable
principles. Notwithstanding the foregoing, the Company or any of its Restricted
Subsidiaries may make a Restricted Investment in any Wholly-Owned Restricted
Subsidiary of the Company without compliance with this covenant provided that
such Restricted Investment is permitted by the covenant described under the
caption, "-- Restricted Payments."
REPORTS
The Senior Subordinated Note Indenture provides that, whether or not
required by the rules and regulations of the Commission, so long as any Senior
Subordinated Notes are outstanding, the Company will furnish to the holders of
Senior Subordinated Notes (i) all quarterly and annual financial information
that would be required to be contained in a filing with the Commission on Forms
10-Q and 10-K if the Company were required to file such Forms, including a
"Management's Discussion and Analysis of Financial Condition and Results of
Operations" and, with respect to the annual information only, a report thereon
by the Company's certified independent accountants and (ii) all current reports
that would be required to be filed with the Commission on Form 8-K if the
Company were required to file such reports. In addition, whether or not required
by the rules and regulations of the Commission, the Company will file a copy of
all such information and reports with the Commission for public availability
(unless the Commission will not accept such a filing) and make such information
available to securities analysts and prospective investors upon request. In
addition, the Company has agreed that, for so long as any Senior Subordinated
Notes remain outstanding, it will furnish to the holders and to securities
analysts and
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prospective investors, upon their request, the information required to be
delivered pursuant to Rule 144A(d)(4) under the Securities Act.
EVENTS OF DEFAULT AND REMEDIES
The Senior Subordinated Note Indenture provides that each of the following
constitutes an Event of Default: (i) default for 30 days in the payment when due
of interest on, or Liquidated Damages with respect to, the Senior Subordinated
Notes (whether or not prohibited by the subordination provisions of the Senior
Subordinated Note Indenture); (ii) default in payment when due of the principal
of or premium, if any, on the Senior Subordinated Notes (whether or not
prohibited by the subordination provisions of the Senior Subordinated Note
Indenture); (iii) failure by the Company to comply with the provisions described
under the captions "-- Repurchase at the Option of Holders -- Change of
Control," "-- Certain Covenants -- Asset Sales," or "-- Certain
Covenants -- Merger, Consolidation, or Sale of Assets"; (iv) failure by the
Company for 30 days after notice from the Senior Subordinated Note Trustee or at
least 25% in principal amount of the Senior Subordinated Notes then outstanding
to comply with the provisions described under the captions "-- Restricted
Payments" or "-- Incurrence of Indebtedness and Issuance of Preferred Stock";
(v) failure by the Company for 60 days after notice from the Senior Subordinated
Note Trustee or at least 25% in principal amount of the Senior Subordinated
Notes then outstanding to comply with any of its other agreements in the Senior
Subordinated Note Indenture or the Senior Subordinated Notes; (vi) default under
any mortgage, indenture or instrument under which there may be issued or by
which there may be secured or evidenced any Indebtedness for money borrowed by
the Company or any of its Subsidiaries (or the payment of which is guaranteed by
the Company or any of its Subsidiaries) whether such Indebtedness or Guarantee
now exists, or is created after the date of the Senior Subordinated Note
Indenture, which default (a) is caused by a failure to pay principal of or
premium, if any, or interest on such Indebtedness prior to the expiration of the
grace period provided in such Indebtedness on the date of such default (a
"Payment Default") or (b) results in the acceleration of such Indebtedness prior
to its express maturity and, in each case, the principal amount of any such
Indebtedness, together with the principal amount of any other such Indebtedness
under which there has been a Payment Default or the maturity of which has been
so accelerated, aggregates $15.0 million or more; (vii) failure by the Company
or any of its Subsidiaries to pay final judgments aggregating in excess of $5.0
million, which judgments are not paid, discharged or stayed for a period of 60
days; and (viii) certain events of bankruptcy or insolvency with respect to the
Company or any of its Subsidiaries.
If any Event of Default occurs and is continuing, the Senior Subordinated
Note Trustee or the holders of at least 25% in principal amount of the then
outstanding Senior Subordinated Notes may declare all the Senior Subordinated
Notes to be due and payable immediately provided, however, that if any
Indebtedness or Obligation is outstanding pursuant to the Credit Facility, upon
a declaration of acceleration by the holders of the Senior Subordinated Notes or
the Senior Subordinated Note Trustee, all principal and interest under the
Senior Subordinated Note Indenture shall be due and payable upon the earlier of
(x) the day which five Business Days after the provision to the Company, the
Credit Agent and the Senior Subordinated Note Trustee of such written notice of
acceleration or (y) the date of acceleration of any Indebtedness under the
Credit Facility; and provided further that in the event of an acceleration based
upon an Event of Default set forth in clause (vi) above, such declaration of
acceleration shall be automatically annulled if the holders of Indebtedness
which is the subject of such failure to pay at maturity or acceleration have
rescinded their declaration of acceleration in respect of such Indebtedness or
such failure to pay at maturity shall have been cured or waived within 30 days
thereof and no other Event of Default has occurred during such 30-day period
which has not been cured, paid or waived. Notwithstanding the foregoing, in the
case of an Event of Default arising from certain events of bankruptcy or
insolvency, with respect to the Company or any of its Subsidiaries all
outstanding Senior Subordinated Notes will become due and payable without
further action or notice. Holders of the Senior Subordinated Notes may not
enforce the Senior Subordinated Note Indenture or the Senior Subordinated Notes
except as provided in the Senior Subordinated Note Indenture. Subject to certain
limitations, holders of a majority in principal amount of the then outstanding
Senior Subordinated Notes may direct the Senior Subordinated Note Trustee in its
exercise of any trust or power. The Senior Subordinated Note
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Trustee may withhold from holders of the Senior Subordinated Notes notice of any
continuing Default or Event of Default (except a Default or Event of Default
relating to the payment of principal or interest) if it determines that
withholding notice is in their interest.
In the case of any Event of Default occurring by reason of any willful
action (or inaction) taken (or not taken) by or on behalf of the Company with
the intention of avoiding payment of the premium that the Company would have had
to pay if the Company then had elected to redeem the Senior Subordinated Notes
pursuant to the optional redemption provisions of the Senior Subordinated Note
Indenture, an equivalent premium shall also become and be immediately due and
payable to the extent permitted by law upon the acceleration of the Senior
Subordinated Notes. If an Event of Default occurs prior to July 15, 2002 by
reason of any willful action (or inaction) taken (or not taken) by or on behalf
of the Company with the intention of avoiding the prohibition on redemption of
the Senior Subordinated Notes prior to July 15, 2002, then the premium specified
in the Senior Subordinated Note Indenture shall also become immediately due and
payable to the extent permitted by law upon the acceleration of the Senior
Subordinated Notes.
The holders of a majority in aggregate principal amount of the Senior
Subordinated Notes then outstanding by notice to the Senior Subordinated Note
Trustee may on behalf of the holders of all of the Senior Subordinated Notes
waive any existing Default or Event of Default and its consequences under the
Senior Subordinated Note Indenture except a continuing Default or Event of
Default in the payment of interest on, or the principal of, the Senior
Subordinated Notes.
The Company is required to deliver to the Senior Subordinated Note Trustee
annually a statement regarding compliance with the Senior Subordinated Note
Indenture, and the Company is required upon becoming aware of any Default or
Event of Default, to deliver to the Senior Subordinated Note Trustee a statement
specifying such Default or Event of Default.
NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS, EMPLOYEES AND STOCKHOLDERS
No director, officer, employee, incorporator or stockholder of the Company
or the Subsidiary Guarantors, as such, shall have any liability for any
obligations of the Company or any Subsidiary Guarantor under the Senior
Subordinated Notes, the Senior Subordinated Note Indenture, the Senior
Subordinated Note Guarantees or for any claim based on, in respect of, or by
reason of, such obligations or their creation. Each holder of Senior
Subordinated Notes by accepting a Senior Subordinated Note waives and releases
all such liability. The waiver and release are part of the consideration for
issuance of the Senior Subordinated Notes. Such waiver may not be effective to
waive liabilities under the federal securities laws and it is the view of the
Commission that such a waiver is against public policy.
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
The Company may, at its option and at any time, elect to have all of its
obligations discharged with respect to the outstanding Senior Subordinated Notes
and all obligations of the Subsidiary Guarantors under the Senior Subordinated
Note Guarantees ("Legal Defeasance") except for (i) the rights of holders of
outstanding Senior Subordinated Notes to receive payments in respect of the
principal of, premium and Liquidated Damages, if any, and interest on such
Senior Subordinated Notes when such payments are due from the trust referred to
below, (ii) the Company's obligations with respect to the Senior Subordinated
Notes concerning issuing temporary Senior Subordinated Notes, registration of
Senior Subordinated Notes, mutilated, destroyed, lost or stolen Senior
Subordinated Notes and the maintenance of an office or agency for payment and
money for security payments held in trust, (iii) the rights, powers, trusts,
duties and immunities of the Senior Subordinated Note Trustee, and the Company's
obligations in connection therewith and (iv) the Legal Defeasance provisions of
the Senior Subordinated Note Indenture. In addition, the Company may, at its
option and at any time, elect to have the obligations of the Company and the
Subsidiary Guarantors released with respect to certain covenants that are
described in the Senior Subordinated Note Indenture ("Covenant Defeasance") and
thereafter any omission to comply with such obligations shall not constitute a
Default or Event of Default with respect to the Senior Subordinated
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Notes. In the event Covenant Defeasance occurs, certain events (not including
non-payment, bankruptcy, receivership, rehabilitation and insolvency events)
described under "-- Events of Default" will no longer constitute an Event of
Default with respect to the Senior Subordinated Notes.
In order to exercise either Legal Defeasance or Covenant Defeasance, (i)
the Company must irrevocably deposit with the Senior Subordinated Note Trustee,
in trust, for the benefit of the holders of the Senior Subordinated Notes, cash
in U.S. dollars, non-callable Government Securities, or a combination thereof,
in such amounts as will be sufficient, in the opinion of a nationally recognized
firm of independent public accountants, to pay the principal of, premium and
Liquidated Damages, if any, and interest on the outstanding Senior Subordinated
Notes on the stated maturity or on the applicable redemption date, as the case
may be, and the Company must specify whether the Senior Subordinated Notes are
being defeased to maturity or to a particular redemption date; (ii) in the case
of Legal Defeasance, the Company shall have delivered to the Senior Subordinated
Note Trustee an opinion of counsel in the United States reasonably acceptable to
the Senior Subordinated Note Trustee confirming that (A) the Company has
received from, or there has been published by, the Internal Revenue Service a
ruling or (B) since the date of the Senior Subordinated Note Indenture, there
has been a change in the applicable federal income tax law, in either case to
the effect that, and based thereon such opinion of counsel shall confirm that,
the holders of the outstanding Senior Subordinated Notes will not recognize
income, gain or loss for federal income tax purposes as a result of such Legal
Defeasance and will be subject to federal income tax on the same amounts, in the
same manner and at the same times as would have been the case if such Legal
Defeasance had not occurred; (iii) in the case of Covenant Defeasance, the
Company shall have delivered to the Senior Subordinated Note Trustee an opinion
of counsel in the United States reasonably acceptable to the Senior Subordinated
Note Trustee confirming that the holders of the outstanding Senior Subordinated
Notes will not recognize income, gain or loss for federal income tax purposes as
a result of such Covenant Defeasance and will be subject to federal income tax
on the same amounts, in the same manner and at the same times as would have been
the case if such Covenant Defeasance had not occurred; (iv) no Default or Event
of Default shall have occurred and be continuing on the date of such deposit
(other than a Default or Event of Default resulting from the borrowing of funds
to be applied to such deposit) or insofar as Events of Default from bankruptcy
or insolvency events are concerned, at any time in the period ending on the 91st
day after the date of deposit; (v) such Legal Defeasance or Covenant Defeasance
will not result in a breach or violation of, or constitute a default under any
material agreement or instrument (other than the Senior Subordinated Note
Indenture) to which the Company or any of its Subsidiaries is a party or by
which the Company or any of its Subsidiaries is bound; (vi) the Company must
have delivered to the Senior Subordinated Note Trustee an opinion of counsel to
the effect that after the 91st day following the deposit, the trust funds will
not be subject to the effect of any applicable bankruptcy, insolvency,
reorganization or similar laws affecting creditors' rights generally; (vii) the
Company must deliver to the Senior Subordinated Note Trustee an Officers'
Certificate stating that the deposit was not made by the Company with the intent
of preferring the holders of Senior Subordinated Notes over the other creditors
of the Company with the intent of defeating, hindering, delaying or defrauding
creditors of the Company or others; and (viii) the Company must deliver to the
Senior Subordinated Note Trustee an Officers' Certificate and an opinion of
counsel, each stating that all conditions precedent provided for relating to the
Legal Defeasance or the Covenant Defeasance have been complied with.
TRANSFER AND EXCHANGE
A holder may transfer or exchange Senior Subordinated Notes in accordance
with the Senior Subordinated Note Indenture. The Registrar and the Senior
Subordinated Note Trustee may require a Holder, among other things, to furnish
appropriate endorsements and transfer documents and the Company may require a
holder to pay any taxes and fees required by law or permitted by the Senior
Subordinated Note Indenture. The Company is not required to transfer or exchange
any Senior Subordinated Note selected for redemption. Also, the Company is not
required to transfer or exchange any Senior Subordinated Note for a period of 15
days before a selection of Senior Subordinated Notes to be redeemed.
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The registered holder of a Senior Subordinated Note will be treated as the
owner of it for all purposes.
AMENDMENT, SUPPLEMENT AND WAIVER
Except as provided in the next two succeeding paragraphs, the Senior
Subordinated Note Indenture, the Senior Subordinated Notes or the Senior
Subordinated Note Guarantees may be amended or supplemented with the consent of
the holders of at least a majority in principal amount of the Senior
Subordinated Notes then outstanding (including, without limitation, consents
obtained in connection with a purchase of, or tender offer or exchange offer
for, Senior Subordinated Notes), and any existing default or compliance with any
provision of the Senior Subordinated Note Indenture, the Senior Subordinated
Notes or the Senior Subordinated Note Guarantees may be waived with the consent
of the holders of a majority in principal amount of the then outstanding Senior
Subordinated Notes (including consents obtained in connection with a tender
offer or exchange offer for Senior Subordinated Notes).
Without the consent of each holder affected, an amendment or waiver may not
(with respect to any Senior Subordinated Notes held by a non-consenting holder):
(i) reduce the principal amount of Senior Subordinated Notes whose holders must
consent to an amendment, supplement or waiver; (ii) reduce the principal of or
change the fixed maturity of any Note or alter the provisions with respect to
the redemption of the Senior Subordinated Notes (other than provisions relating
to the covenants described above under the caption "-- Repurchase at the Option
of Holders"); (iii) reduce the rate of or change the time for payment of
interest on any Senior Subordinated Note; (iv) waive a Default or Event of
Default in the payment of principal of or premium, if any, or interest on the
Senior Subordinated Notes (except a rescission of acceleration of the Senior
Subordinated Notes by the holders of at least a majority in aggregate principal
amount of the Senior Subordinated Notes and a waiver of the payment default that
resulted from such acceleration); (v) make any Senior Subordinated Note payable
in money other than that stated in the Senior Subordinated Notes; (vi) make any
change in the provisions of the Senior Subordinated Note Indenture relating to
waivers of past Defaults or the rights of holders of Senior Subordinated Notes
to receive payments of principal of or premium, if any, or interest on the
Senior Subordinated Notes; (vii) waive a redemption payment with respect to any
Senior Subordinated Note (other than a payment required by one of the covenants
described above under the caption "-- Repurchase at the Option of holders") or
(viii) make any change in the foregoing amendment and waiver provisions. In
addition, any amendment to the provisions of Article 10 of the Senior
Subordinated Note Indenture (which relate to subordination) will require the
consent of the holders of at least 75% in aggregate principal amount of the
Senior Subordinated Notes then outstanding if such amendment would adversely
affect the rights of holders of Senior Subordinated Notes.
Notwithstanding the foregoing, without the consent of any Holder of Senior
Subordinated Notes, the Company, the Subsidiary Guarantors and the Senior
Subordinated Note Trustee may amend or supplement the Senior Subordinated Note
Indenture, the Senior Subordinated Notes or the Senior Subordinated Note
Guarantees to cure any ambiguity, defect or inconsistency, to provide for
uncertificated Senior Subordinated Notes in addition to or in place of
certificated Senior Subordinated Notes, to provide for the assumption of the
Company's and the Subsidiary Guarantors' obligations to holders of Senior
Subordinated Notes in the case of a merger or consolidation, to make any change
that would provide any additional rights or benefits to the holders of Senior
Subordinated Notes or that does not adversely affect the legal rights under the
Senior Subordinated Note Indenture of any such Holder, to comply with
requirements of the Commission in order to effect or maintain the qualification
of the Senior Subordinated Note Indenture under the Trust Indenture Act or to
allow any Subsidiary to guarantee the Senior Subordinated Notes.
CONCERNING THE SENIOR SUBORDINATED NOTE TRUSTEE
The Senior Subordinated Note Indenture contains certain limitations on the
rights of the Senior Subordinated Note Trustee, should it become a creditor of
the Company, to obtain payment of claims in certain cases, or to realize on
certain property received in respect of any such claim as security or
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otherwise. The Senior Subordinated Note Trustee will be permitted to engage in
other transactions; however, if it acquires any conflicting interest it must
eliminate such conflict within 90 days, apply to the Commission for permission
to continue or resign.
The holders of a majority in principal amount of the then outstanding
Senior Subordinated Notes will have the right to direct the time, method and
place of conducting any proceeding for exercising any remedy available to the
Senior Subordinated Note Trustee, subject to certain exceptions. The Senior
Subordinated Note Indenture provides that in case an Event of Default shall
occur (which shall not be cured), the Senior Subordinated Note Trustee will be
required, in the exercise of its power, to use the degree of care of a prudent
man in the conduct of his own affairs. Subject to such provisions, the Senior
Subordinated Note Trustee will be under no obligation to exercise any of its
rights or powers under the Senior Subordinated Note Indenture at the request of
any Holder of Senior Subordinated Notes, unless such Holder shall have offered
to the Senior Subordinated Note Trustee security and indemnity satisfactory to
it against any loss, liability or expense.
ADDITIONAL INFORMATION
Anyone who receives this Prospectus may obtain a copy of the Senior
Subordinated Note Indenture and Registration Rights Agreement without charge by
writing to AmeriServe, 15305 Dallas Parkway, Addison, Texas 75001; Attention:
Secretary.
CERTAIN DEFINITIONS
Set forth below are certain defined terms used in the Senior Subordinated
Note Indenture. Reference is made to the Indenture for a full disclosure of all
such terms, as well as any other capitalized terms used herein for which no
definition is provided.
"Acquired Debt" means, with respect to any specified Person, (i)
Indebtedness of any other Person existing at the time such other Person is
merged with or into or became a Subsidiary of such specified Person, including,
without limitation, Indebtedness incurred in connection with, or in
contemplation of, such other Person merging with or into or becoming a
Subsidiary of such specified Person, and (ii) Indebtedness secured by a Lien
encumbering any asset acquired by such specified Person.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For purposes of this definition, "control"
(including, with correlative meanings, the terms "controlling," "controlled by"
and "under common control with"), as used with respect to any Person, shall mean
the possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of such Person, whether through the
ownership of voting securities, by agreement or otherwise; provided that
beneficial ownership of 10% or more of the voting securities of a Person shall
be deemed to be control.
"Asset Sale" means (i) the sale, lease, conveyance or other disposition of
any assets or rights (including, without limitation, by way of a sale and
leaseback) other than sales of inventory in the ordinary course of business
consistent with past practices and other than a Receivables Transaction
(provided that the sale, lease, conveyance or other disposition of all or
substantially all of the assets of the Company and its Restricted Subsidiaries
taken as a whole will be governed by the provisions of the Indenture described
above under the caption "-- Repurchase at Option of Holders -- Change of
Control" and/or the provisions described above under the caption "-- Certain
Covenants -- Merger, Consolidation or Sale of Assets" and not by the provisions
of the Asset Sale covenant), and (ii) the issue or sale by the Company or any of
its Restricted Subsidiaries of Equity Interests of any of the Company's
Restricted Subsidiaries, in the case of either clause (i) or (ii), whether in a
single transaction or a series of related transactions (a) that have a fair
market value in excess of $3.0 million or (b) for net proceeds in excess of $3.0
million. Notwithstanding the foregoing: (i) a transfer of assets by the Company
to a Wholly Owned Restricted Subsidiary or by a Wholly Owned Restricted
Subsidiary to the Company or to another Wholly Owned Restricted Subsidiary, (ii)
an issuance of Equity Interests by a Wholly Owned Restricted Subsidiary to the
Company or to another Wholly Owned Restricted Subsidiary, and (iii) a Restricted
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Payment that is permitted by the covenant described above under the caption
"-- Certain Covenants -- Restricted Payments" will not be deemed to be Asset
Sales.
"Attributable Debt" in respect of a sale and leaseback transaction means,
at the time of determination, the present value (discounted at the rate of
interest implicit in such transaction, determined in accordance with GAAP) of
the obligation of the lessee for net rental payments during the remaining term
of the lease included in such sale and leaseback transaction (including any
period for which such lease has been extended or may, at the option of the
lessor, be extended).
"Capital Lease Obligation" means, at the time any determination thereof is
to be made, the amount of the liability in respect of a capital lease that would
at such time be required to be capitalized on a balance sheet in accordance with
GAAP.
"Capital Stock" means (i) in the case of a corporation, corporate stock,
(ii) in the case of an association or business entity, any and all shares,
interests, participations, rights or other equivalents (however designated) of
corporate stock, (iii) in the case of a partnership or limited liability
company, partnership or membership interests (whether general or limited) and
(iv) any other interest or participation that confers on a Person the right to
receive a share of the profits and losses of, or distributions of assets of, the
issuing Person.
"Cash Equivalents" means (i) United States dollars, (ii) securities issued
or directly and fully guaranteed or insured by the United States government or
any agency or instrumentality thereof having maturities of not more than six
months from the date of acquisition, (iii) certificates of deposit and
eurodollar time deposits with maturities of six months or less from the date of
acquisition, bankers' acceptances with maturities not exceeding six months and
overnight bank deposits, in each case with any lender party to the Credit
Facility or with any domestic commercial bank having capital and surplus in
excess of $500 million and a Thompson Bank Watch Rating of "B" or better, (iv)
repurchase obligations with a term of not more than seven days for underlying
securities of the types described in clauses (ii) and (iii) above entered into
with any financial institution meeting the qualifications specified in clause
(iii) above, (v) commercial paper having the highest rating obtainable from
Moody's Investors Service, Inc. or Standard & Poor's Corporation and in each
case maturing within six months after the date of acquisition and (vi)
securities quoted by the Nasdaq National Market or listed on a United States,
Canadian or western European national securities exchange.
"Change of Control" means the occurrence of any of the following: (i) the
sale, lease, transfer, conveyance or other disposition (other than by way of
merger or consolidation), in one or a series of related transactions, of all or
substantially all of the assets of the Company and its Subsidiaries taken as a
whole to any "person" (as such term is used in Section 13(d)(3) of the Exchange
Act) other than the Principals or their Related Parties (as defined below), (ii)
the adoption of a plan relating to the liquidation or dissolution of the
Company, (iii) the consummation of any transaction (including, without
limitation, any merger or consolidation) the result of which is that any
"person" (as defined above), other than the Principals and their Related
Parties, becomes the "beneficial owner" (as such term is defined in Rule 13d-3
and Rule 13d-5 under the Exchange Act, except that a person shall be deemed to
have "beneficial ownership" of all securities that such person has the right to
acquire, whether such right is currently exercisable or is exercisable only upon
the occurrence of a subsequent condition), directly or indirectly, of more than
50% of the Voting Stock of the Company (measured by voting power rather than
number of shares), (iv) the first day on which a majority of the members of the
Board of Directors of the Company are not Continuing Directors or (v) the
Company consolidates with, or merges with or into, any Person or sells, assigns,
conveys, transfers, leases or otherwise disposes of all or substantially all of
its assets to any Person, or any Person consolidates with, or merges with or
into, the Company, in any such event pursuant to a transaction in which any of
the outstanding Voting Stock of the Company is converted into or exchanged for
cash, securities or other property, other than any such transaction where the
Voting Stock of the Company outstanding immediately prior to such transaction is
converted into or exchanged for Voting Stock (other than Disqualified Stock) of
the surviving or transferee Person constituting a
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majority of the outstanding shares of such Voting Stock of such surviving or
transferee Person (immediately after giving effect to such issuance).
"Consolidated Cash Flow" means, with respect to any Person for any period,
the Consolidated Net Income of such Person for such period plus (i) an amount
equal to any extraordinary loss plus any net loss realized in connection with an
Asset Sale (to the extent such losses were deducted in computing such
Consolidated Net Income), plus (ii) provision for taxes based on income or
profits of such Person and its Subsidiaries for such period, to the extent that
such provision for taxes was included in computing such Consolidated Net Income,
plus (iii) consolidated interest expense of such Person and its Subsidiaries for
such period, whether paid or accrued and whether or not capitalized (including,
without limitation, amortization of debt issuance costs and original issue
discount, non-cash interest payments, the interest component of any deferred
payment obligations, the interest component of all payments associated with
Capital Lease Obligations, commissions, discounts and other fees and charges
incurred in respect of letter of credit or bankers' acceptance financings, and
net payments (if any) pursuant to Hedging Obligations), to the extent that any
such expense was deducted in computing such Consolidated Net Income, plus (iv)
depreciation, amortization (including amortization of goodwill and other
intangibles but excluding amortization of prepaid cash expenses that were paid
in a prior period) and other non-cash expenses (excluding any such non-cash
expense to the extent that it represents an accrual of or reserve for cash
expenses in any future period or amortization of a prepaid cash expense that was
paid in a prior period) of such Person and its Subsidiaries for such period to
the extent that such depreciation, amortization and other non-cash expenses were
deducted in computing such Consolidated Net Income, plus (v) in connection with
any acquisition by the Company, projected quantifiable improvements in operating
results (on an annualized basis) due to cost reductions calculated in accordance
with Article 11 of Regulation S-X of the Securities Act and evidenced by (A) in
the case of cost reductions of less than $10.0 million, an Officers' Certificate
delivered to the Trustee and (B) in the case of cost reductions of $10.0 million
or more, a resolution of the Board of Directors set forth in an Officers'
Certificate delivered to the Trustee, minus (vi) non-cash items increasing such
Consolidated Net Income for such period. Notwithstanding the foregoing, the
provision for taxes on the income or profits of, and the depreciation and
amortization and other non-cash charges of, a Subsidiary of the referent Person
shall be added to Consolidated Net Income to compute Consolidated Cash Flow only
to the extent that a corresponding amount would be permitted at the date of
determination to be dividended to the Company by such Subsidiary without prior
governmental approval (that has not been obtained), and without direct or
indirect restriction pursuant to the terms of its charter and all agreements,
instruments, judgments, decrees, orders, statutes, rules and governmental
regulations applicable to that Subsidiary or its stockholders.
"Consolidated Net Income" means, with respect to any Person for any period,
the aggregate of the Net Income of such Person and its Restricted Subsidiaries
for such period, on a consolidated basis, determined in accordance with GAAP;
provided that (i) the Net Income (but not loss) of any Person that is not a
Restricted Subsidiary or that is accounted for by the equity method of
accounting shall be included only to the extent of the amount of dividends or
distributions paid in cash to the referent Person or a Wholly Owned Restricted
Subsidiary thereof, (ii) the Net Income of any Restricted Subsidiary shall be
excluded to the extent that the declaration or payment of dividends or similar
distributions by that Restricted Subsidiary of that Net Income is not at the
date of determination permitted without any prior governmental approval (that
has not been obtained) or, directly or indirectly, by operation of the terms of
its charter or any agreement, instrument, judgment, decree, order, statute, rule
or governmental regulation applicable to that Subsidiary or its stockholders,
(iii) the Net Income of any Person acquired in a pooling of interests
transaction for any period prior to the date of such acquisition shall be
excluded, (iv) the cumulative effect of a change in accounting principles shall
be excluded and (v) the Net Income of any Unrestricted Subsidiary shall be
excluded, whether or not distributed to the Company or one of its Restricted
Subsidiaries for purposes of the covenant described under the caption
"Incurrence of Indebtedness and Issuance of Preferred Stock" and shall be
included for purposes of the covenant described under the caption "Restricted
Payments" only to the extent of the amount of dividends or distributions paid in
cash to the Company or one of its Restricted Subsidiaries.
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"Consolidated Net Worth" means, with respect to any Person as of any date,
the sum of (i) the consolidated equity of the common stockholders of such Person
and its consolidated Subsidiaries as of such date plus (ii) the respective
amounts reported on such Person's balance sheet as of such date with respect to
any series of preferred stock (other than Disqualified Stock) that by its terms
is not entitled to the payment of dividends unless such dividends may be
declared and paid only out of net earnings in respect of the year of such
declaration and payment, but only to the extent of any cash received by such
Person upon issuance of such preferred stock, less (x) all write-ups (other than
write-ups resulting from foreign currency translations and write-ups of tangible
assets of a going concern business made within 12 months after the acquisition
of such business) subsequent to the date of the Indenture in the book value of
any asset owned by such Person or a consolidated Subsidiary of such Person, (y)
all investments as of such date in unconsolidated Subsidiaries and in Persons
that are not Subsidiaries (except, in each case, Permitted Investments), and (z)
all unamortized debt discount and expense and unamortized deferred charges as of
such date, all of the foregoing determined in accordance with GAAP.
"Continuing Directors" means, as of any date of determination, any member
of the Board of Directors of the Company who (i) was a member of such Board of
Directors on the date of the Indenture or (ii) was nominated for election or
elected to such Board of Directors with the approval of a majority of the
Continuing Directors who were members of such Board at the time of such
nomination or election.
"Credit Agent" means the Bank of America, in its capacity as Administrative
Agent for the lenders party to the Credit Facility, or any successor thereto or
any person otherwise appointed.
"Credit Facility" means that certain Credit Facility, dated as of the date
of the Indenture, as amended, by and among the Company and Bank of America,
providing for up to $220 million of revolving credit borrowings, including any
related notes, guarantees, collateral documents, instruments and agreements
executed in connection therewith, and in each case as amended, modified,
renewed, refunded, replaced or refinanced from time to time.
"Default" means any event that is or with the passage of time or the giving
of notice or both would be an Event of Default.
"Designated Senior Debt" means (i) any Indebtedness outstanding under the
Credit Facility and (ii) any other Senior Debt permitted under the Indenture the
principal amount of which is $25.0 million or more and that has been designated
by the Company as "Designated Senior Debt."
"Disqualified Stock" means any Capital Stock that, by its terms (or by the
terms of any security into which it is convertible or for which it is
exchangeable), or upon the happening of any event, matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or redeemable at
the option of the Holder thereof, in whole or in part, on or prior to the date
that is 91 days after the date on which the New Notes mature; provided, however,
that any Capital Stock that would not qualify as Disqualified Stock but for
change of control provisions shall not constitute Disqualified Stock if the
provisions are not more favorable to the holders of such Capital Stock than the
provisions described under "-- Change of Control" applicable to the holders of
the New Notes.
"Equity Interests" means Capital Stock and all warrants, options or other
rights to acquire Capital Stock (but excluding any debt security that is
convertible into, or exchangeable for, Capital Stock).
"Existing Indebtedness" means Indebtedness of the Company and its
Subsidiaries (other than Indebtedness under the Credit Facility) in existence on
the date of the Indenture, until such amounts are repaid.
"Fixed Charges" means, with respect to any Person for any period, the sum,
without duplication, of (i) the consolidated interest expense of such Person and
its Restricted Subsidiaries for such period, whether paid or accrued (including,
without limitation, original issue discount, non-cash interest payments, the
interest component of any deferred payment obligations, the interest component
of all payments associated with Capital Lease Obligations, commissions,
discounts and other fees and charges incurred in respect of letter of credit or
bankers' acceptance financings, and net payments (if any) pursuant to
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Hedging Obligations) and (ii) the consolidated interest expense of such Person
and its Restricted Subsidiaries that was capitalized during such period, (iii)
any interest expense on Indebtedness of another Person that is Guaranteed by
such Person or one of its Restricted Subsidiaries or secured by a Lien on assets
of such Person or one of its Restricted Subsidiaries (whether or not such
Guarantee or Lien is called upon) and (iv) the product of (a) all dividend
payments, whether or not in cash, on any series of preferred stock of such
Person or any of its Restricted Subsidiaries, other than dividend payments on
Equity Interests payable solely in Equity Interests of the Company, times (b) a
fraction, the numerator of which is one and the denominator of which is one
minus the then current combined federal, state and local statutory tax rate of
such Person, expressed as a decimal, in each case, on a consolidated basis and
in accordance with GAAP.
"Fixed Charge Coverage Ratio" means with respect to any Person for any
period, the ratio of the Consolidated Cash Flow of such Person and its
Restricted Subsidiaries for such period to the Fixed Charges of such Person and
its Restricted Subsidiaries for such period. In the event that the Company or
any of its Restricted Subsidiaries incurs, assumes, Guarantees or redeems any
Indebtedness (other than revolving credit borrowings) or issues preferred stock
subsequent to the commencement of the period for which the Fixed Charge Coverage
Ratio is being calculated but prior to the date on which the event for which the
calculation of the Fixed Charge Coverage Ratio is made (the "Calculation Date"),
then the Fixed Charge Coverage Ratio shall be calculated giving pro forma effect
to such incurrence, assumption, Guarantee or redemption of Indebtedness, or such
issuance or redemption of preferred stock, as if the same had occurred at the
beginning of the applicable four-quarter reference period. In addition, for
purposes of making the computation referred to above, (i) acquisitions that have
been made by the Company or any of its Restricted Subsidiaries, including
through mergers or consolidations and including any related financing
transactions, during the four-quarter reference period or subsequent to such
reference period and on or prior to the Calculation Date shall be deemed to have
occurred on the first day of the four-quarter reference period and Consolidated
Cash Flow for such reference period shall be calculated without giving effect to
clause (iii) of the proviso set forth in the definition of Consolidated Net
Income, (ii) the Consolidated Cash Flow attributable to discontinued operations,
as determined in accordance with GAAP, and operations or businesses disposed of
prior to the Calculation Date, shall be excluded, and (iii) the Fixed Charges
attributable to discontinued operations, as determined in accordance with GAAP,
and operations or businesses disposed of prior to the Calculation Date, shall be
excluded, but only to the extent that the obligations giving rise to such Fixed
Charges will not be obligations of the referent Person or any of its Restricted
Subsidiaries following the Calculation Date.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as have been approved by a significant segment of the accounting
profession, which are in effect on the date of the Indenture.
"Global Notes" means the Rule 144A Global Note, the Regulation S Temporary
Global Notes and the Regulation S Permanent Global Notes.
"Government Securities" means direct obligations of, or obligations
guaranteed by, the United States of America for the payment of which guarantee
or obligations the full faith and credit of the United States is pledged.
"Guarantee" means a guarantee (other than by endorsement of negotiable
instruments for collection in the ordinary course of business), direct or
indirect, in any manner (including, without limitation, letters of credit and
reimbursement agreements in respect thereof), of all or any part of any
Indebtedness.
"Hedging Obligations" means, with respect to any Person, the obligations of
such Person under (i) interest rate swap agreements, interest rate cap
agreements and interest rate collar agreements and (ii) other agreements or
arrangements designed to protect such Person against fluctuations in interest
rates or currency rates.
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"Indebtedness" means, with respect to any Person, any indebtedness of such
Person, whether or not contingent, in respect of borrowed money or evidenced by
bonds, notes, debentures or similar instruments or letters of credit (or
reimbursement agreements in respect thereof) or bankers' acceptances or
representing Capital Lease Obligations or the balance deferred and unpaid of the
purchase price of any property or representing any Hedging Obligations, except
any such balance that constitutes an accrued expense or trade payable, if and to
the extent any of the foregoing indebtedness (other than letters of credit and
Hedging Obligations) would appear as a liability upon a balance sheet of such
Person prepared in accordance with GAAP, as well as all indebtedness of others
secured by a Lien on any asset of such Person (whether or not such indebtedness
is assumed by such Person) and, to the extent not otherwise included, the
Guarantee by such Person of any indebtedness of any other Person. The amount of
any Indebtedness outstanding as of any date shall be (i) the accreted value
thereof, in the case of any Indebtedness that does not require current payments
of interest, and (ii) the principal amount thereof, together with any interest
thereon that is more than 30 days past due, in the case of any other
Indebtedness.
"Insolvency or Liquidation Proceedings" means (i) any insolvency or
bankruptcy case or proceeding, or any receivership, liquidation, reorganization
or other similar case or proceeding, relative to the Company or to the creditors
of the Company, as such, or to the assets of the Company, or (ii) any
liquidation, dissolution, reorganization or winding up of the Company, whether
voluntary or involuntary, and involving insolvency or bankruptcy, or (iii) any
assignment for the benefit of creditors or any other marshalling of assets and
liabilities of the Company.
"Investments" means, with respect to any Person, all investments by such
Person in other Persons (including Affiliates) in the forms of direct or
indirect loans (including guarantees of Indebtedness or other obligations),
advances or capital contributions (excluding commission, travel and similar
advances to officers and employees made in the ordinary course of business),
purchases or other acquisitions for consideration of Indebtedness, Equity
Interests or other securities, together with all items that are or would be
classified as investments on a balance sheet prepared in accordance with GAAP.
If the Company or any Restricted Subsidiary of the Company sells or otherwise
disposes of any Equity Interests of any direct or indirect Restricted Subsidiary
of the Company such that, after giving effect to any such sale or disposition,
such Person is no longer a Restricted Subsidiary of the Company, the Company
shall be deemed to have made an Investment on the date of any such sale or
disposition equal to the fair market value of the Equity Interests of such
Restricted Subsidiary not sold or disposed of in an amount determined as
provided in the final paragraph of the covenant described above under the
caption "-- Restricted Payments."
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset,
whether or not filed, recorded or otherwise perfected under applicable law
(including any conditional sale or other title retention agreement, any lease in
the nature thereof, any option or other agreement to sell or give a security
interest in and any filing of or agreement to give any financing statement under
the Uniform Commercial Code (or equivalent statutes) of any jurisdiction).
"Net Income" means, with respect to any Person, the net income (loss) of
such Person, determined in accordance with GAAP and before any reduction in
respect of preferred stock dividends, excluding, however, (i) any gain (but not
loss), together with any related provision for taxes on such gain (but not
loss), realized in connection with (a) any Asset Sale (including, without
limitation, dispositions pursuant to sale and leaseback transactions) or (b) the
disposition of any securities by such Person or any of its Restricted
Subsidiaries or the extinguishment of any Indebtedness of such Person or any of
its Restricted Subsidiaries and (ii) any extraordinary or nonrecurring gain (but
not loss), together with any related provision for taxes on such extraordinary
or nonrecurring gain (but not loss).
"Net Proceeds" means the aggregate cash proceeds received by the Company or
any of its Restricted Subsidiaries in respect of any Asset Sale (including,
without limitation, any cash received upon the sale or other disposition of any
non-cash consideration received in any Asset Sale), net of the direct costs
relating
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to such Asset Sale (including, without limitation, legal, accounting and
investment banking fees, and sales commissions) and any relocation expenses
incurred as a result thereof, taxes paid or payable as a result thereof (after
taking into account any available tax credits or deductions and any tax sharing
arrangements), and any reserve for adjustment in respect of the sale price of
such asset or assets established in accordance with GAAP.
"Non-Recourse Debt" means Indebtedness (i) as to which neither the Company
nor any of its Restricted Subsidiaries (a) provides credit support of any kind
(including any undertaking, agreement or instrument that would constitute
Indebtedness), (b) is directly or indirectly liable (as a guarantor or
otherwise), or (c) constitutes the lender; (ii) no default with respect to which
(including any rights that the holders thereof may have to take enforcement
action against an Unrestricted Subsidiary) would permit (upon notice, lapse of
time or both) any holder of any other Indebtedness (other than the New Notes
being offered hereby) of the Company or any of its Restricted Subsidiaries to
declare a default on such other Indebtedness or cause the payment thereof to be
accelerated or payable prior to its stated maturity; and (iii) as to which the
lenders have been notified in writing that they will not have any recourse to
the stock or assets of the Company or any of its Restricted Subsidiaries.
"Obligations" means any principal, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable under
the documentation governing any Indebtedness.
"Permitted Business" means any of the businesses and any other businesses
related to the businesses engaged in by the Company and its respective
Restricted Subsidiaries on the date of the Indenture.
"Permitted Investments" means (a) any Investment in the Company or in a
Wholly Owned Restricted Subsidiary of the Company that is engaged in a Permitted
Business; (b) any Investment in Cash Equivalents; (c) any Investment by the
Company or any Restricted Subsidiary of the Company in a Person, if as a result
of such Investment (i) such Person becomes a Wholly Owned Restricted Subsidiary
of the Company that is engaged in a Permitted Business or (ii) such Person is
merged, consolidated or amalgamated with or into, or transfers or conveys
substantially all of its assets to, or is liquidated into, the Company or a
Wholly Owned Restricted Subsidiary of the Company that is engaged in a Permitted
Business; (d) any Restricted Investment made as a result of the receipt of
non-cash consideration from an Asset Sale that was made pursuant to and in
compliance with the covenant described above under the caption "-- Repurchase at
the Option of Holders -- Asset Sales"; (e) any acquisition of assets solely in
exchange for the issuance of Equity Interests (other than Disqualified Stock) of
the Company; (f) loans and advances made after the date of the Indenture to
Holberg Industries, Inc. not to exceed $10.0 million at any time outstanding;
(g) loans and advances made after the date of the Indenture to NEHC not to
exceed $10.0 million at any time outstanding; and (h) other Investments made
after the date of the Indenture in any Person having an aggregate fair market
value (measured on the date each such Investment was made and without giving
effect to subsequent changes in value), when taken together with all other
Investments made pursuant to this clause (h) that are at the time outstanding,
not to exceed $10.0 million.
"Permitted Liens" means (i) Liens securing Indebtedness under the Credit
Facility that was permitted by the terms of the Indenture to be incurred; (ii)
Liens in favor of the Company; (iii) Liens on property of a Person existing at
the time such Person is merged into or consolidated with the Company or any
Restricted Subsidiary of the Company, provided that such Liens were in existence
prior to the contemplation of such merger or consolidation and do not extend to
any assets other than those of the Person merged into or consolidated with the
Company; (iv) Liens on property existing at the time of acquisition thereof by
the Company or any Restricted Subsidiary of the Company, provided that such
Liens were in existence prior to the contemplation of such acquisition; (v)
Liens to secure the performance of statutory obligations, surety or appeal
bonds, performance bonds or other obligations of a like nature incurred in the
ordinary course of business; (vi) Liens existing on the date of the Indenture;
(vii) Liens for taxes, assessments or governmental charges or claims that are
not yet delinquent or that are being contested in good faith by appropriate
proceedings promptly instituted and diligently concluded, provided that any
reserve or other appropriate provision as shall be required in conformity with
GAAP
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shall have been made therefor; (viii) Liens incurred in the ordinary course of
business of the Company or any Restricted Subsidiary of the Company with respect
to obligations that do not exceed $5.0 million at any one time outstanding and
that (a) are not incurred in connection with the borrowing of money or the
obtaining of advances or credit (other than trade credit in the ordinary course
of business) and (b) do not in the aggregate materially detract from the value
of the property or materially impair the use thereof in the operation of
business by the Company or such Restricted Subsidiary, and (ix) Liens on assets
of Unrestricted Subsidiaries that (A) secure Non-Recourse Debt of Unrestricted
Subsidiaries or (B) are incurred in connection with a Receivables Transaction.
"Permitted Refinancing Indebtedness" means any Indebtedness of the Company
or any of its Restricted Subsidiaries issued in exchange for, or the net
proceeds of which are used to extend, refinance, renew, replace, defease or
refund other Indebtedness of the Company or any of its Restricted Subsidiaries;
provided that: (i) except for Indebtedness used to extend, refinance, renew,
replace, defease or refund the Credit Facility, the principal amount (or
accreted value, if applicable) of such Permitted Refinancing Indebtedness does
not exceed the principal amount of (or accreted value, if applicable), plus
accrued interest on, the Indebtedness so extended, refinanced, renewed,
replaced, defeased or refunded (plus the amount of reasonable expenses incurred
in connection therewith); (ii) such Permitted Refinancing Indebtedness has a
final maturity date later than the final maturity date of, and has a Weighted
Average Life to Maturity equal to or greater than the Weighted Average Life to
Maturity of, the Indebtedness being extended, refinanced, renewed, replaced,
defeased or refunded; (iii) if the Indebtedness being extended, refinanced,
renewed, replaced, defeased or refunded is subordinated in right of payment to
the New Notes, such Permitted Refinancing Indebtedness has a final maturity date
later than the final maturity date of, and is subordinated in right of payment
to, the New Notes on terms at least as favorable to the holders of New Notes as
those contained in the documentation governing the Indebtedness being extended,
refinanced, renewed, replaced, defeased or refunded; and (iv) such Indebtedness
is incurred either by the Company or by the Restricted Subsidiary who is the
obligor on the Indebtedness being extended, refinanced, renewed, replaced,
defeased or refunded.
"Principals" means Holberg Industries, Inc., John V. Holten, Orkla, ASA,
Nebco Evans Distributors, Inc., NEHC, DLJ Merchant Banking, L.P., DLJ
International Partners, C.V., DLJ Offshore Partners, C.V., DLJ Merchant Banking
Funding, Inc., DLJ Merchant Banking Partners II, L.P., DLJ Merchant Banking
Partners II-A, L.P., DLJ Offshore Partners II, C.V., DLJ Diversified Partners,
L.P., DLJ Diversified Partners-A, L.P., DLJ Millennium Partners, L.P., DLJ
Millennium Partners-A, L.P., DLJMB Funding II, Inc., DLJ First ESC LLC, DLJ EAB
Partners, L.P. and UK Investment Plan 1997 Partners.
"Public Equity Offering" means a public offering of Equity Interests (other
than Disqualified Stock) of (i) the Company; or (ii) NEHC to the extent the net
proceeds thereof are contributed to the Company as a capital contribution, that,
in each case, results in the net proceeds to the Company of at least $25.0
million.
"Receivables" means, with respect to any Person or entity, all of the
following property and interests in property of such Person or entity, whether
now existing or existing in the future or hereafter acquired or arising: (i)
accounts, (ii) accounts receivable incurred in the ordinary course of business,
including, without limitation, all rights to payment created by or arising from
sales of goods, leases of goods or the rendition of services, no matter how
evidenced, whether or not earned by performance, (iii) all rights to any goods
or merchandise represented by any of the foregoing after creation of the
foregoing, including, without limitation, returned or repossessed goods, (iv)
all reserves and credit balances with respect to any such accounts receivable or
account debtors, (v) all letters of credit, security or guarantees for any of
the foregoing, (vi) all insurance policies or reports relating to any of the
foregoing, (vii) all collection or deposit accounts relating to any of the
foregoing, (viii) all proceeds of the foregoing and (ix) all books and records
relating to any of the foregoing.
"Receivables Subsidiary" means an Unrestricted Subsidiary exclusively
engaged in Receivables Transactions and activities related thereto; provided,
however, that (i) at no time shall the Company and
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its Subsidiaries have more than one Receivables Subsidiary and (ii) all
Indebtedness or other borrowings of such Unrestricted Subsidiary shall be
Non-Recourse Debt.
"Receivables Transaction" means (i) the sale or other disposition to a
third party of Receivables or an interest therein, or (ii) the sale or other
disposition of Receivables or an interest therein to a Receivables Subsidiary
followed by a financing transaction in connection with such sale or disposition
of such Receivables (whether such financing transaction is effected by such
Receivables Subsidiary or by a third party to whom such Receivables Subsidiary
sells such Receivables or interests therein); provided that in each of the
foregoing, the Company or its Subsidiaries receive at least 80% of the aggregate
principal amount of any Receivables financed in such transaction.
"Regulation S" means Regulation S promulgated under the Securities Act.
"Regulation S Global Notes" means the Regulation S Temporary Global Notes
or the Regulation S Permanent Global Notes as applicable.
"Regulation S Permanent Global Notes" means the permanent global Notes that
are deposited with and registered in the name of the Depository or its nominee,
representing a series of Notes sold in reliance on Regulation S.
"Regulation S Temporary Global Notes" means the temporary global Notes that
are deposited with and registered in the name of the Depository or its nominee,
representing a series of Notes sold in reliance on Regulation S.
"Related Party" with respect to any Principal means (A) any controlling
stockholder, 80% (or more) owned Subsidiary, or spouse or immediate family
member (in the case of an individual) of such Principal or (B) any trust,
corporation, partnership or other entity, the beneficiaries, stockholders,
partners, owners or Persons beneficially holding an 80% or more controlling
interest of which consist of such Principal and/or such other Persons referred
to in the immediately preceding clause (A).
"Reorganization Securities" means securities distributed to the holders of
the New Notes in an Insolvency or Liquidation Proceeding pursuant to a plan of
reorganization consented to by each class of the Senior Debt, but only if all of
the terms and conditions of such securities (including, without limitation,
term, tenor, interest, amortization, subordination, standstills, covenants and
defaults) are at least as favorable (and provide the same relative benefits) to
the holders of Senior Debt and to the holders of any security distributed in
such Insolvency or Liquidation Proceeding on account of any such Senior Debt as
the terms and conditions of the New Notes and the Indenture are, and provide to
the holders of Senior Debt.
"Representative" means the Trustee, agent or representative for any Senior
Debt.
"Restricted Investment" means an Investment other than a Permitted
Investment.
"Restricted Subsidiary" of a Person means any Subsidiary of the referent
Person that is not an Unrestricted Subsidiary.
"Rule 144A" means Rule 144A promulgated under the Securities Act.
"Rule 144A Global Note" means a permanent global note that is deposited
with and registered in the name of the Depository or its nominee, representing a
series of Notes sold in reliance on Rule 144A.
"Senior Debt" means (i) all Indebtedness outstanding under the Credit
Facility, including any Guarantees thereof and all Hedging Obligations with
respect thereto, (ii) any other Indebtedness permitted to be incurred by the
Company under the terms of the Indenture, unless the instrument under which such
Indebtedness is incurred expressly provides that it is on a parity with or
subordinated in right of payment to the New Notes and (iii) all Obligations with
respect to the foregoing. Notwithstanding anything to the contrary in the
foregoing, Senior Debt will not include (w) any liability for federal, state,
local or other taxes owed or owing by the Company, (x) any Indebtedness of the
Company to any of its
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Subsidiaries or other Affiliates, (y) any trade payables or (z) any Indebtedness
that is incurred in violation of the Indenture.
"Stated Maturity" means, with respect to any installment of interest or
principal on any series of Indebtedness, the date on which such payment of
interest or principal was scheduled to be paid in the original documentation
governing such Indebtedness, and shall not include any contingent obligations to
repay, redeem or repurchase any such interest or principal prior to the date
originally scheduled for the payment thereof.
"Subsidiary" means, with respect to any Person, (i) any corporation,
association or other business entity of which more than 50% of the total voting
power of shares of Capital Stock entitled (without regard to the occurrence of
any contingency) to vote in the election of directors, managers or trustees
thereof is at the time owned or controlled, directly or indirectly, by such
Person or one or more of the other Subsidiaries of that Person (or a combination
thereof) and (ii) any partnership (a) the sole general partner or the managing
general partner of which is such Person or a Subsidiary of such Person or (b)
the only general partners of which are such Person or of one or more
Subsidiaries of such Person (or any combination thereof).
"Subsidiary Guarantors" means all direct and indirect Restricted
Subsidiaries of the Senior Subordinated Notes.
"Unrestricted Subsidiary" means (i) any Subsidiary that is designated by
the Board of Directors as an Unrestricted Subsidiary pursuant to a Board
Resolution; but only to the extent that such Subsidiary: (a) has no Indebtedness
other than Non-Recourse Debt; (b) is not party to any agreement, contract,
arrangement or understanding with the Company or any Restricted Subsidiary of
the Company unless the terms of any such agreement, contract, arrangement or
understanding are no less favorable to the Company or such Restricted Subsidiary
than those that might be obtained at the time from Persons who are not
Affiliates of the Company; (c) is a Person with respect to which neither the
Company nor any of its Restricted Subsidiaries has any direct or indirect
obligation (x) to subscribe for additional Equity Interests or (y) to maintain
or preserve such Person's financial condition or to cause such Person to achieve
any specified levels of operating results; (d) has not guaranteed or otherwise
directly or indirectly provided credit support for any Indebtedness of the
Company or any of its Restricted Subsidiaries; and (e) has at least one director
on its board of directors that is not a director or executive officer of the
Company or any of its Restricted Subsidiaries and has at least one executive
officer that is not a director or executive officer of the Company or any of its
Restricted Subsidiaries. Any such designation by the Board of Directors shall be
evidenced to the Trustee by filing with the Trustee a certified copy of the
Board Resolution giving effect to such designation and an Officers' Certificate
certifying that such designation complied with the foregoing conditions and was
permitted by the covenant described above under the caption "Certain
Covenants -- Restricted Payments." If, at any time, any Unrestricted Subsidiary
would fail to meet the foregoing requirements as an Unrestricted Subsidiary, it
shall thereafter cease to be an Unrestricted Subsidiary for purposes of the
Indenture and any Indebtedness of such Subsidiary shall be deemed to be incurred
by a Restricted Subsidiary of the Company as of such date (and, if such
Indebtedness is not permitted to be incurred as of such date under the covenant
described under the caption "Incurrence of Indebtedness and Issuance of
Preferred Stock," the Company shall be in default of such covenant). The Board
of Directors of the Company may at any time designate any Unrestricted
Subsidiary to be a Restricted Subsidiary; provided that such designation shall
be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of the
Company of any outstanding Indebtedness of such Unrestricted Subsidiary and such
designation shall be permitted only if (i) such Indebtedness is permitted under
the covenant described under the caption "Certain Covenants -- Incurrence of
Indebtedness and Issuance of Preferred Stock," and (ii) no Default or Event of
Default would be in existence following such designation.
"Voting Stock" of any Person as of any date means the Capital Stock of such
Person that is at the time entitled to vote in the election of the Board of
Directors of such Person.
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"Weighted Average Life to Maturity" means, when applied to any Indebtedness
at any date, the number of years obtained by dividing (i) the sum of the
products obtained by multiplying (a) the amount of each then remaining
installment, sinking fund, serial maturity or other required payments of
principal, including payment at final maturity, in respect thereof, by (b) the
number of years (calculated to the nearest one-twelfth) that will elapse between
such date and the making of such payment, by (ii) the then outstanding principal
amount of such Indebtedness.
"Wholly Owned Subsidiary" of any Person means a Subsidiary of such Person
all of the outstanding Capital Stock or other ownership interests of which
(other than directors' qualifying shares) shall at the time be owned by such
Person or by one or more Wholly Owned Subsidiaries of such Person and one or
more Wholly Owned Subsidiaries of such Person.
BOOK-ENTRY, DELIVERY AND FORM
The Senior Notes and Senior Subordinated Notes are each represented by one
or more fully-registered global notes without interest coupons (each a "Global
Senior Note" or "Global Subordinated Note," as the case may be; collectively,
the "Global Note"). Each Global Note was deposited upon issuance with the
Depository Trust Company (the "DTC") and is registered in the name of DTC or its
nominee (the "Global Note Registered Owner"), in each case for credit to an
account of a direct or indirect participant as described below. Except as set
forth below, each Global Note may be transferred, in whole and not in part, only
to another nominee of the DTC or to a successor of the DTC or its nominee. See
"-- Exchange of Book-Entry Notes for Certificated Notes."
The Notes may be presented for registration of transfer and exchange at the
offices of the Registrar.
DEPOSITORY PROCEDURES
DTC has advised the Company that DTC is a limited-purpose trust company
created to hold securities for its participating organizations (collectively,
the "Participants") and to facilitate the clearance and settlement of
transactions in those securities between Participants through electronic
book-entry changes in accounts of Participants. The Participants include
securities brokers and dealers (including the Initial Purchaser), banks, trust
companies, clearing corporations and certain other organizations. Access to
DTC's system is also available to other entities such as banks, brokers, dealers
and trust companies that clear through or maintain a custodial relationship with
a Participant, either directly or indirectly (collectively, the "Indirect
Participants"). Persons who are not Participants may beneficially own securities
held by or on behalf of DTC only through the Participants or Indirect
Participants. The ownership interest and transfer of ownership interest of each
actual purchaser of each security held by or on behalf of DTC are recorded on
the records of the Participants and Indirect Participants.
DTC has also advised the Company that pursuant to procedures established by
it, (i) upon deposit of the Global Notes, DTC will credit the accounts of
Participants designated by the Initial Purchaser with portions of the principal
amount of Global Notes and (ii) ownership of such interests in the Global Notes
will be shown on, and the transfer ownership thereof will be effected only
through, records maintained by DTC (with respect to Participants) or by
Participants and the Indirect Participants (with respect to other owners of
beneficial interests in the Global Notes).
EXCEPT AS DESCRIBED BELOW, OWNERS OF INTERESTS IN THE GLOBAL NOTES DO NOT
HAVE NOTES REGISTERED IN THEIR NAMES, DO NOT RECEIVE PHYSICAL DELIVERY OF NOTES
IN CERTIFICATED FORM AND ARE NOT CONSIDERED THE REGISTERED OWNERS OR HOLDERS
THEREOF UNDER THE INDENTURE FOR ANY PURPOSE.
Payments in respect of the principal and premium and Liquidated Damages, if
any, and interest on a Global Note registered in the name of DTC or its nominee
are payable by the Trustee to DTC or its nominee in its capacity as the
registered holder under the Indenture. Under the terms of each Indenture, the
Company and the Trustee will treat the persons in whose names the Notes,
including the Global
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Notes, are registered as the owners thereof for the purpose of receiving such
payments and for any and all other purposes whatsoever. Consequently, none of
the Company, the Trustee nor any agent of the Company or the Trustee has or will
have any responsibility or liability for (i) any aspect of DTC's records or any
Participant's or Indirect Participant's records relating to or payments made on
account of beneficial ownership interests in the Global Notes, or for
maintaining, supervising or reviewing any of DTC's records or any Participant's
or Indirect Participant's records relating to the beneficial ownership interests
in the Global Notes or (ii) any other matter relating to the actions and
practices of DTC or any of its Participants or Indirect Participants.
DTC has advised the Company that its current practice, upon receipt of any
payment in respect of securities such as the Notes (including principal and
interest), is to credit the accounts of the relevant Participants with the
payment on the payment date, in amounts proportionate to their respective
holdings in principal amount of beneficial interests in the relevant security
such as the Global Notes as shown on the records of DTC. Payments by
Participants and the Indirect Participants to the beneficial owners of Notes are
governed by standing instructions and customary practices and are not the
responsibility of DTC, the Trustee or the Company. Neither the Company nor the
Trustee is liable for any delay by DTC or its Participants in identifying the
beneficial owners of the Notes, and the Company and the Trustee may conclusively
rely on and are protected in relying on instructions from DTC or its nominee as
the registered owner of the Notes for all purposes.
DTC has advised the Company that it will take any action permitted to be
taken by a holder of Notes only at the direction of one or more Participants to
whose account DTC interests in the Global Notes are credited and only in respect
of such portion of the aggregate principal amount of the Notes as to which such
Participant or Participants have given direction. However, if there is an Event
of Default under the Notes, DTC reserves the right to exchange Global Notes for
legended Notes in certificated form, and to distribute such Notes to its
Participants.
The information in this section concerning DTC and its book-entry system
has been obtained from sources that the Company believes to be reliable, but the
Company takes no responsibility for the accuracy thereof.
Although DTC has agreed to the foregoing procedures to facilitate transfers
of interests in the Global Notes among Participants in DTC, it is under no
obligation to perform or to continue to perform such procedures, and such
procedures may be discontinued at any time. None of the Company, the Initial
Purchaser or the Trustee will have any responsibility for the performance by
DTC, or its Participants or indirect Participants of its obligations under the
rules and procedures governing their operations.
EXCHANGE OF BOOK-ENTRY NOTES FOR CERTIFICATED NOTES
A Global Note is exchangeable for definitive Notes in registered
certificated form if (i) DTC (x) notifies the Company that it is unwilling or
unable to continue as depositary for the Global Note and the Company thereupon
fails to appoint a successor depositary or (y) has ceased to be a clearing
agency registered under the Exchange Act, (ii) the Company, at its option,
notifies the Trustee in writing that it elects to cause the issuance of the
Notes in certificated form or (iii) there shall have occurred and be continuing
to occur a Default or an Event of Default with respect to the Notes. In
addition, beneficial interests in a Global Note may be exchanged for
certificated Notes upon request but only upon at least 20 days' prior written
notice given to the Trustee by or on behalf of DTC in accordance with customary
procedures. In all cases, certificated Notes delivered in exchange for any
Global Note or beneficial interest therein are registered in the names, and
issued in any approved denominations, requested by or on behalf of the
depositary (in accordance with its customary procedures).
A Note in definitive form will be issued upon the resale, pledge or other
transfer of any Note or interest therein to any person or entity that does not
participate in the Depository. Transfers of certificated Notes may be made only
by presentation of Notes, duly endorsed, to the Trustees for registration of
transfer on the Note Register maintained by the Trustees for such purposes.
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The information in this section concerning the Depository and the
Depository's book-entry system has been obtained from sources that the Company
believes to be reliable, but the Company takes no responsibility for the
accuracy thereof.
CERTIFICATED NOTES
Subject to certain conditions, any person having a beneficial interest in
the Global Note may, upon request to the Trustee, exchange such beneficial
interest for Notes in the form of Certificated Notes. Upon any such issuance,
the Trustee is required to register such Certificated Notes in the name of, and
cause the same to be delivered to, such person or persons (or the nominee of any
thereof). In addition, if (i) the Company notifies the Trustee in writing that
the DTC is no longer willing or able to act as a depositary and the Company is
unable to locate a qualified successor within 90 days or (ii) the Company, at
its option, notifies the Trustee in writing that it elects to cause the issuance
of Notes in the form of Certificated Notes under the Indenture, then, upon
surrender by the Global Note Holder of its Global Note, Notes in such form will
be issued to each person that the Global Note Holder and the DTC identify as
being the beneficial owner of the related Notes.
Neither the Company nor the Trustee is liable for any delay by the Global
Note Holder or the DTC in identifying the beneficial owners of Notes and the
Company and the Trustee may conclusively rely on, and are protected in relying
on, instructions from the Global Note Holder or the DTC for all purposes.
SAME DAY SETTLEMENT AND PAYMENT
The Indentures require that payments in respect of the Notes represented by
the Global Note (including principal, premium, if any, interest and Liquidated
Damages, if any) be made by wire transfer of immediately available next day
funds to the accounts specified by the Global Note Holder. With respect to
Certificated Notes, the Company will make all payments of principal, premium, if
any, interest and Liquidated Damages, if any, by wire transfer of immediately
available funds to the accounts specified by the holders thereof or, if no such
account is specified, by mailing a check to each such Holder's registered
address. The Company expects secondary trading in the Certificated Notes to be
settled in immediately available funds.
DESCRIPTION OF CERTAIN FEDERAL INCOME TAX CONSEQUENCES
The following discussion is a summary of certain U.S. federal income tax
considerations relevant to the purchase, ownership and disposition of the Notes
by the holders thereof. This summary does not purport to be a complete analysis
of all the potential federal income tax effects relating to the purchase,
ownership and disposition of the Notes. There can be no assurance that the U.S.
Internal Revenue Service will take a similar view of such consequences. Further,
the discussion does not address all aspects of taxation that may be relevant to
particular purchasers in light of their individual circumstances (including the
effect of any foreign, state or local laws) or to certain types of purchasers
(including dealers in securities, traders in securities who elect to apply a
market-to-market accounting method insurance companies, financial institutions,
persons that hold Notes that are a hedge or that are hedged against currency
risks or that are part of a straddle or conversion transaction, persons whose
functional currency is not the U.S. dollar and tax-exempt entities) subject to
special treatment under U.S. federal income tax laws. The discussion below
assumes that the Notes are held as capital assets.
The discussion of the U.S. federal income tax consequences set forth below
is based upon currently existing provisions of the Internal Revenue Code of
1986, as amended (the "Code"), judicial decisions, and administrative
interpretations. Because individual circumstances may differ, each prospective
purchaser of the Notes is strongly urged to consult its own tax advisor with
respect to its particular tax situation and the particular tax effects of any
state, local, non-U.S. or other tax laws and possible changes in the tax laws.
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As used herein, the term "U.S. Holder" means a beneficial owner of a Note
who or which is for U.S. federal income tax purposes either (i) a citizen or
resident of the U.S., (ii) a corporation, partnership or other entity created or
organized in or under the laws of the U.S. or of any political subdivision
thereof, (iii) an estate or trust the income of which is subject to U.S. federal
income taxation regardless of its source or (iv) a trust if a court within the
U.S. is able to exercise primary supervision over the administration of the
trust and one or more U.S. fiduciaries have the authority to control all
substantial decisions of the trust. The term also includes certain former
citizens of the U.S. whose income and gain on the Notes will be subject to U.S.
taxation. As used herein, the term "U.S. Alien Holder" means a beneficial owner
of a Note that is not a U.S. Holder.
PAYMENTS OF INTEREST
Interest paid on a Note will generally be taxable to a U.S. Holder as
ordinary interest income at the time it accrues or is received in accordance
with the U.S. Holder's method of accounting for federal income tax purposes.
MARKET DISCOUNT AND PREMIUM
If a U.S. Holder that acquires a Note has a tax basis in the Note that is
less than its "stated redemption price at maturity," the amount of the
difference will be treated as "market discount" for U.S. federal income tax
purposes, unless such difference is less than a specified de minimis amount.
Under the market discount rules of the Code, a U.S. Holder will be required to
treat any principal payment on, or any gain on the sale, exchange, retirement or
other disposition of, a Note as ordinary income to the extent of any accrued
market discount that has not previously been included in income. Market discount
generally accrues on a straight-line basis over the remaining term of a Note. A
U.S. Holder may not be allowed to deduct immediately all or a portion of the
interest expense on any indebtedness incurred or continued to purchase or to
carry such Note. A U.S. Holder may elect to include market discount in income
currently as it accrues (either on a straight-line basis or, if the United
States Holder so elects, on a constant yield basis), in which case the interest
deferral rule set forth in the preceding sentence will not apply. Such an
election will apply to all bonds acquired by the U.S. Holder on or after the
first day of the first taxable year to which such election applies and may be
revoked only with the consent of the Internal Revenue Service.
If a U.S. Holder purchases a Note for an amount that is greater than the
sum on all amounts payable on the Note after the purchase date, other than
stated interest, such holder will be considered to have purchased such Note with
"amortizable bond premium" equal in amount to such excess, and may elect (in
accordance with applicable Code provisions) to amortize such premium, using a
constant yield method over the remaining term of the Note. The amount amortized
in any year will be treated as a reduction of the U.S. Holder's interest income
from the Note in such year. A U.S. Holder that elects to amortize bond premium
must reduce its tax basis in the Note by the amount of the premium amortized in
any year. An election to amortize bond premium applies to all taxable debt
obligations then owned and thereafter acquired by the U.S. Holder and may be
revoked only with the consent of the Internal Revenue Service.
SALE, EXCHANGE OR RETIREMENT OF NOTES
Upon the sale, exchange or retirement of a Note, a U.S. Holder will
recognize taxable gain or loss equal to the difference between the amount
realized on the sale, exchange or retirement (not including any amount
attributable to accrued but unpaid interest) and such holder's adjusted tax
basis in the Note. A U.S. Holder's adjusted tax basis in a Note will equal the
cost of the Note to such holder, increased by the amount of any market discount
previously included in income by such holder with respect to such Note and
reduced by any amortized bond premium and any principal payment received by such
holder.
Subject to the discussion of market discount above, gain or loss realized
on the sale, exchange or retirement of a Note by a U.S. Holder will be capital
gain or loss, and will be long-term capital gain or loss if at the time of the
sale, exchange or retirement the Note has been held for more than one year. In
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the case of individual U.S. holders, long-term capital gains are taxed at
preferential rates. The distinction between capital gain or loss and ordinary
income or loss is also relevant for purposes of, among other things, limitations
on the deductibility of capital losses.
TAX CONSEQUENCES TO U.S. ALIEN HOLDERS
Under present U.S. federal income and estate tax law, and subject to the
discussion below concerning backup withholding:
(a) payments of principal or interest on the Notes by the Company or
any paying agent to a beneficial owner of a Note that is a U.S. Alien
Holder will not be subject to U.S. federal withholding tax, provided that,
in the case of interest, (i) such Holder does not own, actually or
constructively, 10% or more of the total combined voting power of all
classes of stock of the Company entitled to vote, (ii) such Holder is not,
for U.S. federal income tax purposes, a controlled foreign corporation
related, directly or indirectly, to the Company through stock ownership,
(iii) such Holder is not a bank receiving interest described in Section
881(c)(3)(A) of the Code, and (iv) the certification requirements under
Section 871(h) or Section 881(c) of the Code and Treasury Regulations
thereunder (summarized below) are met;
(b) a U.S. Alien Holder of a Note will not be subject to U.S. federal
income tax on gains realized on the sale, exchange or other disposition of
such Note, unless (i) such Holder is an individual who is present in the
U.S. for 183 days or more in the taxable year of sale, exchange or other
disposition, and certain conditions are met; (ii) such gain is effectively
connected with the conduct by such Holder of a trade or business in the
U.S. and, if certain tax treaties apply, is attributable to a U.S.
permanent establishment maintained by the U.S. Alien Holder or (iii) the
U.S. Alien Holder is subject to tax pursuant to the Code provisions
applicable to certain U.S. expatriates; and
(c) a Note held by an individual who is not a citizen or resident of
the U.S. at the time of his death will not be subject to U.S. federal
estate tax as a result of such individual's death, provided that, at the
time of such individual's death, the individual does not own, actually or
constructively, 10% or more of the total combined voting power of all
classes of stock of the Company entitled to vote and payments with respect
to such Note would not have been effectively connected with the conduct by
such individual of a trade or business in the U.S.
Sections 871(h) and 881(c) of the Code and currently effective Treasury
Regulations thereunder require that, in order to obtain the exemption from
withholding tax described in paragraph (a) above, either (i) the beneficial
owner of a Note must certify, under penalties of perjury, to the Company or
paying agent, as the case may be, that such owner is a U.S. Alien Holder and
must provide such owner's name and address, and U.S. taxpayer identification
number ("TIN"), if any, or (ii) a securities clearing organization, bank or
other financial institution that holds customers securities in the ordinary
course of its trade or business (a "Financial Institution") and holds the Note
on behalf of the beneficial owner thereof must certify, under penalties of
perjury, to the Company or paying agent, as the case may be, that such
certificate has been received from the beneficial owner by it or by a Financial
Institution between it and the beneficial owner and must furnish the payor with
a copy thereof. A certificate described in this paragraph is effective only with
respect to payments of interest made to the certifying U.S. Alien Holder after
delivery of the certificate in the calendar year of its delivery and the two
immediately succeeding calendar years. Under temporary U.S. Treasury
Regulations, such requirement will be fulfilled if the beneficial owner of a
Note certifies on Internal Revenue Service Form W-8, under penalties of perjury,
that it is a U.S. Alien Holder and provides its name and address, and any
Financial Institution holding the Note on behalf of the beneficial owner files a
statement with the withholding agent to the effect that it has received such a
statement from the beneficial owner (and furnishes the withholding agent with a
copy thereof).
Treasury Regulations released on October 6, 1997 (the "New Regulations")
and effective for payments made after December 31, 1999 will provide alternative
methods for satisfying the certification
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requirement described above. The New Regulations also would require, in the case
of Notes held by a foreign partnership, that (x) the certification be provided
by the partners rather than by the foreign partnership and (y) the partnership
provide certain information, including a United States taxpayer identification
number. A look through rule would apply in the case of tiered partnerships.
If a U.S. Alien Holder of a Note is engaged in a trade or business in the
U.S., and if interest on the Note, or gain realized on the sale, exchange or
other disposition of the Note, is effectively connected with the conduct of such
trade or business and, if certain tax treaties apply, is attributable to a U.S.
permanent establishment maintained by the U.S. Alien Holder, the U.S. Alien
Holder, although exempt from U.S. withholding tax, will generally be subject to
regular U.S. income tax on such interest or gain in the same manner as if it
were a U.S. Holder. In lieu of the certificate described in the preceding
paragraph, such a holder will be required to provide the Company a properly
executed Internal Revenue Service Form 4224 in order to claim an exemption from
withholding tax. In addition, if such U.S. Alien Holder is a foreign
corporation, it may be subject to a branch profits tax equal to 30% (or such
lower rate provided by an applicable treaty) of its effectively connected
earnings and profits for the taxable year, subject to certain adjustments. For
purposes of the branch profits tax, interest on and any gain recognized on the
sale, exchange or other disposition of a Note will be included in the earnings
and profits of such U.S. Alien Holder if such interest or gain is effectively
connected with the conduct by the U.S. Alien Holder of a trade or business in
the U.S. The New Regulations will change some of the withholding reporting
requirements described above, effective for payments made after December 31,
1999, subject to certain grandfathering provisions.
BACKUP WITHHOLDING
Under current U.S. federal income tax law, a 31% backup withholding tax
requirement applies to certain payments of interest on, and the proceeds of a
sale, exchange or redemption of, the Notes.
Backup withholding will generally not apply with respect to payments made
to certain exempt recipients, such as corporations or other tax-exempt entities.
In the case of a non-corporate U.S. Holder, backup withholding will apply only
if such U.S. Holder (i) fails to furnish its TIN, which, for an individual,
would be his Social Security number, (ii) furnishes an incorrect TIN, (iii) is
notified by the Internal Revenue Service that it has failed to properly report
payments of interest and dividends or (iv) under certain circumstances, fails to
certify, under penalties of perjury, that it has furnished a correct TIN and has
not been notified by the Internal Revenue Service that it is subject to backup
withholding for failure to report interest and dividend payments.
In the case of a U.S. Alien Holder, under currently effective Treasury
Regulations, backup withholding will not apply to payments made by the Company
or any paying agent thereof on a Note if such holder has provided the required
certification under penalties of perjury that it is not a U.S. Holder (as
defined above) or has otherwise established an exemption, provided in each case
that the Company or such paying agent, as the case may be, does not have actual
knowledge that the payee is a U.S. Holder.
Under currently effective Treasury Regulations, if payments on a Note are
made to or through a foreign office of a custodian, nominee or other agent
acting on behalf of a beneficial owner of a Note, such custodian, nominee or
other agent acting will not be required to apply backup withholding to such
payments made to such beneficial owner. However, under the New Regulations,
backup withholding may apply to payments made after December 31, 1999 if such
custodian, nominee or other agent has actual knowledge that the payee is a U.S.
Holder.
Under currently effective Treasury Regulations, payments on the sale,
exchange or other disposition of a Note made to or through a foreign office of a
broker generally will not be subject to backup withholding. However, under
proposed Treasury Regulations, backup withholding may apply to payments made
after December 31, 1999 if such broker has actual knowledge that the payee is a
U.S. Holder. In the case of proceeds from a sale of a Note by a U.S. Alien
Holder paid to or through the foreign office of a U.S. broker or a foreign
office of a foreign broker that is (i) a controlled foreign corporation for U.S.
tax purposes or (ii) a person 50% or more of whose gross income for the
three-year period ending with the
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close of the taxable year preceding the year of payment (or for the part of that
period that the broker has been in existence) is effectively connected with the
conduct of a trade or business within the U.S., information reporting is
required unless the broker has documentary evidence in its files that the payee
is not a U.S. person and certain other conditions are met, or the payee
otherwise establishes an exemption. Payments to or through the U.S. office of a
broker will be subject to backup withholding and information reporting unless
the holder certifies, under penalties of perjury, that it is not a U.S. Holder
and that certain other conditions are met or otherwise establishes an exemption.
Holders of Notes should consult their tax advisors regarding the
application of backup withholding in their particular situations, the
availability of an exemption therefrom, the procedure for obtaining such an
exemption, if available, and the impact of the New Regulations on payments made
with respect to Notes after December 31, 1999. Any amounts withheld from payment
under the backup withholding rules will be allowed as a credit against a
Holder's U.S. federal income tax liability and may entitle such holder to a
refund, provided that the required information is furnished to the Internal
Revenue Service.
THE FOREGOING DISCUSSION IS FOR GENERAL INFORMATION AND IS NOT TAX ADVICE.
ACCORDINGLY, EACH PROSPECTIVE HOLDER OF NEW NOTES SHOULD CONSULT ITS OWN TAX
ADVISOR AS TO THE PARTICULAR TAX CONSEQUENCES TO THE PROSPECTIVE HOLDER OF THE
NOTES, INCLUDING THE APPLICABILITY AND EFFECT OF ANY STATE, LOCAL, OR NON-U.S.
INCOME TAX LAWS AND ANY RECENT OR PROSPECTIVE CHANGES IN APPLICABLE TAX LAWS AND
THE EFFECT OF THE NEW REGULATIONS WITH RESPECT TO PAYMENTS MADE AFTER DECEMBER
31, 1999.
PLAN OF DISTRIBUTION
This Prospectus is to be used by DLJ in connection with offers and sales of
the Notes in market-making transactions effected from time to time. DLJ may act
as a principal or agent in such transactions, including as agent for the
counterparty when acting as principal or as agent for both counterparties, and
may receive compensation in the form of discounts and commissions, including
from both counterparties when it acts as agent for both. Such sales will be made
at prevailing market prices at the time of sale, at prices related thereto or at
negotiated prices.
DLJMB, an affiliate of DLJ, and certain of its affiliates beneficially own
approximately 30% (subject to adjustment as defined in agreement) of the common
stock of NEHC through warrants. Peter T. Grauer, a principal of DLJ, is a member
of the Board of Directors of NEHC and the Company; Benoit Jamar, a principal of
DLJ, is a member of the Board of Directors of NEHC and the Company. Further, DLJ
Capital Funding, Inc., an affiliate of DLJ, is acting as documentation agent in
connection with the New Credit Facility for which it received certain customary
fees and expenses. In addition, DLJ received merger advisory fees of $4.0
million and $3.25 million in cash from the Company in connection with the
acquisitions of PFS and ProSource, respectively. DLJ has informed the Company
that it does not intend to confirm sales of the Notes to any accounts over which
it exercises discretionary authority without the prior specific written approval
of such transactions by the customer.
The Company has been advised by the DLJ that, subject to applicable laws
and regulations, DLJ currently intends to continue to make a market in the
Notes. However, the DLJ is not obligated to do so and any such market-making may
be interrupted or discontinued at any time without notice. In addition, such
market-making activity will be subject to the limits imposed by the Securities
Act and the Exchange Act. There can be no assurance that an active trading
market will develop or be sustained. See "Risk Factors -- Trading Market for the
Notes."
DLJ has, from time to time, provided investment banking and other financial
advisory services for which they have received customary compensation, including
fees received in connection with the offering of the Notes.
DLJ has, from time to time, provided investment banking and other financial
advisory services to the Company in the past for which they have received
customary compensation, including fees received in
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connection with the offering of the Notes, and may provide such services and
financial advisory services to the Company in the future. DLJ acted as purchaser
in connection with the initial sale of the Senior Notes and the Senior
Subordinated Notes and received underwriting discounts in connection therewith.
See "Certain Relationships and Related Party Transactions."
DLJ and the Company have entered into Registration Rights Agreements with
respect to the use by DLJ of this Prospectus. Pursuant to such agreements, the
Company agreed to bear all registration expenses incurred under such agreement,
and the Company agreed to indemnify DLJ against certain liabilities, including
liabilities under the Securities Act.
LEGAL MATTERS
Certain legal matters in connection with the Notes offered hereby were
passed upon for the Company by Wachtell, Lipton, Rosen & Katz, New York, New
York.
EXPERTS
The consolidated financial statements of the Company as of December 27,
1997 and December 26, 1998 and for each of the three years in the period ended
December 26, 1998, appearing in this Prospectus and in the Registration
Statement, and the financial statement schedule for each of the three years in
the period ended December 26, 1998 included in the Registration Statement have
been audited by Ernst & Young LLP ("Ernst & Young"), independent auditors, as
set forth in their report thereon appearing elsewhere herein, and are included
in reliance upon such report given upon the authority of such firm as experts in
accounting and auditing.
The financial statements of PFS (A Division of PepsiCo, Inc. Held for Sale)
as of December 27, 1995 and December 25, 1996 and for each of the years in the
three-year period ended December 25, 1996 appearing in this Prospectus and in
the Registration Statement have been included herein and in the Registration
Statement and in reliance upon the report of KPMG LLP, independent certified
public accountants, appearing elsewhere herein and upon the authority of said
firm as experts in accounting and auditing.
The financial statements of ProSource, Inc. as of December 28, 1996 and
December 27, 1997 and for each of the years in the three-year period ended
December 27, 1997 appearing in this Prospectus and in the Registration Statement
have been included herein and in the Registration Statement and in reliance upon
the report of KPMG LLP, independent certified public accountants, appearing
elsewhere herein and upon the authority of said firm as experts in accounting
and auditing.
115
<PAGE> 118
INDEX OF CERTAIN DEFINED TERMS
<TABLE>
<CAPTION>
PAGE NO.
--------
<S> <C>
Accounts Receivable Program........ 51
Affiliate Transaction.............. 63
AmeriServe Funding................. 51
AmeriServ.......................... 2
AmeriServe......................... 4
Applicable Reserve Ratio........... 52
Asset Sale Offer................... 58
Bank of America NT&SA.............. 51
Base Amount........................ 52
Calculation Date................... 73
Carrying Cost Receivables
Reserve.......................... 52
Change of Control.................. 70
Change of Control Offer............ 56
Change of Control Payment.......... 56
Change of Control Payment Date..... 56
Class B Common Stock............... 48
Code............................... 110
Company............................ 4
Covenant Defeasance................ 67
Credit Facility.................... 52
Distribution Agreement............. 4
DLJ................................ 64
DLJMB.............................. 48
DLJMBII............................ 50
DLJSC.............................. 42
DTC................................ 108
Ernst & Young...................... 115
Excess Proceeds.................... 58
Exchange Act....................... 2
Financial Institution.............. 112
Global Note........................ 108
Global Note Registered Owner....... 108
Global Senior Note................. 108
Global Subordinated Note........... 108
Guarantors......................... 52
HWPI............................... 30
IDA................................ 40
Incorporated....................... 48
Indentures......................... 3
</TABLE>
<TABLE>
<CAPTION>
PAGE NO.
--------
<S> <C>
Indirect Participants.............. 108
Invested Amount.................... 51
Legal Defeasance................... 67
Named Executive Officers........... 42
Nebraska AmeriServe................ 2
NED................................ 30
Net Eligible Receivables........... 52
New Regulations.................... 112
Note Trustees...................... 2
Old NEHC Notes..................... 50
Options............................ 44
Participants....................... 108
Payment Blockage Period............ 81
Payment Default.................... 66
Payment Notice..................... 81
Permitted Debt..................... 60
PFS Acquisition.................... 4
Post............................... 2
Post Holdings...................... 50
ProSource.......................... 4
Purchasers......................... 51
Receivables........................ 51
Restricted Payments................ 58
Securities Act..................... 3
Senior Note Guarantees............. 7
Senior Note Indenture.............. 2
Senior Note Trustee................ 2
Senior Subordinated Note
Guarantees....................... 8
Senior Subordinated Note
Indenture........................ 3
Senior Subordinated Note Trustee... 2
SERP............................... 46
SKUs............................... 34
Stock Option Plan.................. 44
Subsidiary Guarantors.............. 7
TIN................................ 112
Trust.............................. 51
Trust Indenture Act................ 54
U.S. Alien Holder.................. 111
U.S. Holder........................ 111
</TABLE>
116
<PAGE> 119
INDEX TO UNAUDITED PRO FORMA CONSOLIDATED FINANCIAL STATEMENTS
<TABLE>
<CAPTION>
PAGE
<S> <C>
AMERISERVE FOOD DISTRIBUTION, INC.
Unaudited Pro Forma Consolidated Statement of Operations
for the Fiscal Year 1998............................... P-2
Notes to Unaudited Pro Forma Consolidated Statement of
Operations for Fiscal Year 1998........................ P-3
</TABLE>
P-1
<PAGE> 120
AMERISERVE FOOD DISTRIBUTION, INC.
UNAUDITED PRO FORMA CONSOLIDATED STATEMENT OF OPERATIONS
FOR THE YEAR ENDED DECEMBER 26, 1998
(IN THOUSANDS)
The following sets forth the Unaudited Pro Forma Consolidated Statement of
Operations of AmeriServe Food Distribution, Inc. after giving effect to the
ProSource Acquisition as if such acquisition had been consummated at the
beginning of fiscal year 1998. The Unaudited Pro Forma Statement of Operations
of the Company does not purport to present the results of operations of the
Company had the acquisition occurred on the date indicated, nor is it
necessarily indicative of the results of operations which may be expected to
occur in the future.
<TABLE>
<CAPTION>
HISTORICAL
PROSOURCE
DECEMBER 28,
1997
THROUGH PRO FORMA
HISTORICAL MAY 21, ADJUSTMENTS
AMERISERVE 1998 FOR ACQUISITION PRO FORMA
---------- ------------ --------------- ----------
<S> <C> <C> <C> <C>
Net sales............................... $7,420,951 $1,660,073 $ 2,450(a) $9,083,474
Cost of goods sold...................... 6,740,926 1,528,693 -- 8,269,619
---------- ---------- ------- ----------
Gross profit............................ 680,025 131,380 2,450 813,855
---------- ---------- ------- ----------
Operating expenses:
Distribution, selling and
administrative..................... 561,985 123,019 685,004
Depreciation.......................... 31,129 3,955 (2,020)(b) 33,064
Amortization.......................... 34,074 901 1,847(c) 36,822
Restructuring and other unusual
costs.............................. 90,087 -- 90,087
---------- ---------- ------- ----------
Total operating expenses................ 717,275 127,875 (173) 844,977
---------- ---------- ------- ----------
Operating income (loss)................. (37,250) 3,505 2,623 (31,122)
Interest expense, net................... (83,476) (5,258) 1,078(d) (87,656)
Loss on sale of accounts receivable..... (24,906) -- (6,446)(e) (31,352)
---------- ---------- ------- ----------
Loss before income taxes................ (145,632) (1,753) (2,745) (150,130)
Provision (credit) for income taxes..... 1,341 (685) 770(f) 1,426
---------- ---------- ------- ----------
Net loss................................ $ (146,973) $ (1,068) $(3,515) $ (151,556)
========== ========== ======= ==========
</TABLE>
P-2
<PAGE> 121
AMERISERVE FOOD DISTRIBUTION, INC.
UNAUDITED PRO FORMA CONSOLIDATED STATEMENT OF OPERATIONS
FOR YEAR ENDED DECEMBER 26, 1998
(IN THOUSANDS)
(a) Represents amortization of liability arising in ProSource purchase
price allocation for below market customer contracts.
(b) Represents reduction of depreciation expense as a result of the
impairment of certain assets, due primarily to the planned closures of
certain warehouse facilities, related to the ProSource acquisition as
follows:
<TABLE>
<S> <C>
ProSource warehouse facilities.............................. $2,145
AmeriServe warehouse facilities............................. 549
Depreciation reduction in historical AmeriServe............. (674)
------
$2,020
======
</TABLE>
(c) Represents the additional amortization of goodwill and other
intangibles to the purchase price allocation for ProSource as follows:
<TABLE>
<S> <C>
Amortization related to acquired intangibles............... $ 3,681
Reduction in amortization due to writedowns of existing
ProSource intangibles.................................... (1,030)
Additional amortization in historical AmeriServe........... (804)
-------
$ 1,847
=======
</TABLE>
(d) Represents decrease to net interest expense as follows:
<TABLE>
<S> <C>
Elimination of interest income on excess cash used in the
ProSource acquisition.................................... $(4,450)
Elimination of interest on borrowings against credit
facilities replaced by discount on additional proceeds
from sales of accounts receivable (see note e)........... 308
Elimination of interest expense in historical ProSource.... 5,220
-------
$ 1,078
=======
</TABLE>
(e) Represents discount on additional proceeds from sales of accounts
receivable as follows:
<TABLE>
<S> <C>
$125 million at time of ProSource acquisition (7% for 5
months)................................................... $3,646
$80 million received in July 1998 (7% for 6 months)......... 2,800
------
$6,446
======
</TABLE>
(f) Represents elimination of credit for federal income taxes in historical
ProSource, netting a current provision for state income taxes of $85.
The Company's net deferred tax assets are offset by a valuation
allowance, reflecting the Company's significant net operating loss
carryforward position.
P-3
<PAGE> 122
INDEX TO HISTORICAL FINANCIAL STATEMENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
AMERISERVE FOOD DISTRIBUTION, INC.
Report of Ernst & Young LLP, Independent Auditors......... F-2
Consolidated Balance Sheets as of December 27, 1997 and
December 26, 1998...................................... F-3
Consolidated Statements of Operations for each of the
three fiscal years in the period ended December 26,
1998................................................... F-4
Consolidated Statements of Stockholder's Equity for each
of the three fiscal years in the period ended December
26, 1998............................................... F-5
Consolidated Statements of Cash Flows for each of the
three fiscal years in the period ended December 26,
1998................................................... F-6
Notes to Consolidated Financial Statements................ F-7
Schedule II -- Valuation and Qualifying Accounts.......... F-21
PFS
Report of KPMG LLP, Independent Auditors.................. F-22
Balance Sheets as of December 27, 1995 and December 25,
1996, and as of June 11, 1997 (unaudited).............. F-23
Statements of Income for each of the years in the
three-year period ended December 25, 1996, and for the
six month periods ended June 12, 1996 and June 11, 1997
(unaudited)............................................ F-24
Statements of Divisional Equity for each of the years in
the three-year period ended December 25, 1996, and for
the six month period ended June 11, 1997 (unaudited)... F-25
Statements of Cash Flows for each of the years in the
three-year period ended December 25, 1996, and for the
six month periods ended June 12, 1996 and June 11, 1997
(unaudited)............................................ F-26
Notes to Financial Statements............................. F-27
PROSOURCE, INC.
Independent Auditors' Report.............................. F-32
Consolidated Balance Sheets as of December 28, 1996 and
December 27, 1997...................................... F-33
Consolidated Statements of Operations for each of the
three fiscal years in the period ended December 27,
1997................................................... F-34
Consolidated Statements of Stockholders' Equity for each
of the three fiscal years in the period ended December
27, 1997............................................... F-35
Consolidated Statements of Cash Flows for each of the
three fiscal years in the period ended December 27,
1997................................................... F-36
Notes to Consolidated Financial Statements................ F-38
</TABLE>
F-1
<PAGE> 123
REPORT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
Board of Directors
AmeriServe Food Distribution, Inc.
We have audited the accompanying consolidated balance sheets of AmeriServe
Food Distribution, Inc. (the Company) as of December 27, 1997 and December 26,
1998, and the related consolidated statements of operations, stockholder's
equity, and cash flows for each of the three years in the period ended December
26, 1998. Our audits also included the financial statement schedule listed in
the Index to Historical Financial Statements. These financial statements and
schedule are the responsibility of the Company's management. Our responsibility
is to express an opinion on these financial statements and schedule based on our
audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the financial statements referred to above present fairly,
in all material respects, the consolidated financial position of the Company at
December 27, 1997 and December 26, 1998, and the consolidated results of its
operations and its cash flows for each of the three years in the period ended
December 26, 1998, in conformity with generally accepted accounting principles.
Also, in our opinion, the related financial statement schedule, when considered
in relation to the basic financial statements taken as a whole, presents fairly
in all material respects the information set forth therein.
ERNST & YOUNG LLP
Dallas, Texas
March 22, 1999
F-2
<PAGE> 124
AMERISERVE FOOD DISTRIBUTION, INC.
CONSOLIDATED BALANCE SHEETS
(IN THOUSANDS, EXCEPT SHARE DATA)
<TABLE>
<CAPTION>
DECEMBER 27, DECEMBER 26,
1997 1998
------------ ------------
<S> <C> <C>
ASSETS
Current assets:
Cash and cash equivalents................................. $ 231,131 $ 4,667
Accounts receivable....................................... 43,625 55,402
Undivided interest in accounts receivable trust........... 154,371 208,451
Allowance for doubtful accounts........................... (15,566) (23,852)
Inventories............................................... 150,148 292,255
Prepaid expenses and other current assets................. 16,827 13,835
---------- ----------
Total current assets.............................. 580,536 550,758
Property and equipment, net................................. 130,856 224,516
Intangible assets, net...................................... 737,870 1,087,079
Other noncurrent assets..................................... 13,059 24,970
---------- ----------
$1,462,321 $1,887,323
========== ==========
LIABILITIES AND STOCKHOLDER'S EQUITY (DEFICIT)
Current liabilities:
Current portion of long-term debt......................... $ 5,019 $ 8,649
Accounts payable.......................................... 345,379 699,788
Accrued liabilities....................................... 101,219 183,671
---------- ----------
Total current liabilities......................... 451,617 892,108
Long-term debt.............................................. 874,219 902,600
Other noncurrent liabilities................................ 38,430 91,533
Stockholder's equity:
Common stock, $.01 par value per share ($10 in 1997);
10,000 shares authorized (2,000 in 1997), 600 shares
outstanding (in both years)............................ 6 --
Preferred stock, $.01 par value per share; 10,000 shares
authorized, none outstanding........................... -- --
Paid-in capital........................................... 174,603 224,609
Accumulated deficit....................................... (76,554) (223,527)
---------- ----------
Total stockholder's equity........................ 98,055 1,082
---------- ----------
$1,462,321 $1,887,323
========== ==========
</TABLE>
See accompanying notes.
F-3
<PAGE> 125
AMERISERVE FOOD DISTRIBUTION, INC.
CONSOLIDATED STATEMENTS OF OPERATIONS
(IN THOUSANDS)
<TABLE>
<CAPTION>
YEAR ENDED
--------------------------------------------
DECEMBER 28, DECEMBER 27, DECEMBER 26,
1996 1997 1998
------------ ------------ ------------
<S> <C> <C> <C>
Net sales............................................. $1,280,598 $3,446,191 $7,420,951
Cost of goods sold.................................... 1,151,749 3,104,012 6,740,926
---------- ---------- ----------
Gross profit.......................................... 128,849 342,179 680,025
Distribution, selling and administrative expenses..... 104,499 266,692 561,985
Depreciation of property and equipment................ 5,251 17,163 31,129
Amortization of intangible assets..................... 4,810 16,765 34,074
Restructuring and other unusual costs................. -- 52,449 90,087
---------- ---------- ----------
Operating income (loss)............................... 14,289 (10,890) (37,250)
Other income (expense):
Interest expense, net............................... (10,999) (46,805) (84,447)
Loss on sale of accounts receivable................. -- (6,757) (24,906)
Interest income -- affiliates....................... 528 632 971
---------- ---------- ----------
(10,471) (52,930) (108,382)
---------- ---------- ----------
Income (loss) before income taxes and extraordinary
loss................................................ 3,818 (63,820) (145,632)
Provision for income taxes............................ 1,300 1,030 1,341
---------- ---------- ----------
Income (loss) before extraordinary loss............... 2,518 (64,850) (146,973)
Extraordinary loss.................................... -- 9,373 --
---------- ---------- ----------
Net income (loss)..................................... $ 2,518 $ (74,223) $ (146,973)
========== ========== ==========
</TABLE>
See accompanying notes.
F-4
<PAGE> 126
AMERISERVE FOOD DISTRIBUTION, INC.
CONSOLIDATED STATEMENTS OF STOCKHOLDER'S EQUITY
(IN THOUSANDS, EXCEPT PER SHARE DATA)
<TABLE>
<CAPTION>
PREFERRED PREFERRED
SENIOR STOCK, STOCK,
PREFERRED $50,000 $25,000 COMMON PAID-IN ACCUMULATED
STOCK SERIES SERIES STOCK CAPITAL DEFICIT TOTAL
--------- --------- --------- ------ -------- ----------- ---------
<S> <C> <C> <C> <C> <C> <C> <C>
Balance, December 30, 1995.......... $ -- $ 7,500 $ 7,500 $ 6 $ -- $ (4,849) $ 10,157
Issuance of senior preferred
stock........................... 30,000 -- -- -- -- -- 30,000
Net income........................ -- -- -- -- -- 2,518 2,518
-------- ------- ------- --- -------- --------- ---------
Balance, December 28, 1996.......... 30,000 7,500 7,500 6 -- (2,331) 42,675
Contribution of preferred stock to
paid-in capital................. (30,000) (7,500) (7,500) -- 45,000 -- --
Contribution of capital........... -- -- -- -- 130,000 -- 130,000
Loss on exchange of investment in
NEHC preferred stock for
remaining capital stock of
equity investee................. -- -- -- -- (397) -- (397)
Net loss.......................... -- -- -- -- -- (74,223) (74,223)
-------- ------- ------- --- -------- --------- ---------
Balance, December 27, 1997.......... -- -- -- 6 174,603 (76,554) 98,055
Modification of common stock par
value........................... -- -- -- (6) 6 -- --
Contribution of capital........... -- -- -- -- 50,000 -- 50,000
Net loss.......................... -- -- -- -- -- (146,973) (146,973)
-------- ------- ------- --- -------- --------- ---------
Balance, December 26, 1998.......... $ -- $ -- $ -- $-- $224,609 $(223,527) $ 1,082
======== ======= ======= === ======== ========= =========
</TABLE>
See accompanying notes.
F-5
<PAGE> 127
AMERISERVE FOOD DISTRIBUTION, INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS
(IN THOUSANDS)
<TABLE>
<CAPTION>
YEAR ENDED
------------------------------------------
DECEMBER 28, DECEMBER 27, DECEMBER 26,
1996 1997 1998
------------ ------------ ------------
<S> <C> <C> <C>
Operating Activities:
Net income (loss)......................................... $ 2,518 $ (74,223) $(146,973)
Adjustments to reconcile net income (loss) to net cash
provided by (used for) operating activities:
Depreciation and amortization.......................... 10,061 33,928 65,203
Impairment of property, equipment and other assets..... -- 12,404 17,880
Extraordinary loss -- noncash portion.................. -- 2,156 --
Changes in assets and liabilities, net of effect of
businesses acquired:
Accounts receivable and undivided interest in
accounts receivable trust......................... (4,924) (314) (55,679)
Inventories.......................................... (6,497) (11,978) 8,908
Prepaid expenses and other current assets............ 1,270 (11,217) 13,535
Accounts payable..................................... 6,741 71,139 47,082
Accrued liabilities.................................. (5,309) 47,483 7,816
Payments charged to restructuring reserves........... -- (1,382) (14,944)
Noncurrent liabilities............................... (66) (4,000) (25,252)
Other................................................ (2,581) (1,150) (27,045)
--------- ---------- ---------
Net cash provided by (used for) operating activities...... 1,213 62,846 (109,469)
--------- ---------- ---------
Investing Activities:
Businesses acquired, net of cash acquired................. (94,411) (849,519) (313,501)
Capital expenditures...................................... (12,518) (22,921) (68,534)
Proceeds from disposals of property and equipment......... 2,866 -- 1,763
Amounts received from parent and affiliates............... 11,121 18,433 14,194
Amounts paid to parent and affiliates..................... (9,591) (21,446) (14,173)
Net increase in deposits with affiliate................... (2,480) (2,355) --
--------- ---------- ---------
Net cash used in investing activities..................... (105,013) (877,808) (380,251)
--------- ---------- ---------
Financing Activities:
Proceeds from issuance of preferred stock................. 30,000 -- --
Proceeds from issuance of long-term debt.................. -- 1,055,000 --
Proceeds from sale of accounts receivable................. -- 225,000 220,000
Proceeds from capital contribution........................ -- 130,000 50,000
Debt financing fees incurred.............................. -- (26,325) --
Net increase (decrease) in borrowings under revolving line
of credit.............................................. 120,000 (69,100) 4,000
Repayments of long-term debt.............................. (44,613) (270,644) (10,744)
--------- ---------- ---------
Net cash provided by financing activities................. 105,387 1,043,931 263,256
--------- ---------- ---------
Net increase (decrease) in cash and cash equivalents...... 1,587 228,969 (226,464)
Cash and cash equivalents at beginning of year............ 575 2,162 231,131
--------- ---------- ---------
Cash and cash equivalents at end of year.................. $ 2,162 $ 231,131 $ 4,667
========= ========== =========
Supplemental cash flow information:
Cash paid during the year for:
Interest............................................. $ 9,504 $ 21,436 $ 90,149
Income taxes, net of refunds......................... 1,256 2,669 717
Businesses acquired:
Fair value of assets acquired........................ $ 187,907 $1,118,976 $ 782,736
Cash paid............................................ (94,411) (849,519) (313,501)
--------- ---------- ---------
Liabilities assumed.................................. $ 93,496 $ 269,457 $ 469,235
========= ========== =========
Supplemental noncash investing and financing activities:
Property and equipment purchased with capital leases
(included in long-term debt)......................... $ 11,845 $ 20,604 $ 38,257
</TABLE>
See accompanying notes.
F-6
<PAGE> 128
AMERISERVE FOOD DISTRIBUTION, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
DECEMBER 26, 1998
1. NATURE OF OPERATIONS AND SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
NATURE OF OPERATIONS
AmeriServe Food Distribution, Inc. (the Company), is a foodservice
distributor specializing in distribution to chain restaurants. The Company
distributes a wide variety of food items as well as paper goods, cleaning and
other supplies and equipment. The Company operates within a single type of
business activity, with no operating segments as defined by Statement of
Financial Accounting Standards (Statement) No. 131, "Disclosures about Segments
of an Enterprise and Related Information."
The Company services approximately 36,000 restaurants, the vast majority of
which are in the United States. The Company's major customers are owners and/or
franchisees operating restaurants in the Arby's, Burger King, Chick-fil-A,
Chili's, Dairy Queen, KFC, Lone Star Steakhouse, Long John Silver's, Olive
Garden, Pizza Hut, Red Lobster, Sonic, Taco Bell, TCBY and TGI Friday's systems.
For most of these concepts, the Company services all or a substantial majority
of the U.S. restaurants in the systems. The Company also operates foodservice
distribution businesses in Canada and Mexico, which are not material to the
consolidated financial statements of the Company.
Nebco Evans Holding Company (NEHC) is the parent of the Company, which
comprises substantially all of the operations of NEHC. NEHC is an indirect
subsidiary of Holberg Industries, Inc. (Holberg), a privately held diversified
service company. In addition to NEHC, Holberg has subsidiaries operating within
the parking services industry in North America.
PRINCIPLES OF CONSOLIDATION
The consolidated financial statements include the accounts of the Company
and its subsidiaries. All significant intercompany accounts and transactions
have been eliminated in consolidation.
FISCAL CALENDAR
The results for each of the fiscal years ended December 28, 1996 (fiscal
1996), December 27, 1997 (fiscal 1997) and December 26, 1998 (fiscal 1998)
reflect a 52-week period ending on the last Saturday of the calendar year. The
fixed year-end day of the Company's fiscal calendar results in a 53-week year
every five or six years.
The Company is in the process of adopting a 13-period accounting calendar
for all of its business. This change impacts the number of weeks in each fiscal
quarter but does not impact the number of weeks in the year or the year-end date
as described above. This calendar consists of 13 four-week periods, with each of
the first three quarters consisting of three periods, or 12 weeks, and the
fourth quarter consisting of four periods, or 16 weeks. As of the end of fiscal
1998, almost 50% of the business was on a 13-period calendar. The balance was on
a 12-period calendar with each quarter consisting of 13 weeks (a "4-4-5"
calendar). The conversion of the remaining business is expected to be completed
in 2000. Due to the phased nature of the conversion, the year-over-year
comparisons of quarterly results have not been and are not expected to be
materially impacted. The 13-period calendar is preferable for management
purposes because operating measures for the periods are not distorted by
differences in number of weeks per period.
CASH AND CASH EQUIVALENTS
Cash equivalents represent funds temporarily invested (with original
maturities not exceeding three months) as part of managing day-to-day working
capital and/or as amounts held for general corporate purposes.
F-7
<PAGE> 129
AMERISERVE FOOD DISTRIBUTION, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
INVENTORIES
Inventories, which consist of purchased goods held for sale, are stated at
the lower of cost (determined on a first-in, first-out basis) or net realizable
value. Certain inventories in the former ProSource, Inc. (ProSource) business
(see Note 2) are stated at cost determined using the weighted-average-cost
method.
PROPERTY AND EQUIPMENT
Property and equipment are stated at cost, except for assets that have been
impaired. Depreciation is computed using the straight-line method over the
estimated useful lives of the assets. Amortization of leasehold improvements is
recorded over the respective lease terms or useful lives of the assets,
whichever is shorter. Amortization of leasehold improvements and assets under
capital leases is included in depreciation expense. Useful lives for
amortization and depreciation calculations are as follows:
<TABLE>
<S> <C>
Buildings and improvements.................................. 5-40 years
Delivery and automotive equipment........................... 3-9 years
Warehouse equipment......................................... 5-12 years
Furniture, fixtures and office equipment.................... 3-10 years
</TABLE>
GOODWILL AND OTHER INTANGIBLE ASSETS
Costs in excess of the net identifiable assets of businesses acquired are
amortized on a straight-line basis over 40 years. Assembled workforce, customer
lists and other intangible assets acquired in business acquisitions, deferred
financing costs and other intangibles are being amortized using primarily the
straight-line method over their respective estimated useful lives, which
generally range from 3 to 40 years.
IMPAIRMENT OF LONG-LIVED ASSETS
Property and equipment, goodwill and other intangible assets are reviewed
for impairment whenever events or changes in circumstances indicate that the
carrying amount may not be recoverable. If the sum of the expected undiscounted
cash flows is less than the carrying value of the related asset or group of
assets, a loss will be recognized for the difference between the fair value and
carrying value of the asset or group of assets. Such analyses necessarily
involve significant judgment.
COMPUTER SOFTWARE
Costs of computer software developed or obtained for internal use are
capitalized and amortized on a straight-line basis over the estimated useful
life of the software (generally 3-8 years). Business process reengineering costs
associated with implementation of new software are expensed as incurred.
REVENUE RECOGNITION
Revenue from the sale of the Company's products is recognized upon shipment
to the customer. Customer returns have historically been immaterial.
USE OF ESTIMATES
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates and
assumptions that affect the reported amounts of assets and liabilities and
disclosure of contingent assets and liabilities at the date of the financial
statements, and the reported amounts of revenues and expenses during the
reporting period. Actual results could differ from those estimates.
F-8
<PAGE> 130
AMERISERVE FOOD DISTRIBUTION, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
INCOME TAXES
The Company accounts for income taxes in accordance with Statement No. 109,
"Accounting for Income Taxes," which requires recognition of deferred tax assets
or liabilities for the future tax consequences attributable to differences
between the financial statement carrying amounts of existing assets and
liabilities and their respective tax bases, as well as net operating loss
carryforwards. Because of the Company's prior operating losses in certain of the
Company's taxable entities, a valuation allowance has been established to offset
the entire amount of the net deferred tax assets. (See Note 10)
Effective July 1997, the Company has been included in the consolidated
federal income tax return of NEHC. Prior to that date, the Company was part of
the Holberg consolidated group for income tax purposes and made tax sharing
payments to Holberg, under a tax sharing agreement, for those entities within
the Company's subgroup that had taxable income.
RECLASSIFICATIONS
Certain amounts previously presented in the financial statements of prior
years have been reclassified to conform to the current year presentation.
2. ACQUISITIONS
On May 21, 1998, the Company acquired ProSource for $313.5 million in cash,
which reflected $15.00 per share for all of the outstanding common stock,
repayment of existing indebtedness of ProSource of $159.5 million and direct
costs of the acquisition. ProSource, which reported net sales of $3.9 billion
for its fiscal year ended December 27, 1997, was in the foodservice distribution
business, specializing in quick service and casual dining chain restaurants.
ProSource serviced approximately 12,700 restaurants, principally in the United
States, in such chains as Burger King, Chick-fil-A, Chili's, Long John Silver's,
Olive Garden, Red Lobster, Sonic, TCBY and TGI Friday's. Funding of the
acquisition and related transactions included $125 million in proceeds from the
sale of ProSource accounts receivable (see Note 7), a $50 million capital
contribution to the Company from NEHC and cash and cash equivalents on hand.
The acquisition has been accounted for under the purchase method;
accordingly, its results are included in the consolidated financial statements
from the date of acquisition.
Following is the preliminary ProSource purchase price allocation (the final
purchase price allocation will be based on the final determination of the fair
values of assets acquired and liabilities assumed) (in millions):
<TABLE>
<S> <C>
Accounts receivable......................................... $ 224.0
Inventories................................................. 153.6
Property and equipment...................................... 33.5
Goodwill.................................................... 272.0
Identifiable intangible assets.............................. 83.4
Other assets................................................ 16.2
Accounts payable............................................ (307.3)
Accrued and other liabilities............................... (91.0)
Restructuring reserves...................................... (70.9)
-------
$ 313.5
=======
</TABLE>
The restructuring reserves of $70.9 million were included in the
preliminary purchase price allocation above in connection with the Company's
business restructuring plan to consolidate and integrate the
F-9
<PAGE> 131
AMERISERVE FOOD DISTRIBUTION, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
operations of ProSource and the Company. The reserves consist of accruals for
severance and other employee-related costs ($34.8 million) and costs associated
with the closures of duplicative warehouse and other facilities ($36.1 million).
Payments charged against the ProSource restructuring reserves totaled $5.9
million as of December 26, 1998. See Note 3 for additional discussion.
On July 11, 1997, the Company acquired the U.S. and Canadian operations of
PFS, a Division of PepsiCo, Inc. (PFS), in an asset purchase transaction for
$841.6 million in cash, including direct costs. PFS posted net sales of $3.4
billion for the fiscal year ended December 25, 1996. PFS was engaged in the
distribution of food products, supplies and equipment to approximately 17,000
company-owned and franchised restaurants in the Pizza Hut, Taco Bell and KFC
systems, which were spun-off by PepsiCo, Inc. in October 1997 as TRICON Global
Restaurants, Inc. (Tricon). Funding of the acquisition was provided by long-term
borrowings and sale of accounts receivable as described in Notes 6 and 7 and a
$130 million capital contribution to the Company from NEHC.
The effective date of the acquisition was June 11, 1997, the end of PFS'
second quarter. The acquisition has been accounted for under the purchase
method.
The PFS purchase price was allocated based on the estimated fair values of
identifiable intangible and tangible assets acquired and liabilities assumed at
the acquisition date, as follows (in millions):
<TABLE>
<S> <C>
Accounts receivable......................................... $ 322.3
Inventories................................................. 83.1
Property and equipment...................................... 70.7
Goodwill.................................................... 563.1
Identifiable intangible assets.............................. 36.9
Other assets................................................ 1.4
Accounts payable............................................ (168.6)
Accrued and other liabilities............................... (45.1)
Restructuring reserves...................................... (22.2)
-------
$ 841.6
=======
</TABLE>
The restructuring reserves of $22.2 million were included in the purchase
price allocation above in connection with the Company's original business
restructuring plan, which was revised after the ProSource acquisition, to
consolidate and integrate the operations of PFS and the Company. The reserves
consist of accruals for severance and other employee-related costs ($6.9
million) and costs associated with the closures of duplicative warehouse and
other facilities ($15.3 million). Payments charged against the PFS restructuring
reserves totaled $4.1 million as of December 26, 1998. There have been no
material adjustments to the reserves as of December 26, 1998. See Note 3 for
additional discussion.
The following unaudited results of operations for fiscal 1997 assume the
acquisitions of both PFS and ProSource occurred at the beginning of that period
and for fiscal 1998 assume the acquisition of ProSource occurred at the
beginning of that period (in millions):
<TABLE>
<CAPTION>
1997 1998
-------- --------
<S> <C> <C>
Net sales................................................ $8,907.6 $9,081.0
Loss before extraordinary items and cumulative effect of
a change in accounting principle....................... (49.3) (148.0)
Net loss................................................. (71.3) (148.0)
</TABLE>
This information does not purport to be indicative of the results that
actually would have been obtained if the combined operations had been conducted
during the periods presented and is not intended to be a projection of future
results.
F-10
<PAGE> 132
AMERISERVE FOOD DISTRIBUTION, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
In October 1997, the Company acquired the stock of a food distribution
business in Mexico for approximately $8 million in cash. The business
distributed food products and supplies to company-owned and franchised
restaurants in Tricon's Pizza Hut and KFC systems. The acquisition was accounted
for under the purchase method. The operating results of the business are not
material to the consolidated results of the Company.
3. RESTRUCTURING AND OTHER UNUSUAL COSTS
Included in "Restructuring and other unusual costs" in the accompanying
consolidated statements of operations for fiscal 1997 and 1998 are the following
(in millions):
<TABLE>
<CAPTION>
1997 1998
----- -----
<S> <C> <C>
Restructuring charges, principally exit costs for future
lease terminations and employee severance................. $13.4 $12.7
Impairment of property, equipment and other assets.......... 12.4 16.7
Financing-related fees and other one-time indirect costs
incurred in connection with the ProSource and PFS
acquisitions.............................................. 13.6 8.6
Costs incurred to integrate acquisitions, and other unusual
items..................................................... 13.0 52.1
----- -----
$52.4 $90.1
===== =====
</TABLE>
In the second quarter of 1998, the Company recorded restructuring reserves
and noncash impairment charges reflecting actions to be taken with respect to
the Company's then existing facilities as a result of the ProSource acquisition.
During the second quarter of 1998, management performed an extensive review of
the then existing and recently acquired ProSource operations with the objective
of developing a business restructuring plan for the consolidation and
integration of the organizations. The restructuring plan, which was approved by
the Company's Board of Directors in the second quarter of 1998 and represented a
revision of the plan developed at the time of the PFS acquisition in 1997,
identified a number of actions designed to improve the efficiency and
effectiveness of the combined organization's warehouse and transportation
network as well as administrative and other support functions. These actions, a
substantial majority of which will be completed by mid-2000, include
construction of new strategically located warehouse facilities, closures of a
number of existing warehouse facilities and expansions/reconfigurations of
others, dispositions of property and equipment, conversions of computer systems,
reductions in workforce, relocation of employees and centralization of support
functions largely at the Dallas, Texas headquarters.
In the third quarter of 1997, the Company recorded restructuring reserves
and noncash impairment charges associated with the Company's original business
restructuring plan, which was revised after the ProSource acquisition, to
consolidate and integrate the operations of PFS and the Company.
As of December 26, 1998, payments charged against the restructuring
reserves established in fiscal 1998 and 1997 totaled $6.3 million, and there
have been no material adjustments to the reserves.
The last category in the above table includes costs arising from
integration and consolidation actions associated with the PFS, ProSource and
previous acquisitions. These costs, which are incremental in nature and expensed
as incurred, relate primarily to start-up of new warehouse facilities,
activities to realign and centralize administrative and other support functions
and delivery fleet modifications. Also included in this category are costs to
implement a major new computer software and hardware platform as well as
remediate the Year 2000 computer program code problem in existing systems.
Included in the impairment and unusual items categories above are charges
totaling $7.2 million, largely recorded in the second quarter of 1998,
associated with the discontinuance of service to the Wendy's concept, consisting
primarily of costs related to equipment lease terminations and employee
F-11
<PAGE> 133
AMERISERVE FOOD DISTRIBUTION, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
severance. Service to Wendy's restaurants represented approximately $600 million
in annual net sales. The discontinuance, which was completed by late 1998,
resulted from a decision by Wendy's International, Inc. to transfer its business
to a competitor.
4. PROPERTY AND EQUIPMENT
Property and equipment consists of the following (in thousands):
<TABLE>
<CAPTION>
DECEMBER 27, DECEMBER 26,
1997 1998
------------ ------------
<S> <C> <C>
Land....................................................... $ 2,584 $ 6,294
Buildings and improvements................................. 33,477 66,102
Delivery and automotive equipment.......................... 86,879 97,339
Warehouse equipment........................................ 11,359 21,943
Furniture, fixtures and office equipment................... 17,393 84,145
Construction in progress................................... 5,538 4,520
-------- --------
157,230 280,343
Less accumulated depreciation and amortization............. 26,374 55,827
-------- --------
$130,856 $224,516
======== ========
</TABLE>
5. INTANGIBLE ASSETS
Intangible assets consist of the following (in thousands):
<TABLE>
<CAPTION>
DECEMBER 27, DECEMBER 26,
1997 1998
------------ ------------
<S> <C> <C>
Goodwill, less accumulated amortization of $15,849 and
$34,937.................................................. $661,570 $ 913,045
Assembled workforce, customer lists, deferred financing
costs and other intangibles, less accumulated
amortization of $9,861 and $22,906....................... 76,300 174,034
-------- ----------
$737,870 $1,087,079
======== ==========
</TABLE>
6. LONG-TERM DEBT
Long-term debt consists of the following (in thousands):
<TABLE>
<CAPTION>
DECEMBER 27, DECEMBER 26,
1997 1998
------------ ------------
<S> <C> <C>
8 7/8% Senior Notes due 2006............................... $350,000 $350,000
10 1/8% Senior Subordinated Notes due 2007................. 500,000 500,000
Borrowings under credit facility........................... -- 4,000
Other notes payable........................................ -- 500
-------- --------
850,000 854,500
Capital lease obligations (see Note 14).................... 29,238 56,749
-------- --------
879,238 911,249
Less current portion (capital lease obligations only)...... 5,019 8,649
-------- --------
$874,219 $902,600
======== ========
</TABLE>
In connection with the PFS acquisition, on July 11, 1997, the Company
issued $500 million principal amount of 10 1/8% Senior Subordinated Notes due
July 15, 2007 in a private placement not requiring
F-12
<PAGE> 134
AMERISERVE FOOD DISTRIBUTION, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
registration under the Securities Act of 1933, as amended, and entered into a
new credit agreement providing for term loans totaling $205 million and a
revolving credit facility of up to $150 million. A portion of the proceeds was
used to repay all outstanding borrowings of $133.8 million (including accrued
interest) under a previous credit agreement. On October 15, 1997, the Company
issued $350 million principal amount of 8 7/8% Senior Notes due October 15, 2006
in a private placement not requiring registration under the Securities Act of
1933, as amended, and used a portion of the proceeds to repay the $205 million
principal amount of term loans and related accrued interest.
In connection with the early extinguishment of debt on July 11 and October
15, 1997, the Company recorded an extraordinary loss of $9.4 million, which
represented the unamortized balance of deferred financing costs associated with
the repaid indebtedness. Because of NEHC's net operating loss carryforward
position, the charge was recorded without tax benefit.
Effective December 12, 1997, the Company completed offers to exchange all
the outstanding Senior Subordinated Notes due 2007 and the Senior Notes due 2006
with new notes with substantially identical terms that are registered under the
Securities Act of 1933, as amended.
Interest on the Senior Subordinated Notes and the Senior Notes
(collectively, the Notes) is payable semiannually. The Notes are fully,
unconditionally, jointly and severally guaranteed by the Company's operating
subsidiaries. The Notes contain covenants that limit the Company from incurring
additional indebtedness and issuing preferred stock, restrict dividend payments,
limit transactions with affiliates and certain other transactions. The Senior
Subordinated Notes are subordinated to all existing and future senior
indebtedness of the Company but rank equally in right of payment with any future
senior subordinated indebtedness of the Company.
In May 1998, the Company entered into an amended credit agreement with a
group of financial institutions that provides for a credit facility, expiring in
2003, of up to $220 million. The amended credit facility replaces the previous
$150 million revolving credit facility. Interest rates on borrowings under the
facility are indexed to certain key variable rates. Availability under the
facility is based on levels of the Company's inventories of food and paper
products and supplies. Restrictive covenants under the agreement include minimum
interest coverage and maximum leverage. The Company is in compliance with the
covenants as of December 26, 1998. A commitment fee of up to .50% per annum is
payable on the unused portion of the facility. The availability under the credit
facility at December 26, 1998 was $151.2 million, against which borrowings were
$4.0 million (at an 8.5% interest rate) and outstanding letters of credit
totaled $35.9 million. Day-to-day cash flows can result in significant
fluctuations in the amount of borrowings under the facility. In late March 1999,
an amendment to the credit facility was completed that allows the Company up to
$30 million in letters of credit before usage of the facility is impacted,
resulting in additional current liquidity in this amount.
7. ACCOUNTS RECEIVABLE PROGRAM
In July 1997, the Company entered into an Accounts Receivable Program (the
Program), which initially provided $225 million in proceeds to partially fund
the acquisition of PFS. Under the Program, the Company established a
consolidated, wholly owned subsidiary, AmeriServe Funding Corporation (Funding),
which is a special purpose, bankruptcy-remote entity that acquires, on a daily
basis, a substantial majority of the trade accounts receivable generated by the
Company and its subsidiaries. The purchases by Funding are financed through the
sale of the receivables to AmeriServe Master Trust (the Trust) and the issuance
of a series of investor certificates by the Trust.
During 1998, the Company received additional proceeds of $220 million
primarily as a result of the addition of ProSource trade accounts receivable (in
May) and the completion of a restructuring of the Program and implementation of
additional reporting requirements (in July).
F-13
<PAGE> 135
AMERISERVE FOOD DISTRIBUTION, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
Transactions completed in December 1998 were designed primarily to
refinance a substantial portion of the bank-funded Trust certificates that
supported the proceeds previously received by the Company. The transactions,
which also resulted in additional financing capacity under the Program, included
a $280 million Rule 144A private placement of a three-year asset backed security
and the establishment of a bank-funded, three-year variable funding certificate
of up to $100 million.
After these transactions, the Program provides up to $485 million in
capacity, depending on accounts receivable levels. Because of the linkage to
accounts receivable levels, the availability at December 26, 1998 was $445
million, all of which the Company had received in proceeds as of that date. The
proceeds reflected $653 million of accounts receivable sold less Funding's
undivided interest in the assets of the Trust of $208 million.
In accordance with the provisions of Statement No. 125, "Accounting for
Transfers and Servicing of Financial Assets and Extinguishments of Liabilities,"
the transactions have been recorded as a sale of receivables to a qualified
special purpose entity. The ongoing cost associated with the Program, which
largely represents the return to investors in the Trust certificates, is
reported in the accompanying consolidated statements of operations as "Loss on
sale of accounts receivable." The weighted average of the variable interest
rates on the Trust certificates was 6.94% and 6.40% at December 27, 1997 and
December 26, 1998, respectively.
The accompanying consolidated balance sheets reflect an allowance for
doubtful accounts that relates largely to the accounts receivable representing
the undivided interest in the Trust. The Company's accounts receivable generally
are unsecured.
8. FAIR VALUE OF FINANCIAL INSTRUMENTS
The carrying amounts reported in the accompanying consolidated balance
sheets for cash and cash equivalents, accounts receivable, investment in
accounts receivable trust, accounts payable and accrued liabilities approximate
fair value because of their short-term maturities. The carrying amounts and fair
values of long-term debt at December 26, 1998 are as follows (in thousands):
<TABLE>
<CAPTION>
CARRYING FAIR
AMOUNT VALUE
-------- --------
<S> <C> <C>
8 7/8% Senior Notes......................................... $350,000 $322,000
10 1/8% Senior Subordinated Notes........................... 500,000 435,000
</TABLE>
Related party financial instruments are recorded at cost.
9. GUARANTOR SUBSIDIARIES
The Company's operating subsidiaries fully, unconditionally, jointly and
severally guarantee the Senior Subordinated Notes and the Senior Notes discussed
in Note 6.
The guarantor subsidiaries are direct or indirect wholly owned subsidiaries
of the Company. The Company and the guarantor subsidiaries conduct substantially
all of the operations of the Company and its subsidiaries on a consolidated
basis. Financial statements of the guarantor subsidiaries are not separately
presented because, in the opinion of management, such financial statements are
not material to investors.
The only significant subsidiary of the Company that is not a guarantor
subsidiary is Funding, which is a wholly owned, special purpose,
bankruptcy-remote subsidiary. Funding has no operating revenues or expenses, and
its only asset is an undivided interest in an accounts receivable trust (the
Trust -- see Note 7). Funding's interest in the Trust is junior to the claims of
the holders of certificates issued by the Trust. Accordingly, as creditors of
the Company, the claims of the holders of the Senior Subordinated
F-14
<PAGE> 136
AMERISERVE FOOD DISTRIBUTION, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
Notes and Senior Notes against the accounts receivable held in the Trust are
similarly junior to the claims of holders of the certificates issued by the
Trust.
On the first day of fiscal 1999, ProSource and its subsidiaries were merged
into the Company. Accordingly, the following summarized combined financial
information (in accordance with Rule 1-02(bb) of Regulation S-X) at December 26,
1998 and for the year then ended is for the guarantor subsidiaries of the
Company remaining after the merger (in thousands):
<TABLE>
<S> <C>
Current assets.............................................. $ 35,084
Current liabilities......................................... 15,981
Noncurrent assets........................................... 51,544
Noncurrent liabilities...................................... 21,256
Net sales................................................... $199,088
Operating income............................................ 5,373
Net income.................................................. 5,141
</TABLE>
10. INCOME TAXES
The provision for income taxes consists of the following (in thousands):
<TABLE>
<CAPTION>
YEAR ENDED
------------------------------------------
DECEMBER 28, DECEMBER 27, DECEMBER 26,
1996 1997 1998
------------ ------------ ------------
<S> <C> <C> <C>
Current:
Federal....................................... $1,104 $ 515 $ --
State......................................... 196 299 612
Foreign....................................... -- 95 173
------ ------ ------
1,300 909 785
Deferred (foreign in 1997 and 1998)............. -- 121 556
------ ------ ------
$1,300 $1,030 $1,341
====== ====== ======
</TABLE>
The provision for income taxes differs from the amount computed by applying
the federal statutory rate of 34% to income (loss) before income taxes and
extraordinary loss, as follows (in thousands):
<TABLE>
<CAPTION>
YEAR ENDED
------------------------------------------
DECEMBER 28, DECEMBER 27, DECEMBER 26,
1996 1997 1998
------------ ------------ ------------
<S> <C> <C> <C>
Provision (benefit) at statutory rate........... $ 1,298 $(21,699) $(49,512)
State income taxes, net of federal tax
benefit....................................... 130 197 403
Foreign income taxes............................ -- 143 729
Nondeductible goodwill.......................... 758 891 2,892
Equity in earnings of unconsolidated
subsidiary.................................... (644) -- --
Increase in valuation allowance................. -- 20,250 45,927
Other........................................... (242) 1,248 902
------- -------- --------
Provision for income taxes...................... $ 1,300 $ 1,030 $ 1,341
======= ======== ========
</TABLE>
F-15
<PAGE> 137
AMERISERVE FOOD DISTRIBUTION, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
The components of the Company's deferred income tax assets and liabilities
are as follows (in thousands):
<TABLE>
<CAPTION>
DECEMBER 27, DECEMBER 26,
1997 1998
------------ ------------
<S> <C> <C>
Deferred tax assets:
Bad debt reserves......................................... $ 9,987 $ 9,140
Inventory reserves........................................ 4,669 13,121
Property and equipment.................................... 4,758 12,604
Accrued liabilities....................................... 4,222 24,107
Restructuring reserves.................................... 21,124 62,289
Acquisition costs......................................... 7,682 5,087
Net operating loss carryforward........................... 34,954 115,322
Other..................................................... -- 1,499
--------- --------
Total deferred tax assets......................... 87,396 243,169
Less valuation allowance.................................. (43,416) (188,625)
--------- --------
Total deferred tax assets, net.................... 43,980 54,544
--------- --------
Deferred tax liabilities:
Intangibles............................................... 43,980 53,274
Other..................................................... -- 1,270
--------- --------
Total deferred tax liabilities.................... 43,980 54,544
--------- --------
Deferred tax assets net of deferred tax
liabilities..................................... $ -- $ --
========= ========
</TABLE>
As of December 26, 1998, giving effect to the merger into the Company of
ProSource and its subsidiaries, the Company has net operating loss carryforwards
of approximately $300 million. The net operating loss carryforwards will expire
between 2004 and 2019. Because of uncertainty as to whether full benefit will be
realized from the use of such losses and other deferred tax assets, a valuation
reserve has been provided to offset the net deferred tax asset. As of the date
of its acquisition by the Company, ProSource had tax benefits associated with
net operating losses and other deferred items (the Acquired Tax Attributes) of
$37 million that were entirely offset by a valuation reserve. The acquired
ProSource net operating losses of $76 million are subject to limitation under
section 382 of the Internal Revenue Code. Under that section, after a change of
control, the amount of such net operating loss carryforwards that may be used
annually during the permitted carryover period is limited. Goodwill will be
reduced to the extent of any tax benefit realized from the Acquired Tax
Attributes.
11. EMPLOYEE BENEFIT PLANS
The Company and its subsidiaries have sponsored 401(k) retirement savings
plans covering substantially all employees. The Company has matched the
contributions of participating employees in accordance with the provisions of
the plans. Substantially all of the then existing plans were merged into a
single plan in August 1997.
Under this merged plan, eligible employees may contribute up to 18% of
eligible compensation, subject to limits imposed by law. The Company matches 50%
of the first 4% of compensation contributed by employees and 25% of additional
amounts contributed up to 6%. The Company will make additional contributions for
eligible employees of 0.8% to 2.0% of eligible compensation, depending on years
of service. Company contributions have certain vesting schedules, with all such
contributions vesting after 5 years of service. The Company may also elect to
make a discretionary contribution that would be allocated to employees based on
a predetermined formula.
F-16
<PAGE> 138
AMERISERVE FOOD DISTRIBUTION, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
The Company has not merged the ProSource retirement savings plan into its
existing plan. The ProSource plan has similar attributes but differing specific
terms as compared to the existing plan. The Company is reviewing alternatives
with respect to the possible merger of the two plans.
Company contributions expensed under the plans approximated $515,000,
$961,000 and $6,598,000 in fiscal 1996, 1997 and 1998, respectively.
In 1998, the Company adopted a deferred compensation benefit program for
eligible employees that allows participants to defer receipt of portions of
their annual salary and incentive compensation. Amounts deferred are credited
with earnings based on a key interest rate, which are expensed as accrued.
Obligations under this program totaled $1.1 million at December 26, 1998.
12. STOCK OPTION PLAN
In May 1998, NEHC adopted the 1998 Management Stock Option Plan (the Plan).
The Plan authorizes the issuance of up to one million shares of new Class A
common stock of NEHC through exercise of non-qualified stock options granted
primarily to key management employees of the Company. The shares offered have
been registered under The Securities Act of 1933, as amended, through a
Registration Statement on Form S-8 dated May 18, 1998.
Under The Plan, the Compensation Committee of the Board of Directors may
from time to time grant options, to be exercised within 10 years of the grant
date, at a price generally not less than the fair market value of the shares, as
determined by an independent appraisal firm.
On May 20, 1998, 438,410 options at an exercise price of $32.85 per share
were granted under the Plan. The per share price was based on an estimation by
an independent appraisal firm of the Company's value as of the end of 1997. The
options granted vest and become exercisable in two equal installments upon each
of the third and fourth anniversaries of the grant date; however, in the event
of an Initial Public Offering (IPO), as defined in the Plan, half of the then
outstanding and unvested options would become vested. A total of 27,540 options
have been forfeited as of December 26, 1998.
NEHC has elected to follow Accounting Principles Board Opinion No. 25 (APB
25) and related Interpretations in accounting for stock options. Under APB 25,
because the exercise price of the options granted is the estimated fair market
value of the underlying shares on the date of grant, no compensation expense has
been recognized.
Disclosures under Statement No. 123, "Accounting for Stock-Based
Compensation," require a calculation of the pro forma compensation cost
associated with the options had a fair value method been used to value the
options at the date of grant. Using the "minimum value" method as defined by
Statement No. 123, compensation expense associated with the option grant would
have been approximately $1.2 million annually over the four-year vesting period.
The key quantitative assumptions used in the calculation, which assumes no IPO,
are as follows:
<TABLE>
<S> <C>
Risk-free interest rate..................................... 5.82%
Expected life............................................... 7 years
Expected dividend yield..................................... 0%
</TABLE>
Because option valuation methods require highly subjective assumptions, NEHC
believes that the calculation does not necessarily provide a reliable single
measure of the fair value of the options granted.
13. RELATED-PARTY TRANSACTIONS
The Company has interest-bearing amounts due from affiliates of $2,106,000
and $8,610,000 at December 27, 1997 and December 26, 1998, respectively,
resulting from cash advances to Holberg, the
F-17
<PAGE> 139
AMERISERVE FOOD DISTRIBUTION, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
payment of miscellaneous expenses on behalf of Holberg and NEHC and other
transactions in the normal course of business. Also, the Company holds a note
receivable from Holberg dated December 1995 in the amount of $3,516,000. The
note bears interest at 5% and is due January 2007. The amounts due from
affiliates and the note receivable are included in other noncurrent assets in
the accompanying consolidated balance sheets.
Included in other noncurrent liabilities in the accompanying consolidated
balance sheet at December 26, 1998 is a cash deposit from NEHC of $6,525,000
received in connection with the anticipated sale in 1999 of certain warehouse
facilities owned by the Company to NEHC.
Prior to 1996, the Company participated in a self-insured casualty
(including workers' compensation and auto liability) and group health risk
program with an affiliate of Holberg. In connection with the insurance program,
the Company has deposits with an affiliate for insurance collateral purposes of
$4,835,000 at December 27, 1997 and December 26, 1998. This amount is included
in other noncurrent assets in the accompanying consolidated balance sheets.
In 1995, the Company entered into an agreement to lease a warehouse and
office facility in Omaha, Nebraska from a subsidiary of NEHC for a fixed term of
13 years. Annual rent is $500,000 for the first 5-year period of the lease, and
includes fixed escalation provisions for the 8 years thereafter. In connection
with the lease, the Company paid the affiliate a security deposit of $750,000,
which is included in other noncurrent assets in the accompanying consolidated
balance sheets.
In fiscal 1997 and 1998, distribution, selling and administrative expenses
include $4,000,000 in management fees to Holberg.
Interest income from NEHC, Holberg and an affiliate of approximately
$528,000, $632,000 and $971,000 in fiscal 1996, 1997 and 1998, respectively,
represents interest on the amounts due from NEHC and Holberg, including the note
receivable from Holberg, and interest on the insurance deposits with an
affiliate.
14. LEASE COMMITMENTS
The Company has noncancelable commitments under both capital and operating
long-term leases, primarily for office and warehouse facilities and
transportation and office equipment. Many leases provide for rent escalations,
purchase and renewal options, contingent rentals based on miles driven and
payment of executory costs by the Company. Rent expense (including contingent
rentals) was approximately $13,757,000, $17,140,000 and $50,415,000 in fiscal
1996, 1997 and 1998, respectively.
Property and equipment include the following amounts under capital leases
(in thousands):
<TABLE>
<CAPTION>
DECEMBER 27, DECEMBER 26,
1997 1998
------------ ------------
<S> <C> <C>
Buildings and improvements.................................. $ -- $ 7,231
Delivery and automotive equipment........................... 28,778 37,551
Warehouse equipment......................................... 2,227 5,595
Furniture, fixtures and office equipment.................... 3,312 16,603
------- -------
34,317 66,980
Less accumulated amortization............................... 5,767 12,339
------- -------
Property and equipment under capital leases, net............ $28,550 $54,641
======= =======
</TABLE>
F-18
<PAGE> 140
AMERISERVE FOOD DISTRIBUTION, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
The following is a schedule of aggregate future minimum lease payments
(excluding contingent rentals) required under terms of the aforementioned leases
at December 26, 1998 (in thousands):
<TABLE>
<CAPTION>
CAPITAL OPERATING
LEASES LEASES
FISCAL YEAR ENDING ------- ---------
<S> <C> <C>
1999........................................................ $15,797 $ 49,917
2000........................................................ 14,675 46,688
2001........................................................ 12,698 41,058
2002........................................................ 8,466 34,302
2003........................................................ 6,270 28,601
Thereafter.................................................. 25,364 136,148
------- --------
Total....................................................... 83,270 $336,714
========
Less amount representing interest........................... 26,521
-------
Present value of net minimum lease commitments.............. $56,749
=======
</TABLE>
15. CONCENTRATION OF CREDIT RISK
On a pro forma basis, as defined below, Tricon accounted for approximately
21% of the Company's 1998 net sales. Darden Restaurants, Inc., which owns all
the Red Lobster and Olive Garden restaurants, accounted for approximately 10% of
1998 pro forma net sales.
In connection with the PFS acquisition, the Company was assigned and
assumed a distribution agreement between PFS and the Pizza Hut, Taco Bell and
KFC businesses now comprising Tricon. The agreement provides that the Company is
the exclusive distributor of a substantial majority of food and supply products
purchased by Tricon's U.S. company-owned restaurants. In September 1998, Tricon
and the Company agreed to revise and extend the term of the agreement to seven
and one-half years from five years, with an additional two and one-half year
extension option. Including this option period, the agreement expires July 2007.
The Company provides service to Red Lobster and Olive Garden restaurants
under exclusive distribution agreements effective June 1997 and expiring in May
2002.
The table below presents the Company's net sales to major restaurant
concept served, including both company-owned and franchised units, as an
approximate percentage of the Company's total pro forma net sales. The pro forma
data for fiscal 1998 reflects inclusion of ProSource's net sales for the full
year, but exclusion of net sales to the Wendy's concept. The pro forma data for
fiscal 1997 reflects inclusion of PFS' net sales for the full year.
<TABLE>
<CAPTION>
1997 1998
---- ----
<S> <C> <C>
Burger King................................................. 5% 25%
Taco Bell................................................... 29% 17%
Pizza Hut................................................... 27% 16%
KFC......................................................... 12% 7%
Red Lobster................................................. -- 7%
Arby's...................................................... 7% 4%
Wendy's..................................................... 11% --
</TABLE>
16. STOCKHOLDER'S EQUITY
At December 27, 1997, the authorized capital of the Company consisted of
2,000 shares of common stock at a par value of $10; 765 shares of senior
nonconvertible, nonvoting preferred stock with a liquidation preference of
$50,000 per share and cumulative dividends at a rate of $6,250 per share;
F-19
<PAGE> 141
AMERISERVE FOOD DISTRIBUTION, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
150 shares of Series $50,000 par value nonconvertible, nonvoting preferred stock
with a liquidation preference of $50,000 per share and cumulative dividends at a
rate of $5,500 per share; and 400 shares of Series $25,000 par value
nonconvertible, nonvoting preferred stock with a liquidation preference of
$25,000 per share and cumulative dividends at a rate of $2,375 per share.
On December 30, 1997, the authorized capital was modified to consist
entirely of 10,000 shares of common stock at a par value of $.01 and 10,000
shares of preferred stock at a par value of $.01.
There were 600 common shares and no preferred shares outstanding at
December 27, 1997 and December 26, 1998.
On March 24, 1999 NEHC provided a capital contribution to the Company of
$25 million.
17. CONTINGENCIES
The Company is subject to various claims and contingencies related to
lawsuits, taxes, environmental and other matters arising out of the normal
course of business. Management believes that the ultimate liability, if any, in
excess of amounts already recognized arising from such claims or contingencies
is not likely to have a material adverse effect on the Company's annual results
of operations or financial condition.
F-20
<PAGE> 142
AMERISERVE FOOD DISTRIBUTION, INC.
SCHEDULE II -- VALUATION AND QUALIFYING ACCOUNTS
(IN THOUSANDS)
<TABLE>
<CAPTION>
ADDITIONS
-------------------------
BALANCE AT CHARGED TO CHARGED TO BALANCE
BEGINNING COSTS AND OTHER ACQUISITIONS AT END
OF YEAR EXPENSES ACCOUNTS BALANCE DEDUCTIONS(1) OF YEAR
---------- ---------- ---------- ------------ ------------- -------
<S> <C> <C> <C> <C> <C> <C>
Year ended December 28, 1996:
Allowance for doubtful
accounts.................... $ 1,170 $1,075 -- $ 3,173 $ (522) $ 4,896
Year ended December 27, 1997:
Allowance for doubtful
accounts.................... $ 4,896 $2,019 -- $10,472 $(1,821) $15,566
Year ended December 26, 1998:
Allowance for doubtful
accounts.................... $15,566 $4,746 -- $ 7,541 $(4,001) $23,852
</TABLE>
- ------------------------------
(1) Represents uncollectible accounts written off, net of recoveries.
F-21
<PAGE> 143
REPORT OF KPMG LLP, INDEPENDENT AUDITORS
The Management of PFS
(A Division of PepsiCo, Inc. Held for Sale):
We have audited the accompanying balance sheets of PFS (A Division of
PepsiCo, Inc. Held for Sale) as of December 27, 1995 and December 25, 1996, and
the related statements of income, divisional equity, and cash flows for each of
the years in the three-year period ended December 25, 1996. These financial
statements are the responsibility of the management of PFS. Our responsibility
is to express an opinion on these financial statements based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audits to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the financial statements referred to above present fairly,
in all material respects, the financial position of PFS as of December 27, 1995
and December 25, 1996, and the results of its operations and its cash flows for
each of the years in the three-year period ended December 25, 1996, in
conformity with generally accepted accounting principles.
KPMG LLP
Dallas, Texas
April 18, 1997
F-22
<PAGE> 144
PFS
(A DIVISION OF PEPSICO, INC. HELD FOR SALE)
BALANCE SHEETS
<TABLE>
<CAPTION>
DECEMBER 27, DECEMBER 25, JUNE 11,
1995 1996 1997
ASSETS ------------ -------------- -----------
(IN THOUSANDS) (UNAUDITED)
<S> <C> <C> <C>
Current assets:
Cash................................................... $ 203 $ 1,625 $ 32
Receivables:
Franchisees and licensees, net of allowance for
doubtful accounts of $11,941 in 1995 and $7,733 in
1996.............................................. 115,004 117,729 132,679
Affiliates.......................................... 206,658 162,485 191,006
Inventories......................................... 101,767 94,418 86,068
Prepaid expenses and other current assets........... 1,877 4,690 5,915
Deferred income taxes (note 7)...................... 10,105 10,629 9,975
-------- -------- --------
Total current assets........................... 435,614 391,576 425,675
Property and equipment, net (notes 3 and 6)............ 80,351 87,017 82,460
Other assets........................................... 323 328 320
-------- -------- --------
$516,288 $478,921 $508,455
======== ======== ========
LIABILITIES AND DIVISIONAL EQUITY
Current liabilities:
Accounts payable -- trade.............................. $196,695 $170,611 $200,026
Accrued liabilities (note 7)........................... 79,512 79,728 71,395
Advances from Parent and affiliates, net (note 4)...... 122,957 108,257 125,282
-------- -------- --------
Total current liabilities...................... 399,164 358,596 396,703
Other liabilities and deferred credits (notes 6 and 9)... 23,449 22,400 20,568
Deferred income taxes (note 7)........................... 5,096 4,520 3,545
Divisional equity (note 4)............................... 88,579 93,405 87,639
-------- -------- --------
Commitments (note 6)..................................... $516,288 $478,921 $508,455
======== ======== ========
</TABLE>
See accompanying notes to financial statements.
F-23
<PAGE> 145
PFS
(A DIVISION OF PEPSICO, INC. HELD FOR SALE)
STATEMENTS OF INCOME
<TABLE>
<CAPTION>
YEARS ENDED TWENTY FOUR WEEKS ENDED
-------------------------------------------- -----------------------
DECEMBER 28, DECEMBER 27, DECEMBER 25,
1994 1995 1996 JUNE 12, JUNE 11,
(53 WEEKS) (52 WEEKS) (52 WEEKS) 1996 1997
------------ ------------ -------------- ---------- ----------
(IN THOUSANDS) (UNAUDITED)
<S> <C> <C> <C> <C> <C>
Sales:
Affiliates (note 4).............. $2,378,963 $2,463,464 $2,292,423 $1,058,666 $ 957,528
Franchisees and licensees........ 905,874 999,988 1,136,201 497,003 544,425
---------- ---------- ---------- ---------- ----------
3,284,837 3,463,452 3,428,624 1,555,669 1,501,953
Less discounts and allowances.... 5,000 4,508 6,538 3,194 3,608
---------- ---------- ---------- ---------- ----------
Net sales..................... 3,279,837 3,458,944 3,422,086 1,552,475 1,498,345
---------- ---------- ---------- ---------- ----------
Costs and expenses:
Cost of sales and operating...... 3,155,422 3,331,866 3,297,381 1,498,587 1,443,274
General and administrative (notes
4, 6 and 8)................... 37,515 47,606 44,962 21,564 20,330
---------- ---------- ---------- ---------- ----------
3,192,937 3,379,472 3,342,343 1,520,151 1,463,604
---------- ---------- ---------- ---------- ----------
Income from operations........ 86,900 79,472 79,743 32,324 34,741
Interest expense to Parent (note
4)............................... 12,934 17,613 15,566 7,102 8,041
---------- ---------- ---------- ---------- ----------
Income before income
taxes.................... 73,966 61,859 64,177 25,222 26,700
Provision for income taxes (note
7)............................... 28,874 23,844 24,597 9,928 9,924
---------- ---------- ---------- ---------- ----------
Net income.................. $ 45,092 $ 38,015 $ 39,580 $ 15,294 $ 16,776
========== ========== ========== ========== ==========
</TABLE>
See accompanying notes to financial statements.
F-24
<PAGE> 146
PFS
(A DIVISION OF PEPSICO, INC. HELD FOR SALE)
STATEMENTS OF DIVISIONAL EQUITY
<TABLE>
<CAPTION>
(IN THOUSANDS)
<S> <C>
Divisional equity at December 29, 1993...................... $100,146
Transfers to Advances from Parent and affiliates, net (note
4)........................................................ (59,531)
Net income.................................................. 45,092
--------
Divisional equity at December 28, 1994...................... 85,707
Transfers to Advances from Parent and affiliates, net (note
4)........................................................ (35,143)
Net income.................................................. 38,015
--------
Divisional equity at December 27, 1995...................... 88,579
Transfers to Advances from Parent and affiliates, net (note
4)........................................................ (34,754)
Net income.................................................. 39,580
--------
Divisional equity at December 25, 1996...................... 93,405
Transfers to Advances from Parent and affiliates, net (note
4) (unaudited)............................................ (22,542)
Net income (unaudited)...................................... 16,776
--------
Divisional equity at June 11, 1997 (unaudited).............. $ 87,639
========
</TABLE>
See accompanying notes to financial statements.
F-25
<PAGE> 147
PFS
(A DIVISION OF PEPSICO, INC. HELD FOR SALE)
STATEMENTS OF CASH FLOWS
<TABLE>
<CAPTION>
TWENTY-FOUR WEEKS
YEARS ENDED ENDED
------------------------------------------ -------------------
DECEMBER 28, DECEMBER 27, DECEMBER 25,
1994 1995 1996 JUNE 12, JUNE 11,
(53 WEEKS) (52 WEEKS) (52 WEEKS) 1996 1997
------------ ------------ ------------ -------- --------
(IN THOUSANDS) (UNAUDITED)
<S> <C> <C> <C> <C> <C>
Cash flows -- operating activities:
Net income............................... $ 45,092 $ 38,015 $ 39,580 $ 15,294 $ 16,776
Adjustments to reconcile net income to
net cash provided by operating
activities:
Depreciation and amortization.......... 17,053 18,764 19,830 8,819 8,814
Loss on sale of property and
equipment........................... 1,788 2,324 1,065 72 (209)
Deferred income taxes.................. (6,800) (3,075) (1,100) (274) (321)
Change in assets and liabilities:
Receivables......................... (22,614) (22,051) 41,448 (6,769) (43,471)
Inventories......................... 4,839 (5,046) 7,349 8,429 8,350
Accounts payable.................... 9,524 (2,347) (26,084) (8,519) 29,415
Accrued liabilities................. 13,105 (4,672) 216 (11,278) (8,333)
Other............................... 2,730 7,668 (3,867) (4,877) (3,049)
-------- -------- -------- -------- --------
Net cash provided by operating
activities...................... 64,717 29,580 78,437 897 7,972
-------- -------- -------- -------- --------
Cash flows -- investing activities:
Additions to property and equipment...... (21,310) (25,245) (28,771) (14,214) (12,291)
Transfers of property and equipment to
affiliates............................. -- -- -- -- 7,338
Proceeds from sale of property and
equipment.............................. 1,047 857 1,210 1,032 905
-------- -------- -------- -------- --------
Net cash used for investing
activities...................... (20,263) (24,388) (27,561) (13,182) (4,048)
-------- -------- -------- -------- --------
Cash flows -- financing
activities -- (repayment of)/additions to
advances from Parent and affiliates,
net...................................... (44,360) (5,163) (49,454) 12,661 (5,517)
-------- -------- -------- -------- --------
Net increase (decrease) in cash.......... 94 29 1,422 376 (1,593)
Cash at beginning of period.............. 80 174 203 203 1,625
-------- -------- -------- -------- --------
Cash at end of period.................... $ 174 $ 203 $ 1,625 $ 579 $ 32
======== ======== ======== ======== ========
</TABLE>
During 1994, 1995, and 1996 PFS made the following transfers to Parent
through the intercompany account:
<TABLE>
<CAPTION>
1994 1995 1996
<S> <C> <C> <C>
State income tax............................................ $ 4,135 $ 3,808 $ 3,475
======= ======= =======
Federal income tax.......................................... $18,876 $19,887 $18,800
======= ======= =======
Interest on advances........................................ $12,994 $17,613 $15,566
======= ======= =======
Divisional equity reclassifications......................... $59,531 $35,143 $34,754
======= ======= =======
</TABLE>
See accompanying notes to financial statements.
F-26
<PAGE> 148
PFS
(A DIVISION OF PEPSICO, INC. HELD FOR SALE)
NOTES TO FINANCIAL STATEMENTS
DECEMBER 27, 1995 AND DECEMBER 25, 1996
(IN THOUSANDS)
(1) GENERAL AND BASIS OF PRESENTATION
PFS (A Division of PepsiCo, Inc. Held for Sale) operates as a division of
PepsiCo, Inc. ("Parent") and has no separate legal status or existence. In
January 1997, the Parent announced its intent to spin off its restaurant
business. Concurrent with this announcement, the Parent also announced that it
would explore the possible sale of PFS. The accompanying financial statements
present the business of PFS which is being held for sale. Accordingly, they
include only the assets, liabilities and results of operations of the PFS
business to be sold. The principal nature of this business is to provide food,
equipment, and supply items primarily to Taco Bell, Pizza Hut and KFC
restaurants, which restaurants are either owned or franchised by the Parent in
both the United States and Canada. The Division also has other transactions with
the Parent and affiliates of the Parent ("Affiliates") (notes 4, 5, 7, 8 and 9).
PFS' fiscal year ends on the last Wednesday in December and, as a result, a
fifty-third week is added every five or six years. The fiscal year ended
December 28, 1994 consisted of 53 weeks.
The financial statements of the Company as of June 11, 1997 and for the
periods ended June 12, 1996 and June 11, 1997 are unaudited, but in the opinion
of management reflect all adjustments (consisting only of normal recurring
accruals) which are necessary for a fair statement of the results of the interim
periods presented. Results for interim periods are not necessarily indicative of
the results to be expected for a full year or for periods which have been
previously reported.
(2) SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
(A) INVENTORIES
Inventories are valued at the lower of cost, as determined by the first-in,
first-out ("FIFO") method, or net realizable value.
(B) INCOME TAXES
PFS is included in the consolidated federal income tax return of the
Parent. For financial reporting purposes, federal income taxes are computed on a
separate return basis. State income taxes are computed at a composite rate (6.3%
in 1994 and 5.8% in 1995 and 1996) based upon actual taxes incurred by the
Parent on behalf of the Division.
PFS accounts for income taxes using the asset and liability method. Under
the asset and liability method of accounting for income taxes, deferred tax
assets and liabilities are recognized for the future tax consequences
attributable to differences between the financial statement carrying amounts of
existing assets and liabilities and their respective tax bases. Deferred tax
assets and liabilities are measured using enacted tax rates expected to apply to
taxable income in the years in which those temporary differences are expected to
be recovered or settled. The effect on deferred tax assets and liabilities of a
change in tax rates is recognized in income in the period that includes the
enactment date.
(C) PROPERTY AND EQUIPMENT
Property and equipment are stated at cost less accumulated depreciation.
Depreciation and amortization are calculated on a straight-line basis over the
estimated useful lives of the assets, generally 3 to 10 years.
F-27
<PAGE> 149
PFS
(A DIVISION OF PEPSICO, INC. HELD FOR SALE)
NOTES TO FINANCIAL STATEMENTS--(CONTINUED)
(D) USE OF ESTIMATES
The preparation of the financial statements in conformity with generally
accepted accounting principles requires management to make estimates and
assumptions that affect the reported amounts of assets and liabilities and
disclosure of contingent assets and liabilities at the date of the financial
statements and the reported amounts of revenues and expenses during the
reporting period. Actual results could differ from those estimates.
(3) PROPERTY AND EQUIPMENT
Property and equipment at December 27, 1995 and December 25, 1996 is
summarized as follows:
<TABLE>
<CAPTION>
1995 1996
-------- --------
<S> <C> <C>
Land........................................................ $ 756 $ 756
Transportation equipment.................................... 81,741 87,039
Warehouse and office equipment.............................. 33,654 38,916
Buildings and leasehold improvements........................ 38,490 46,651
Construction in progress.................................... 2,656 2,937
Leased computer and material handling equipment............. 5,712 5,750
-------- --------
163,009 182,049
Less accumulated depreciation and amortization.............. 82,658 95,032
-------- --------
$ 80,351 $ 87,017
======== ========
</TABLE>
(4) RELATED PARTY TRANSACTIONS
The Parent provides certain corporate general and administrative services
to PFS, including legal, treasury and benefits administration, among others. The
Company estimates the costs of these services to be approximately $1,100 based
on management's assessment of the relative benefit received from the Parent for
each of the years 1994, 1995 and 1996. The Company believes this method is
reasonable and inclusion of such costs would not have a material impact on the
accompanying financial statements.
Transactions with the Parent include utilization of cash management
services under which net cash balances of PFS are transferred to or provided by
the Parent daily. In addition, the Parent provides payments under its incentive
compensation plans to certain key employees of PFS.
In 1994, 1995 and 1996, respectively, approximately 29%, 28% and 27% of the
gross sales of PFS were to restaurants owned by Pizza Hut, Inc., 31%, 31% and
28% of gross sales were to restaurants owned by Taco Bell Corp., and 13%, 11%
and 12% of gross sales were to restaurants owned by KFC Corporation.
PFS and the Parent have agreed to reclassify amounts between advances and
divisional equity in order to maintain a preestablished debt to equity ratio, as
defined, as part of the agreements between PFS and Pizza Hut, Inc. and its
franchisees.
Advances from Parent and Affiliates bear interest at the prime rate (8.25%
at December 25, 1996) and are not subject to stated repayment terms.
Accordingly, such advances are classified as current liabilities in the
accompanying balance sheets. The carrying amount of Advances from the Parent and
Affiliates at December 27, 1995 and December 25, 1996 approximates the fair
value since the borrowings bear interest at current market rates.
F-28
<PAGE> 150
PFS
(A DIVISION OF PEPSICO, INC. HELD FOR SALE)
NOTES TO FINANCIAL STATEMENTS--(CONTINUED)
(5) PROFIT LIMITATION
"Gross profit" and "net pretax profit" on certain sales of PFS to Pizza Hut
restaurants, as defined in the agreements with Pizza Hut, Inc. and its
franchisees, are limited to amounts not to exceed 14% and 2.5% of sales,
respectively. Such limitations apply only to sales of food, paper products, and
similar restaurant supplies and exclude other nonfood items such as furnishings,
interior and exterior decor items, and equipment. As a result of the profit
limitation, sales are reported net of $3,039, $4,449 and $5,249 in 1994, 1995
and 1996, respectively, for distributions to Pizza Hut, Inc. and its
franchisees.
(6) LEASE COMMITMENTS
PFS occupies warehouse and office facilities under noncancellable operating
lease agreements expiring at various dates through 2006. Most of the leases
contain renewal options for periods ranging from one to five years, with rentals
generally equal to those stated for the initial term of the lease.
PFS also rents transportation equipment under operating leases which
provide for both short-term and long-term rentals.
Rental expense for the years ended December 28, 1994, December 27, 1995 and
December 25, 1996 is summarized as follows:
<TABLE>
<CAPTION>
1994 1995 1996
------- ------- -------
<S> <C> <C> <C>
Transportation equipment:
Fixed rentals....................................... $ 336 $ 409 $ 442
Variable rentals.................................... 2,173 1,776 1,059
Warehouse and office space............................ 8,110 8,531 10,252
Equipment............................................. 3,993 2,773 2,947
------- ------- -------
$14,612 $13,489 $14,700
======= ======= =======
</TABLE>
The future minimum rental commitments as of December 25, 1996 for all
noncancellable operating transportation, warehouse, office, and other equipment
leases are as follows:
<TABLE>
<S> <C>
1997........................................................ $10,783
1998........................................................ 9,493
1999........................................................ 8,110
2000........................................................ 6,986
2001........................................................ 7,020
Thereafter.................................................. 17,027
-------
$59,419
=======
</TABLE>
F-29
<PAGE> 151
PFS
(A DIVISION OF PEPSICO, INC. HELD FOR SALE)
NOTES TO FINANCIAL STATEMENTS--(CONTINUED)
PFS leases computer equipment and material handling equipment under capital
lease arrangements. The minimum lease payments as of December 25, 1996 for the
remainder of the lease periods are as follows:
<TABLE>
<S> <C>
1997........................................................ $692
1998........................................................ 118
----
Total minimum lease payments................................ 810
Less amount representing interest........................... 22
----
Present value of net minimum lease payments................. 788
Less current obligations.................................... 673
----
Long-term obligations....................................... $115
====
</TABLE>
Included in property and equipment as of December 25, 1996 are assets
recorded under capital leases as follows:
<TABLE>
<S> <C>
Computer and material handling equipment.................... $5,750
Less accumulated amortization............................... 5,114
------
$ 636
======
</TABLE>
(7) INCOME TAXES
The provision for income taxes is comprised of the following:
<TABLE>
<CAPTION>
1994 1995 1996
------- ------- -------
<S> <C> <C> <C>
Current:
Federal............................................. $29,875 $24,227 $23,127
State............................................... 5,799 2,692 2,570
Deferred:
Federal............................................. (5,780) (2,639) (846)
State............................................... (1,020) (436) (254)
------- ------- -------
$28,874 $23,844 $24,597
======= ======= =======
</TABLE>
The differences between the statutory and effective federal income tax
rates are as follows:
<TABLE>
<CAPTION>
1994 1995 1996
---- ---- ----
<S> <C> <C> <C>
Statutory federal rate...................................... 35% 35% 35%
State income tax, net of federal benefit.................... 4 4 4
-- -- --
Effective rate......................................... 39% 39% 39%
== == ==
</TABLE>
Federal income taxes currently payable to the Parent of $35,714 at December
27, 1995 and $36,441 at December 25, 1996 are included in accrued liabilities in
the accompanying balance sheets.
The primary components of deferred taxes result from accelerated
depreciation methods, bad debt provisions and the deferral of certain expenses
related to postretirement benefits for tax purposes.
F-30
<PAGE> 152
PFS
(A DIVISION OF PEPSICO, INC. HELD FOR SALE)
NOTES TO FINANCIAL STATEMENTS--(CONTINUED)
(8) RETIREMENT PLANS
PFS participates in two defined benefit noncontributory pension plans for
salaried and nonsalaried employees which are administered directly or indirectly
by the Parent. Substantially all employees of the Division are covered by these
plans. PFS's participation is accounted for as a multiemployer plan.
Generally, benefits for salaried and nonsalaried employees are based on
years of service and the employees' highest consecutive five-year average annual
earnings. The Parent funds the plans in amounts not less than the minimum
statutory funding requirements nor more than the maximum amount which can be
deducted for federal income tax purposes by the Parent. The plans' assets
consist principally of equity securities, government and corporate debt
securities, and other fixed income obligations. Capital stock of the Parent
accounted for approximately 24% and 22% of the total market value of the
domestic Parent sponsored plans' assets for 1995 and 1996.
PFS was allocated pension expense of $1,211, $1,174 and $2,374 in 1994,
1995 and 1996, respectively.
(9) POSTRETIREMENT BENEFITS OTHER THAN PENSIONS
PFS participates in a postretirement benefit plan administered by the
Parent. The plan provides postretirement health care and life insurance benefits
to eligible retired U.S. employees. Employees who have 10 years of service and
attain age 55 while in service with the Division are eligible to participate in
the postretirement benefit plan. The plan in effect through 1994 was largely
noncontributory and was not funded. PFS accrues the cost of postretirement
benefits over the years employees provide services to the date of their full
eligibility for such benefits.
Postretirement benefit expense amounted to $919, $481 and $1,047 in 1994,
1995 and 1996, respectively. The liability for postretirement benefits of $8,967
at December 25, 1995 and $9,962 at December 27, 1996 is included in other
liabilities and deferred credits in the accompanying balance sheets.
Effective in 1994, certain features of the plan were amended to expand
retiree cost-sharing provisions and limit the Division's share of future
increases in health care costs.
F-31
<PAGE> 153
INDEPENDENT AUDITORS' REPORT
The Board of Directors and Stockholders
ProSource, Inc.:
We have audited the accompanying consolidated balance sheets of ProSource,
Inc. and subsidiaries as of December 28, 1996 and December 27, 1997, and the
related consolidated statements of operations, stockholders' equity, and cash
flows for each of the years in the three-year period ended December 27, 1997.
These consolidated financial statements are the responsibility of the Company's
management. Our responsibility is to express an opinion on these consolidated
financial statements based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the consolidated financial statements referred to above
present fairly, in all material respects, the financial position of ProSource,
Inc. and subsidiaries as of December 28, 1996 and December 27, 1997, and the
results of their operations and their cash flows for each of the years in the
three-year period ended December 27, 1997, in conformity with generally accepted
accounting principles.
As discussed in Note 13 to the consolidated financial statements, the
Company changed its method of capitalization of business process reengineering
activities in the fourth quarter of 1997.
KPMG LLP
Miami, Florida
February 20, 1998
F-32
<PAGE> 154
PROSOURCE, INC.
CONSOLIDATED BALANCE SHEETS
DECEMBER 28, 1996 AND DECEMBER 27, 1997
(IN THOUSANDS, EXCEPT SHARE AND PER-SHARE DATA)
<TABLE>
<CAPTION>
1996 1997
ASSETS -------- --------
<S> <C> <C>
Current assets:
Cash and cash equivalents................................. $ 2,763 $ 12,501
Accounts receivable, net of allowance for doubtful
accounts of $2,334 and $4,085 respectively............. 219,340 222,247
Inventories............................................... 144,040 160,621
Deferred income taxes, net................................ 10,914 7,190
Prepaid expenses and other current assets................. 7,373 8,434
-------- --------
Total current assets.............................. 384,430 410,993
Property and equipment, net................................. 49,637 59,961
Intangible assets, net...................................... 41,436 39,883
Deferred income taxes, net.................................. 16,100 28,802
Other assets................................................ 12,121 8,462
-------- --------
Total assets...................................... $503,724 $548,101
======== ========
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Accounts payable.......................................... $254,907 $277,953
Accrued liabilities....................................... 42,475 27,012
Current portion of long-term debt......................... 1,500 --
-------- --------
Total current liabilities......................... 298,882 304,965
Long-term debt, less current portion........................ 111,084 174,200
Other noncurrent liabilities................................ 15,243 4,521
-------- --------
Total liabilities................................. 425,209 483,686
-------- --------
Commitments and contingencies Stockholders' equity:
Preferred stock, $.01 par value; Authorized 10,000,000
shares; none issued.................................... -- --
Class A common stock, $.01 par value; Authorized
50,000,000 shares; issued and outstanding 3,400,000
shares and 3,496,499 shares, respectively.............. 34 35
Class B common stock, $.01 par value; Authorized
10,000,000 shares; issued and outstanding 5,963,856
shares and 5,856,756 shares, respectively.............. 60 58
Additional paid-in capital.................................. 105,256 104,934
Accumulated deficit......................................... (26,901) (40,580)
Accumulated foreign-currency translation adjustments........ 66 (32)
-------- --------
Total stockholders' equity........................ 78,515 64,415
-------- --------
Total liabilities and stockholders' equity........ $503,724 $548,101
======== ========
</TABLE>
See accompanying notes to consolidated financial statements.
F-33
<PAGE> 155
PROSOURCE, INC.
CONSOLIDATED STATEMENTS OF OPERATIONS
YEARS ENDED DECEMBER 30, 1995,
DECEMBER 28, 1996 AND DECEMBER 27, 1997
(IN THOUSANDS, EXCEPT SHARE AND PER-SHARE DATA)
<TABLE>
<CAPTION>
1995 1996 1997
---------- ---------- ----------
<S> <C> <C> <C>
Net sales.............................................. $3,461,837 $4,125,054 $3,901,165
Cost of sales.......................................... 3,193,270 3,806,811 3,591,368
---------- ---------- ----------
Gross profit...................................... 268,567 318,243 309,797
Operating expenses, including management fees to Onex
of $808, $729 and $0, respectively................... 255,216 301,295 302,080
Loss on impairment of long-lived assets................ -- 15,733 --
Restructuring and contract-termination charges......... 711 28,466 --
---------- ---------- ----------
Income (loss) from operations..................... 12,640 (27,251) 7,717
Interest expense, including interest to Onex of $1,738,
$1,888 and $0, respectively.......................... (14,678) (14,824) (11,745)
Interest income........................................ 1,339 1,694 2,552
---------- ---------- ----------
Loss before income taxes, extraordinary items and
cumulative effect of a change in accounting
principle....................................... (699) (40,381) (1,476)
Income tax benefit (provision)......................... (85) 15,410 485
---------- ---------- ----------
Loss before extraordinary items and cumulative
effect of a change in accounting principle...... (784) (24,971) (991)
Extraordinary (loss) gain on early retirement of debt,
net of income tax benefit (provision) of $502, $(397)
and $4,073, respectively............................. (772) 610 (6,262)
Cumulative effect of a change in accounting principle,
net of income tax benefit of $3,293.................. -- -- (6,426)
---------- ---------- ----------
Net loss.......................................... $ (1,556) $ (24,361) $ (13,679)
========== ========== ==========
Net loss per common share (basic and diluted):
Loss before extraordinary items and cumulative effect
of a change in accounting principle.................. $ (0.18) $ (4.30) $ (0.11)
Extraordinary items, net............................... (0.17) 0.10 (0.67)
Cumulative effect of a change in accounting principle,
net.................................................. -- -- (0.69)
---------- ---------- ----------
Net loss per common share......................... $ (0.35) $ (4.20) $ (1.47)
========== ========== ==========
Weighted average number of shares...................... 4,489,906 5,804,319 9,331,845
</TABLE>
See accompanying notes to consolidated financial statements.
F-34
<PAGE> 156
PROSOURCE, INC.
CONSOLIDATED STATEMENTS OF STOCKHOLDERS' EQUITY
YEARS ENDED DECEMBER 30, 1995,
DECEMBER 28, 1996 AND DECEMBER 27, 1997
(IN THOUSANDS, EXCEPT SHARE DATA)
<TABLE>
<CAPTION>
ACCUMULATED
FOREIGN-
COMMON STOCK ADDITIONAL CURRENCY
----------------- PAID-IN ACCUMULATED TRANSLATION
CLASS A CLASS B CAPITAL DEFICIT ADJUSTMENTS TOTAL
------- ------- ---------- ----------- ----------- --------
<S> <C> <C> <C> <C> <C> <C>
Balance, December 25, 1994..... $-- $23 $ 23,504 $ (984) $ -- $ 22,543
Issuance of 2,858,500 Class B
shares.................... -- 29 28,556 -- -- 28,585
Acquisition and retirement of
23,000 Class B shares..... -- -- (222) -- -- (222)
Net loss..................... -- -- -- (1,556) -- (1,556)
Foreign-currency translation
adjustments............... -- -- -- -- 71 71
--- --- -------- -------- ---- --------
Balance, December 30, 1995..... -- 52 51,838 (2,540) 71 49,421
Issuance of 3,400,000 Class A
shares, net............... 34 -- 43,193 -- -- 43,227
Amendment to 1995 Option
Plan...................... -- -- 1,224 -- -- 1,224
Issuance of 285,714 Class B
shares to Onex............ -- 3 3,997 -- -- 4,000
Conversion of subordinated
notes payable to Onex into
459,242
Class B shares............ -- 5 4,594 -- -- 4,599
Issuance of 61,500 Class B
shares.................... -- -- 615 -- -- 615
Acquisition and retirement of
20,000 Class B shares..... -- -- (205) -- -- (205)
Net loss..................... -- -- -- (24,361) -- (24,361)
Foreign-currency translation
adjustments............... -- -- -- -- (5) (5)
--- --- -------- -------- ---- --------
Balance, December 28, 1996..... 34 60 105,256 (26,901) 66 78,515
Issuance of 33,799 Class A
shares under the Employee
Stock Purchase Plan....... -- -- 204 -- -- 204
Acquisition and retirement of
44,400 Class B shares..... -- (1) (554) -- -- (555)
Conversion of 62,700 Class B
shares into 62,700 Class A
shares.................... 1 (1) -- -- -- --
Compensation expense accrued
under the 1997 Directors
Stock Option Plan......... -- -- 28 -- -- 28
Net loss..................... -- -- -- (13,679) -- (13,679)
Foreign-currency translation
adjustments............... -- -- -- -- (98) (98)
--- --- -------- -------- ---- --------
Balance, December 27, 1997..... $35 $58 $104,934 $(40,580) $(32) $ 64,415
=== === ======== ======== ==== ========
</TABLE>
See accompanying notes to consolidated financial statements.
F-35
<PAGE> 157
PROSOURCE, INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS
YEARS ENDED DECEMBER 30, 1995,
DECEMBER 28, 1996 AND DECEMBER 27, 1997
(IN THOUSANDS, EXCEPT SHARE AND PER-SHARE DATA)
<TABLE>
<CAPTION>
1995 1996 1997
--------- -------- --------
<S> <C> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES:
Net loss.................................................. $ (1,556) $(24,361) $(13,679)
Adjustments to reconcile net loss to net cash (used in)
provided by operating activities:
Depreciation and amortization........................... 12,693 10,937 11,231
Bad debt expense........................................ 1,845 1,682 2,275
Loss (gain) on early retirement of debt................. 1,274 (1,007) 10,335
Cumulative effect of a change in accounting principle... -- -- 9,719
Deferred income tax benefit............................. (1,749) (14,085) (8,978)
Loss on impairment of long-lived assets................. -- 15,733 --
Noncash contract-termination charges.................... -- 5,224 --
Gain on sales of property and equipment................. (184) (154) (655)
Changes in operating assets and liabilities, net of
effects of companies acquired.........................
(Increase) decrease in accounts receivable............ (13,441) 9,067 (5,182)
(Increase) decrease in inventories.................... 7,706 (3,608) (16,581)
Increase in prepaid expenses and other assets......... (1,208) (13,854) (3,949)
Increase in accounts payable.......................... 43,518 12,262 23,046
(Decrease) increase in accrued and other noncurrent
liabilities........................................ 1,099 23,450 (25,952)
--------- -------- --------
Net cash (used in) provided by operating
activities....................................... 49,997 21,286 (18,370)
--------- -------- --------
CASH FLOWS FROM INVESTING ACTIVITIES:
Capital expenditures...................................... (5,683) (19,987) (29,997)
Proceeds from sales of property and equipment............. 362 154 1,786
Payment for purchase of net assets acquired............... (170,279) -- --
--------- -------- --------
Net cash used in investing activities.............. (175,600) (19,833) (28,211)
--------- -------- --------
CASH FLOWS FROM FINANCING ACTIVITIES:
Repayments of long-term debt to Onex...................... (2,085) (15,000) --
Repayments of long-term debt to others.................... (78,938) (30,269) (112,584)
Borrowings on long-term debt from Onex.................... 18,750 -- --
Borrowings on long-term debt from others, net............. 160,616 -- 174,200
Fees incurred in conjunction with long-term debt.......... -- -- (4,644)
Proceeds from issuance of common stock to Onex............ 26,500 7,000 --
Proceeds from issuance of common stock to others.......... 2,085 37,464 --
Payments to acquire and retire treasury stock............. (222) (205) (555)
--------- -------- --------
Net cash provided by (used in) financing
activities....................................... 126,706 (1,010) 56,417
--------- -------- --------
Effect of exchange-rate changes on cash..................... 71 (5) (98)
--------- -------- --------
Net increase in cash and cash equivalents.......... 1,174 438 9,738
Cash and cash equivalents at beginning of year.............. 1,151 2,325 2,763
--------- -------- --------
Cash and cash equivalents at end of year.................... $ 2,325 $ 2,763 $ 12,501
========= ======== ========
SUPPLEMENTAL DISCLOSURES OF CASH FLOW INFORMATION:
Cash paid during the year for:
Interest to Onex........................................ $ 41 $ 2,927 $ --
========= ======== ========
Interest to others...................................... $ 12,291 $ 16,435 $ 10,938
========= ======== ========
Income taxes, net of refunds............................ $ 993 $ -- $ --
========= ======== ========
</TABLE>
F-36
<PAGE> 158
SUPPLEMENTAL SCHEDULE OF NONCASH INVESTING AND FINANCING ACTIVITIES:
In October 1997, the Company issued 33,799 Class A common shares to
employees under the 1997 Employee Stock Purchase Plan at $6.035 per share in
exchange for accrued compensation totaling $204.
During 1997, the Company recognized $28 of compensation expense associated
with the 1997 Directors Stock Option Plan.
See accompanying notes to consolidated financial statements.
F-37
<PAGE> 159
PROSOURCE, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
YEAR ENDED DECEMBER 30, 1995, DECEMBER 28, 1996 AND DECEMBER 27, 1997
1. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
(A) THE BUSINESS
ProSource, Inc. (for this section only the "Company") provides foodservice
distribution services to chain restaurants in North America and provides
purchasing and logistics services to the foodservice market. The Company's 3,400
associates serve approximately 12,700 restaurants, consisting primarily of
Burger King, Red Lobster, Long John Silver's, Olive Garden, TGIFriday's,
Chick-fil-A, Chili's, Sonic, TCBY and Wendy's restaurant concepts, from 34
distribution centers and its Corporate Support Center in Coral Gables, Florida.
The Company operates through ProSource Services Corporation ("PSC"), a
wholly owned subsidiary, and PSC's four main wholly-owned operating
subsidiaries, ProSource Distribution Services Limited ("ProSource Canada"),
BroMar Services, Inc., ProSource Receivables Corporation ("PRC"), and PSD
Transportation Services, Inc. PSC commenced operations in July 1992. PRC and PSD
commenced operations during fiscal 1997. The consolidated financial statements
include the results of the operations of PSC, PRC and PSD from their inception
and the results of operations of ProSource Canada and BroMar, which were formed
or acquired by the Company in connection with the acquisition of the National
Accounts Division ("NAD") of The Martin-Brower Company, since the date of
acquisition. The Company is a subsidiary of Onex Corporation (collectively with
its affiliates, "Onex"), a company traded on the Toronto and Montreal stock
exchanges.
The Company operates on a 52- to 53-week accounting year, ending on the
last Saturday of each calendar year.
(B) PRINCIPLES OF CONSOLIDATION
The consolidated financial statements include the accounts of the Company
and its subsidiaries. Operations of the companies and businesses acquired have
been included in the accompanying consolidated financial statements from their
respective dates of acquisition. All significant intercompany accounts and
transactions have been eliminated in consolidation.
(C) USE OF ESTIMATES
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates and
assumptions that affect the reported amounts of assets and liabilities and
disclosure of contingent assets and liabilities at the date of the financial
statements and the reported amounts of revenues and expenses during the
reporting period. Actual results could differ from those estimates.
(D) CASH AND CASH EQUIVALENTS
Cash on hand and in banks and short-term securities with maturities of
three months or less when purchased are considered cash and cash equivalents.
(E) INVENTORIES
Inventories, consisting primarily of food items, are stated at the lower of
cost or net realizable value. Cost is determined using the weighted-average-cost
method and the first-in, first-out method. Cost of inventory using the
weighted-average-cost method represents 32%, 32% and 34% of inventories in 1995,
1996, and 1997, respectively.
F-38
<PAGE> 160
PROSOURCE, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
(F) PROPERTY AND EQUIPMENT
Property and equipment are stated at cost, less accumulated depreciation
and amortization. Depreciation is computed using the straight-line method over
the estimated useful lives of the related assets. Amortization of leasehold
improvements is computed using the straight-line method over the shorter of the
lease term or estimated useful lives of the related assets.
Costs of normal maintenance and repairs are charged to expense when
incurred. Replacements or betterments of properties are capitalized. When assets
are retired or otherwise disposed of, their cost and the applicable accumulated
depreciation and amortization are removed from the accounts, and the resulting
gain or loss is reflected in the consolidated statements of operations.
(G) INTANGIBLE ASSETS
Intangible assets are amortized using the straight-line method over the
following periods:
<TABLE>
<S> <C>
Goodwill.................................................... 40 years
Noncompete agreements....................................... 5 years
Customer lists.............................................. 12 years
</TABLE>
Goodwill represents the excess of cost over fair value of net assets
acquired. The Company periodically evaluates the recoverability of recorded
costs for goodwill based upon estimations of future undiscounted related
operating income from the acquired companies. Should the Company determine it
probable that future estimated undiscounted related operating income from any of
its acquired companies will be less than the carrying amount of the associated
goodwill, an impairment of goodwill would be recognized, and goodwill would be
reduced to the amount estimated to be recoverable. The Company believes that no
material impairment existed at December 28, 1996 and December 27, 1997.
(H) DEFERRED DEBT-ISSUANCE COSTS
Included in other assets are deferred debt-issuance costs which are
amortized over the term of the related debt.
(I) SELF-INSURANCE
The Company self-insures up to certain retention limits under its workers'
compensation (except for a period during 1996-1997), auto liability and medical
and dental insurance programs. Costs in excess of retention limits are insured
under various contracts with insurance carriers. Estimated costs for claims for
which the Company is responsible are determined based on historical claims
experience, adjusted for current trends. The liability related to workers'
compensation is discounted to net present value using a risk-free treasury rate
for maturities that match the expected settlement periods. At December 28, 1996
and December 27, 1997, the estimated accrued liabilities related to workers'
compensation were approximately $4.4 million and $3.3 million, respectively, net
of a discount of approximately $1.6 million and $1.0 million, respectively.
(J) NET LOSS PER COMMON SHARE
In February 1997, Statement of Financial Accounting Standards ("SFAS") No.
128, "Earnings per Share" was issued. SFAS No. 128 replaced the calculation of
primary and fully diluted earnings per share with basic and diluted earnings per
share. Unlike primary earnings per share, basic earnings per share excludes any
dilutive effects of options, warrants and convertible securities. Diluted
earnings per share is very similar to the previously reported fully diluted
earnings per share. All earnings per share amounts for
F-39
<PAGE> 161
PROSOURCE, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
all periods have been presented, and where appropriate, restated to conform with
the requirements of SFAS No. 128.
Shares and options issued within one year prior to the filing of the
Registration Statement relating to the initial public offering (see note 10)
have been treated as outstanding for all periods presented, even where the
impact of the incremental shares is antidilutive.
(K) INCOME TAXES
The Company and its wholly-owned domestic subsidiaries file consolidated
federal and state tax returns in the United States. Separate foreign tax returns
are filed for the Company's Canadian subsidiary. The Company follows the asset
and liability method of accounting for income taxes prescribed by SFAS No. 109,
"Accounting for Income Taxes." Under the asset and liability method, deferred
income taxes are recognized for the tax consequences of "temporary differences"
by applying enacted statutory tax rates applicable to future years to
differences between the financial statement carrying amounts and the tax basis
of existing assets and liabilities. The effect on deferred taxes of a change in
tax rates is recognized in income in the year that includes the enactment date.
(L) TRANSLATION OF FOREIGN CURRENCY
The accounts of ProSource Canada are translated into U.S. dollars in
accordance with SFAS No. 52, "Foreign Currency Translation." Consequently, all
balance sheet accounts are translated at the current exchange rate. Income and
expense accounts are translated at the average exchange rates in effect during
the year. Adjustments resulting from the translation are included in accumulated
foreign-currency translation adjustments as a component of stockholders' equity.
(M) IMPACT OF RECENTLY ISSUED ACCOUNTING STANDARDS
In June 1997, the Financial Accounting Standards Board (FASB) issued
Statement No. 130, "Reporting Comprehensive Income," which establishes standards
for reporting and display of comprehensive income and its components. In June
1997, the FASB also issued Statement No. 131, "Disclosures about Segments of an
Enterprise and Related Information." This statement establishes standards for
reporting information about a company's operating segments and related
disclosures about its products, services, geographic areas of operations and
major customers. Both statements will be adopted by the Company in 1998.
Management believes the adoption of these statements will not materially impact
the Company's results of operations, cash flows or financial position.
(N) FAIR VALUE OF FINANCIAL INSTRUMENTS
The carrying amounts reported in the consolidated balance sheets for cash
and cash equivalents, accounts receivable, accounts payable and accrued
liabilities approximate fair value because of their short-term maturities. The
carrying amounts reported for long-term debt approximate fair value because they
are variable-rate instruments that reprice monthly.
(O) RECLASSIFICATIONS
Certain amounts previously presented in the financial statements of prior
years have been reclassified to conform to the current year presentation.
2. BUSINESS COMBINATIONS
On March 31, 1995, the Company completed the acquisition of substantially
all of the assets and the assumption of certain liabilities of NAD from
Martin-Brower. The total cost of the acquisition of
F-40
<PAGE> 162
PROSOURCE, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
$170 million was funded through a borrowing of $116 million under the Company's
previous revolving credit facility, a $9 million note payable to Martin-Brower
(net of a discount to reflect a constant interest rate), $18.5 million in notes
payable to Onex, and the issuance of 2,650,000 shares of the Company's Class B
common stock, valued at approximately $26.5 million. The acquisition has been
accounted for under the purchase method of accounting. The accompanying
consolidated financial statements include the assets acquired of approximately
$232 million, consisting primarily of accounts receivable and inventories, and
liabilities assumed of approximately $87 million, consisting primarily of trade
accounts payable, based on their estimated fair values at the acquisition date.
As a result of this transaction, the Company recorded goodwill of approximately
$25 million. In addition, the Company incurred an extraordinary charge relating
to the write-off of approximately $0.8 million of unamortized deferred-debt
issuance costs on debt repaid at the acquisition date.
On March 30, 1996, the Company revised its estimates of certain costs
related to the acquisition by $12 million. The effect of the revision increased
acquisition-related liabilities by $12 million, deferred tax assets by
approximately $4.4 million and goodwill by approximately $7.6 million.
3. RESTRUCTURING, TERMINATION CHARGES AND IMPAIRMENT OF LONG-LIVED ASSETS
In conjunction with the NAD acquisition, the Company incurred restructuring
costs of approximately $0.7 million in 1995 primarily relating to costs incurred
to consolidate and integrate certain functions and operations. In 1996, as a
result of a study to analyze, among other things, ways to integrate the NAD
operations, improve customer service, reduce operating costs and increase
existing warehouse capacity, the Company adopted a plan, which was approved by
its Board of Directors, to consolidate and integrate its corporate and network
operations, including the closing of 19 distribution facilities under lease
agreements and 11 owned distribution facilities. As a result, in the first
quarter of 1996, the Company accrued restructuring charges of $10.9 million,
primarily related to the termination of the existing facility leases and
employee related costs. The Company began the integration of some of these
facilities, including communications to its employees and its customers in 1996.
During 1997, the Company undertook a thorough evaluation of each specific
facility's return on investment and alternative uses. As a result, the Company
now intends to close 10 distribution facilities currently leased and 9
distribution facilities currently owned. The Company expects to complete the
plan in stages through the year 2002. During 1996 and 1997, the Company paid in
the aggregate $2.8 million and $1.7 million, respectively, in costs primarily
related to facility leases and relocation costs. In addition, during 1997 the
Company reclassified $3.4 million to acquisition related liabilities. As of
December 27, 1997, the Company had approximately $3.0 million of accrued unpaid
restructuring charges. Management believes that the remaining accrued
restructuring charges are adequate to complete its plans.
The significant change brought about by the plan to integrate and
consolidate the existing distribution network impaired the value of long-lived
assets to be held and used until the plan is completed. As a result, in
conjunction with the recording of the restructuring reserves in the first
quarter of 1996, the Company recognized a loss on impairment in value of
long-lived assets. The loss consisted of $7.3 million of land and owned
buildings, $4.3 million of furniture and equipment and leasehold improvements
management plans to hold and use through the completion of the plan, and $4.1
million of capitalized software costs which do not meet the long-term
information technology strategy of the Company. The Company measured the amount
of the loss by comparing fair value of the land and the owned buildings
(determined by independent appraisals and updated with current comparisons to
similar assets) to capitalized cost. The carrying value of furniture and
equipment and capitalized software costs was written down to net realizable
value since it is being replaced.
The Company discontinued its distribution services to Arby's restaurants
effective April 1, 1997. In connection therewith, as of December 28, 1996, the
Company accrued approximately $10.6 million of costs
F-41
<PAGE> 163
PROSOURCE, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
associated with the termination of this agreement. During 1997, the Company paid
and charged in the aggregate $9.1 million in costs primarily related to lease
costs in connection with idle equipment and warehouse space and costs associated
with rerouting the Company's transportation fleet required as a result of the
loss of the Arby's business. In addition, the Company reclassified approximately
$1.2 million to the allowance for doubtful accounts receivable to reserve
against outstanding Arby's accounts receivable. As of December 27, 1997, the
Company had approximately $0.3 million of accrued unpaid termination charges
which management believes will be paid during 1998.
4. PROPERTY AND EQUIPMENT
Property and equipment and related depreciable lives were as follows (in
thousands):
<TABLE>
<CAPTION>
DECEMBER 28, DECEMBER 27, DEPRECIABLE
1996 1997 LIVES
------------ ------------ --------------
<S> <C> <C> <C>
Land....................................... $ 3,636 $ 3,662 --
Buildings and improvements................. 16,413 17,092 15 to 40 years
Warehouse and transportation equipment..... 24,465 25,592 3 to 10 years
1 1/2 to 5
Computer software.......................... 4,262 7,391 years
Leasehold improvements..................... 4,384 8,966 3 to 13 years
Office equipment........................... 7,261 8,209 3 to 7 years
Projects in progress....................... 11,760 18,456 --
------- -------
72,181 89,368
Less accumulated depreciation and
amortization............................. 22,544 29,407
------- -------
Property and equipment, net................ $49,637 $59,961
======= =======
</TABLE>
5. INTANGIBLE ASSETS
Intangible assets consisted of the following (in thousands):
<TABLE>
<CAPTION>
DECEMBER 28, DECEMBER 27,
1996 1997
------------ ------------
<S> <C> <C>
Goodwill................................................... $41,298 $41,298
Identifiable intangibles................................... 3,870 3,870
------- -------
45,168 45,168
Less accumulated amortization.............................. 3,732 5,285
------- -------
Intangible assets, net..................................... $41,436 $39,883
======= =======
</TABLE>
F-42
<PAGE> 164
PROSOURCE, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
6. LONG-TERM DEBT
Long-term debt consisted of the following loan agreements with banks (in
thousands):
<TABLE>
<CAPTION>
DECEMBER 28, DECEMBER 27,
1996 1997
------------ ------------
<S> <C> <C>
$150 million accounts receivable securitization facility,
due March 14, 2002....................................... $ -- $125,000
$75 million revolving credit facility, due March 14,
2002..................................................... -- 49,200
$210 million revolving credit facility, retired and repaid
March 14, 1997........................................... 84,834 --
$15 million term-loan facility, retired and repaid March
14, 1997................................................. 12,750 --
$15 million term-loan facility, retired and repaid March
14, 1997................................................. 15,000 --
-------- --------
Total long-term debt.................................. 112,584 174,200
Less current portion....................................... 1,500 --
-------- --------
Long-term debt, less current portion.................. $111,084 $174,200
======== ========
</TABLE>
(A) EXISTING CREDIT FACILITIES
In March, 1997, the Company entered into two five-year loan agreements
aggregating $225 million (the "Existing Credit Facilities") with a group of
financial institutions to replace its previous credit facility. In connection
with this early retirement of long-term debt, the Company recorded a pre-tax
extraordinary charge of $10.3 million ($6.3 million net of taxes) in the first
quarter of fiscal 1997. This charge reflected the write-off of deferred
financing costs of $6.3 million, prepayment penalties of $2.7 million and $1.3
million in costs associated with the termination of interest-rate protection
agreements.
The Existing Credit Facilities bear interest based on either the prime rate
or LIBOR plus an additional spread based on certain financial ratios and mature
on March 14, 2002. The effective rate at December 27, 1997 was 7.34%. The
Company is required to comply with various covenants in connection with the
Existing Credit Facilities and borrowings are subject to calculations based on
accounts receivable and inventory. The revolving credit facility is secured by
liens on substantially all of the Company's assets and contains various
restrictions on, among other things, the Company's ability to pay dividends and
dispose of assets. Additionally, in the event of a change in control, the
outstanding principal amount of these facilities shall become due and payable.
PRC is the legal borrower for the accounts receivable securitization facility.
Pursuant to the terms of the accounts receivable securitization facility PSC
sells, on an ongoing basis and without recourse, an undivided interest in a
designated pool of trade accounts receivable to PRC. In order to maintain the
designated balance in the pool of accounts receivable sold, PSC is obligated to
sell undivided interests in new receivables as existing receivables are
collected. PSC has retained substantially the same credit risk as if the
receivables had not been sold. PSC, as agent for PRC, retains collection and
administrative responsibilities on the receivables sold to PRC. The creditors
for this facility have security interests in PRC's assets (consisting primarily
of accounts receivable purchased from PSC) and are entitled to be satisfied by
such assets prior to equity holders. The Company pays a quarterly variable
commitment fee, as defined in the agreements, based on the unused portion of the
facilities which fee averaged 0.33% of such unused portion during 1997. At
December 27, 1997, the Company had approximately $35 million available under the
Existing Credit Facilities.
(B) PREVIOUS CREDIT FACILITY
On March 31, 1995, in conjunction with the acquisition of NAD, the Company
entered into a $240 million Loan and Security Agreement (the "Previous Credit
Facility") with a group of banks that was retired and repaid before its maturity
on March 14, 1997. The Previous Credit Facility provided for a
F-43
<PAGE> 165
PROSOURCE, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
revolving-credit facility of up to $210 million and term loans aggregating $30
million. The interest rate on the Previous Credit Facility was reset every month
to reflect current market rates. The effective rate during fiscal 1995 and 1996
was 8.7 percent. This rate reflected the effect of interest-rate protection
agreements, which were terminated on March 14, 1997 in connection with the
retirement of this facility.
7. LEASES
The Company leases certain of its facilities, vehicles and other equipment
under long-term operating leases. Certain transportation equipment leases call
for contingent rental payments based upon total miles. Future minimum lease
payments under non-cancelable operating leases as of December 27, 1997, by
fiscal year are as follows (in thousands):
<TABLE>
<S> <C>
1998........................................................ $ 28,600
1999........................................................ 25,183
2000........................................................ 22,222
2001........................................................ 18,342
2002........................................................ 13,581
Thereafter.................................................. 36,315
--------
Total............................................. $144,243
========
</TABLE>
Rent expense, including contingent rental expense, was approximately $30.6
million, $39.3 million and $36.8 million during fiscal years 1995, 1996 and
1997, respectively.
8. INCOME TAXES
The income tax benefit (provision) before extraordinary items and
cumulative effect of a change in accounting principle for fiscal years 1995,
1996 and 1997, respectively, consisted of the following (in thousands):
<TABLE>
<CAPTION>
1995 1996 1997
------- ------- -------
<S> <C> <C> <C>
Current taxes:
Federal.............................................. $(1,236) $ 937 $ (582)
State................................................ (408) (9) (545)
------- ------- -------
Total current taxes.......................... (1,644) 928 (1,127)
------- ------- -------
Deferred taxes, excluding other components:
Federal.............................................. 1,126 11,449 1,170
State................................................ 264 3,217 404
------- ------- -------
Total deferred taxes, excluding other
components................................. 1,390 14,666 1,574
------- ------- -------
Other:
Alternative minimum tax-credit (utilization)
carryforwards..................................... 666 (184) 38
Utilization of operating-loss carryforwards.......... (497) -- --
------- ------- -------
Total other.................................. 169 (184) 38
------- ------- -------
Income tax benefit (provision)......................... $ (85) $15,410 $ 485
======= ======= =======
</TABLE>
F-44
<PAGE> 166
PROSOURCE, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
The following table summarizes the differences between the Company's
effective income tax rate and the statutory Federal income tax rate for fiscal
years 1995, 1996 and 1997:
<TABLE>
<CAPTION>
1995 1996 1997
----- ---- ----
<S> <C> <C> <C>
Statutory federal income tax rate........................... 34.0% 34.0% 34.0%
Increase (decrease) resulting from:
State income taxes (net of federal taxes)................. (16.9) 5.2 5.0
Goodwill amortization..................................... (10.9) (0.3) (0.7)
Other..................................................... (18.4) (0.7) (5.4)
----- ---- ----
(12.2)% 38.2% 32.9%
===== ==== ====
</TABLE>
The tax effects of each type of temporary difference that gave rise to the
Company's deferred tax assets and deferred tax liabilities at December 28, 1996
and December 27, 1997 are as follows (in thousands):
<TABLE>
<CAPTION>
1996 1997
------- -------
<S> <C> <C>
Deferred tax assets:
Acquisition-related expenses.............................. $ 3,567 $ 1,262
Accounts receivable, principally due to allowance for
doubtful
accounts............................................... 1,222 2,011
Property, plant and equipment, principally due to
differences in depreciation............................ 1,935 1,063
Self-insurance reserves................................... 3,493 3,355
Impairment of long-lived assets........................... 4,036 3,231
Restructuring and contract-termination charges............ 8,121 3,224
Benefit of federal and state net operating-loss
carryforwards.......................................... 5,797 23,933
Other..................................................... 2,025 2,682
------- -------
Total deferred tax assets......................... 30,196 40,761
Less valuation allowance.................................. -- --
------- -------
Total deferred tax assets, net.................... 30,196 40,761
------- -------
Deferred tax liabilities:
Computer software......................................... (1,811) (3,225)
Acquisition-related liabilities........................... (803) (1,138)
Other..................................................... (568) (406)
------- -------
Total deferred tax liabilities.................... (3,182) (4,769)
------- -------
Net deferred tax assets........................... $27,014 $35,992
======= =======
</TABLE>
In order to fully realize the net deferred tax assets at December 27, 1997,
the Company will need to generate future taxable income of approximately $90
million. Management believes that it is more likely than not that the Company's
deferred tax asset will be realized as a result of future taxable income,
expected to be generated based on the Company's reasonable projections of future
earnings. The Company anticipates that increases in taxable income will result
primarily from (i) future projected revenue and gross margin growth through the
addition of new restaurant chains and the expansion of services provided to new
and existing restaurant chains, (ii) a reduction in interest expense due to a
reduction in its indebtedness, (iii) cost savings through its corporate and
network consolidation plan and (iv) other cost-reduction initiatives. In
addition, management believes reasonable tax planning strategies and other
F-45
<PAGE> 167
PROSOURCE, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
potential transactions will be available that could be used to realize the
deferred tax asset before the expiry of any material net operating losses, which
will not begin to occur until after 2010.
At December 28, 1996 and December 27, 1997, other current assets included
income taxes receivable of approximately $1.5 million and $0.4 million,
respectively, which consisted primarily of overpayments of tax liabilities and
pending carryback refund claims. United States federal income tax returns for
fiscal years 1992 and 1993 are currently under examination by the Internal
Revenue Service. A preliminary assessment is pending which is not material to
the consolidated financial position or results of operations as of December 27,
1997.
9. EMPLOYEE BENEFIT PLANS
(A) DEFINED-CONTRIBUTION PLANS
On January 1, 1997, the Company's defined contribution plan, which covers
substantially all employees, was renamed the ProSource Retirement Advantage
Plan. Eligible employees can contribute up to 15% of base compensation, with the
following benefits: (i) Company contributions of 2 percent, (ii) additional
Company matching of 50 percent of the first 6 percent contributed by the
employee, and (iii) vesting of Company contributions ratably over four years of
service.
The Company also had a Money Purchase Plan which covered those former NAD
salaried employees not covered by a defined-benefit plan. Under this plan, the
Company contributed 10 percent of eligible salary. The Money Purchase Plan was
terminated effective December 1996.
The amount of contribution expense incurred by the Company for these plans
was approximately $2.2 million, $2.7 million and $1.5 million for fiscal years
1995, 1996 and 1997, respectively.
(B) DEFINED-BENEFIT PENSION PLANS
In conjunction with the changes to the ProSource Retirement Advantage Plan
in 1997, the Company terminated all three noncontributory defined-benefit
pension plans covering substantially all employees except those covered by
multiemployer pension plans under collective-bargaining agreements. The Company
settled all pension obligations related to these terminated plans in 1997
through (i) the purchase of annuities, (ii) lump-sum payments, or (iii) the
transfer of plan benefits into the ProSource Retirement Advantage Plan, at the
participant's discretion. The accrued liability as of December 28, 1996 was
adequate to cover the unfunded termination liability of these three pension
plans.
Pension costs of approximately $0.9 million and $1.1 million reflected in
the consolidated statements of operations for fiscal years 1995 and 1996,
respectively, were determined based on actuarial studies. The Company's pension
expense for contributions to the various multiemployer pension plans under
collective-bargaining agreements was approximately $0.9 million, $1.2 million,
and $1.1 million for fiscal years 1995, 1996 and 1997, respectively.
10. STOCKHOLDERS' EQUITY
Under the ProSource, Inc. Employee Stock Purchase Plan (the "Stock Plan"),
officers and key employees of the Company ("Management Employees") purchased a
total of 408,100 shares of Class B common stock at $10.00 per share in 1992,
132,500 shares of Class B common stock at $11.00 per share in 1993 and 1994, and
270,000 shares of Class B common stock at $10.00 per share in 1995 and 1996. In
connection with the purchases of Class B common stock, each Management Employee
entered into a Management Shareholders Agreement with the Company and Onex.
The ProSource, Inc. Amended Management Option Plan (1995) (the "1995 Option
Plan") provides certain Management Employees with options to purchase one-half
the number of shares of Class B
F-46
<PAGE> 168
PROSOURCE, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
common stock purchased under the Stock Plan at the same price per share paid by
such stockholder (either $10.00 or $11.00). Subject to the 1995 Option Plan,
options granted under the 1995 Option Plan are exercisable until December 31,
2000. No additional options will be granted under the 1995 Option Plan. The 1995
Option Plan was amended in November 1996 to provide that all unvested options
vest at a rate of 10% per year through December 31, 1999, when all remaining
options vest. As a result, the Company recorded a pretax charge in 1996 of $1.2
million reflecting the difference between the market price of the Company's
Class A common stock on the date of amendment and the exercise price of such
options.
Under the 1996 Stock Option Plan (the "1996 Option Plan"), the Company may
grant options to its employees for up to 550,000 shares of Class B common stock.
In 1996 and 1997, the Company granted options to purchase 358,000 and 16,000
shares, respectively, of Class B common stock at $14.00 per share. Options under
the 1996 Option Plan vest ratably over four years from the date of grant. These
options cannot be exercised, however, until the earlier of (i) the date on which
the market value of the Company's common stock is 25% greater than the exercise
price and (ii) the eighth anniversary of the date of grant. Subject to the
provisions of the 1996 Option Plan, vested options may be exercised for a period
of up to 10 years from the date of grant.
Under the ProSource, Inc. 1997 Directors Stock Option Plan (the "1997
Directors Plan"), which was approved by the shareholders in April 1997, the
Company may grant options to its directors, who so elect to receive such options
in lieu of fees, to purchase shares of Class A common stock at $4.00 per share
below the stated fair market value on the date of grant. Options to purchase up
to 100,000 shares of Class A common stock may be granted under this plan. In
April 1997, the Company granted options to purchase 10,500 shares of Class A
common stock at $5.25 per share. Options under the 1997 Directors Plan vest and
become exercisable one year from the date of grant, provided that the holder
thereof is still a director of the Company at such time. Subject to the
provisions of the 1997 Directors Plan, options may be exercised for a period of
up to 10 years after the vesting date. During the year ended December 27, 1997,
the Company recognized $28,000 of compensation expense associated with this
plan.
A summary of the status of the Company's three option plans for the years
ended December 30, 1995, December 28, 1996, and December 27, 1997 is as follows:
<TABLE>
<CAPTION>
WEIGHTED WEIGHTED WEIGHTED
AVERAGE AVERAGE AVERAGE
1995 EXERCISE 1996 EXERCISE 1997 EXERCISE
SHARES PRICE SHARES PRICE SHARES PRICE
------- -------- ------- -------- ------- --------
<S> <C> <C> <C> <C> <C> <C>
Options outstanding --
beginning............ 237,450 $10.22 327,700 $10.16 706,450 $12.10
Options granted........ 101,750 10.00 388,750 13.69 26,500 10.53
Options exercised...... -- -- (125) 10.00 -- --
Options canceled....... (11,500) 10.00 (9,875) 10.00 (93,300) 11.91
------- ------ ------- ------ ------- ------
Options outstanding --
ending............... 327,700 $10.16 706,450 $12.10 639,650 $12.06
======= ====== ======= ====== ======= ======
Options exercisable --
year-end............. 41,500 $10.12 78,401 $10.13 176,449 $11.86
======= ====== ======= ====== ======= ======
</TABLE>
F-47
<PAGE> 169
PROSOURCE, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
The following table summarizes information about stock options outstanding
at December 27, 1997:
<TABLE>
<CAPTION>
OPTIONS OUTSTANDING OPTIONS EXERCISABLE
------------------------------------------------- -----------------------------
NUMBER WEIGHTED AVG. NUMBER
OUTSTANDING REMAINING WEIGHTED AVG. EXERCISABLE WEIGHTED AVG.
EXERCISE PRICES AT 12/27/97 CONTRACTUAL LIFE EXERCISE PRICE AT 12/27/97 EXERCISE PRICE
--------------- ----------- ---------------- -------------- ----------- --------------
<S> <C> <C> <C> <C> <C>
$ 5.25............... 10,500 9 years $ 5.25 -- $ 5.25
10.00................ 262,100 3 years 10.00 87,034 10.00
11.00................ 33,050 3 years 11.00 9,915 11.00
14.00................ 334,000 9 years 14.00 79,500 14.00
------- ------- ------ ------- ------
Totals..... 639,650 6 years $12.06 176,449 $11.86
======= ======= ====== ======= ======
</TABLE>
During fiscal year 1996, the Company adopted SFAS No. 123. Under the
provisions of the new standard, the Company elected to continue using the
intrinsic-value method of accounting for stock-based compensation plans granted
to employees under Accounting Principles Board Opinion No. 25 and provide
pro-forma disclosure for the fair-value based method of accounting for
compensation costs related to stock-option plans and other forms of stock-based
compensation under SFAS No. 123.
The Company estimated the weighted-average fair value of each option
granted during 1995, 1996 and 1997 at $8.27, $7.34 and $5.41, respectively. The
fair value of these options was computed at the date of grant using a
Black-Scholes option pricing model with the following weighted-average
assumptions for 1995, 1996 and 1997, respectively: risk-free interest rates of
6.3%, 6.2% and 6.3%; dividend yields of 0.0% for all years presented, volatility
factors of the expected market price of the Company's common stock of 33.0% for
all years presented and a weighted-average expected life of the options of 7, 7
and 5 years, respectively.
The Black-Scholes option valuation model was developed for use in computing
the fair value of traded options which have no vesting restrictions and are
fully transferable. In addition, option valuation models require the input of
highly subjective assumptions including the expected stock price volatility.
Because the Company's employee stock options have characteristics significantly
different from those of traded options, and because changes in the subjective
input assumptions can materially affect the fair value estimate, in management's
opinion, the existing models do not necessarily provide a reliable single
measure of the fair value of its employee stock options.
For purposes of pro forma disclosures, the computed fair value of the
options is amortized to expense over the options' vesting period. The Company's
pro forma information follows (in thousands, except per share data).
<TABLE>
<CAPTION>
1995 1996 1997
------- -------- --------
<S> <C> <C> <C>
Pro forma net loss.................................. $(1,587) $(23,817) $(13,943)
Pro forma net loss per share -- basic and diluted... $ (0.35) $ (4.10) $ (1.49)
</TABLE>
In conjunction with the acquisition of NAD, the Company issued warrants to
Martin-Brower. At December 28, 1996 and December 27, 1997, the warrants were
exercisable for 283,425 shares of Class B common stock at $12.35 per share
during the period from April 1, 1997 through March 31, 2000, and upon
consummation of certain transactions.
On November 15, 1996, the Company completed the issuance of 3,400,000
shares of Class A common stock (at a price of $14.00 per share) through an
initial public offering, resulting in net proceeds to the Company of
approximately $43.2 million, after deducting underwriting discounts and
commissions, and other offering costs of approximately $4.4 million. The net
proceeds of the offering were used: (i) to prepay $15 million in outstanding
principal and $1.1 million in accrued interest under a subordinated note payable
to Onex; (ii) to prepay, at a discount, $10 million in outstanding principal and
$0.1 million in
F-48
<PAGE> 170
PROSOURCE, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
accrued interest under a subordinated note payable to Martin-Brower for a total
payment of $9.2 million and (iii) to repay $16.6 million of outstanding
indebtedness under the Company's revolving-credit facility, after deducting a
$1.3 million payment concurrent with the offering for the termination of a
consulting agreement between the Company and certain former owners of an
acquired company. Also in connection with the initial public offering, the
Company incurred a noncash charge of $4 million resulting from the issuance to
Onex of 285,714 shares of Class B common stock valued at the initial
public-offering price in exchange for the agreement of Onex to relinquish its
rights to receive an annual fee, previously paid in cash, for management
services rendered to the Company.
Under the ProSource, Inc. 1997 Employee Stock Purchase Plan, which was
approved by the shareholders in April 1997, employees of the Company purchased a
total of 33,799 shares of Class A common stock at $6.035 per share in 1997. In
January 1998, an additional 30,336 shares of Class A common stock were purchased
by employees at $6.035 per share under this plan.
11. CONTINGENCIES AND GUARANTEES
The Company has guaranteed the principal due on certain loans obtained by
its officers and employees in connection with the purchase of common stock under
the Stock Plan. At December 27, 1997, such guarantees amounted to approximately
$0.8 million and were covered by a letter of credit. At December 27, 1997, the
Company was also obligated for $15.0 million in other letters of credit issued
on behalf of the Company primarily as a guarantee of payment for obligations
arising from workers' compensation claims. At December 27, 1997, the Company had
$9.2 million available in unused letters of credit under its Existing Credit
Facilities.
The Company and its subsidiaries are parties to various legal actions
arising in the ordinary course of business. Management believes that the outcome
of such cases will not have a material adverse effect on the consolidated
results of operations or the financial position of the Company.
12. CONCENTRATIONS OF CREDIT RISK
Burger King Corporation owned and franchisee-owned Burger King restaurants
collectively accounted for 45%, 41% and 46% of the Company's sales in fiscal
years 1995, 1996 and 1997, respectively. Sales to Burger King-owned restaurants
represented approximately 5% of sales for each of the aforementioned years.
Amounts due from BKC-owned restaurants at December 28, 1996 and December 27,
1997 were $5.5 million and $5.8 million, respectively.
In addition, sales to Darden Restaurants, Inc. (owner of Red Lobster and
Olive Garden restaurants) accounted for 18%, 20%, and 21% of the Company's sales
in fiscal years 1995, 1996 and 1997, respectively. Amounts due from Darden
Restaurants, Inc. at December 28, 1996 and December 27, 1997, were approximately
$41.1 million and $41.4 million, respectively.
Sales to company-owned and franchisee-owned Arby's restaurants accounted
for 10% of Company sales in fiscal years 1995 and 1996. No other customer or
restaurant concept accounted for more than 10% of the Company's sales in fiscal
years 1995, 1996 or 1997. The Company periodically performs credit evaluations
on its customers' financial condition and generally does not require collateral.
13. CUMULATIVE EFFECT OF A CHANGE IN ACCOUNTING PRINCIPLE
During the fourth quarter of 1997, the Financial Accounting Standards
Board's Emerging Issues Task Force reached a consensus on Issue No. 97-13,
"Accounting for Costs Incurred in Connection with a Consulting Contract or an
Internal Project that Combines Business Process Reengineering and Information
Technology Transformation." The consensus requires that the cost of business
process reengineering activities, whether done internally or by third parties,
is to be expensed as incurred. As a result, any
F-49
<PAGE> 171
PROSOURCE, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
remaining unamortized portion of previously capitalized business process
reengineering costs is required to be written off. The cumulative impact of
initially conforming to this new standard in the fourth quarter of 1997 was
reported as a change in accounting principle in the accompanying consolidated
statements of operations, with a cumulative charge, net of tax, of $6.4 million,
or $0.69 per share.
14. NET LOSS PER SHARE
For all years presented in the accompanying consolidated statements of
operations, all stock options and other potential common shares were excluded
from the calculation of diluted loss per share, since they would produce
anti-dilutive results. As a result, there are no reconciling items to the
numerator and denominator of the basic and diluted loss per share computations.
The following were outstanding during fiscal 1997, but were excluded from
the computation of diluted net loss per common share for fiscal 1997.
<TABLE>
<CAPTION>
RELATED NUMBER OF CONVERSION PRICE
COMMON STOCK SHARES PER SHARE EXPIRATION
------------------------ ---------------- ----------------
<S> <C> <C> <C>
Options -- 1995
288,650 shares -- Class
Option Plan................. B $10.00 or $11.00 December 2000
Options -- 1996 November 2006 to
340,500 shares -- Class
Option Plan................. B $ 14.00 January 2007
Options -- 1997
Directors Plan.............. 10,500 shares -- Class A $ 5.25 April 2007
283,425 shares -- Class
Stock Warrants................ B $ 12.35 March 2000
$0.5 million convertible
subordinated note........... 25,000 shares -- Class A $ 20.00 November 1999
</TABLE>
15. SUBSEQUENT EVENT
On January 29, 1998, the Company signed a definitive merger agreement with
AmeriServe Food Distribution, Inc. Under the terms of the agreement, AmeriServe
has agreed to pay $15.00 in cash for each outstanding share of the Company's
common stock. In addition, under the agreement, all outstanding options will be
accelerated and option holders will receive $15.00 less the applicable exercise
for each share issuable upon exercise of the options. AmeriServe has indicated
that it intends to refinance all of the Company's outstanding debt.
The merger is subject to regulatory approvals and other customary
conditions to closing. Onex Corporation and certain of its affiliates, which own
approximately 61% of the Company's outstanding stock, representing approximately
85% of the voting power, have committed to vote in favor of the merger, which
will assure the necessary shareholder approval. The merger is expected to close
in the second quarter of fiscal 1998.
F-50
<PAGE> 172
- ------------------------------------------------------
- ------------------------------------------------------
NO DEALER, SALESPERSON, OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS IN CONNECTION WITH THIS OFFERING
OTHER THAN THOSE CONTAINED IN THIS PROSPECTUS AND, IF GIVEN OR MADE, SUCH
INFORMATION OR REPRESENTATION MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED
BY THE COMPANY OR THE INITIAL PURCHASERS. THIS PROSPECTUS DOES NOT CONSTITUTE AN
OFFER TO SELL OR A SOLICITATION OF AN OFFER TO BUY ANY SECURITIES OTHER THAN THE
SECURITIES TO WHICH IT RELATES, NOR DOES IT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY SUCH SECURITIES IN ANY JURISDICTION IN WHICH
SUCH OFFER OR SOLICITATION IS NOT AUTHORIZED, OR IN WHICH THE PERSON MAKING SUCH
OFFER OR SOLICITATION IS NOT QUALIFIED TO DO SO, OR TO ANY PERSON TO WHOM IT IS
UNLAWFUL TO MAKE SUCH AN OFFER OR SOLICITATION. NEITHER THE DELIVERY OF THIS
PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE
ANY IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF THE COMPANY
SINCE THE DATE HEREOF OR THAT THE INFORMATION CONTAINED HEREIN IS CORRECT AS OF
ANY TIME SUBSEQUENT TO ITS DATE.
------------------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Prospectus Summary.................... 4
The Company........................... 4
Risk Factors.......................... 10
Use of Proceeds....................... 15
Capitalization........................ 16
Selected Ameriserve Historical
Financial Data...................... 17
Management's Discussion and Analysis
of Financial Condition and Results
of Operations....................... 19
The Business.......................... 30
Management............................ 40
Security Ownership of Certain
Beneficial holders and Management... 48
Certain Relationships and Related
Transactions........................ 49
Description of Indebtedness........... 51
Description of Notes.................. 54
Description of Certain Federal Income
Tax Consequences.................... 110
Plan of Distribution.................. 114
Legal Matters......................... 115
Experts............................... 115
Index of Certain Defined Terms........ 116
Index to Unaudited Pro Forma
Consolidated Financial Statements... P-1
Index to Historical Financial
Statements.......................... F-1
</TABLE>
- ------------------------------------------------------
- ------------------------------------------------------
- ------------------------------------------------------
- ------------------------------------------------------
[AMERISERVE LOGO]
AmeriServe Food
Distribution, Inc.
8 7/8% New Senior Notes
Due 2006
10 1/8% New Senior
Subordinated Notes
Due 2007
------------------------
PROSPECTUS
------------------------
April , 1998
- ------------------------------------------------------
- ------------------------------------------------------
<PAGE> 173
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
Inapplicable.
ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 102(b)(7) of the General Corporation Law of the State of Delaware
(the "DGCL"), provides that a corporation (in its original certificate of
incorporation or an amendment thereto) may eliminate or limit the personal
liability of a director (or certain persons who, pursuant to the provisions of
the certificate of incorporation, exercise or perform duties conferred or
imposed upon directors by the DGCL) to the corporation or its stockholders for
monetary damages for breach of fiduciary duty as a director, provided that such
provisions shall not eliminate or limit the liability of a director (i) for any
breach of the director's duty of loyalty to the corporation or its stockholders,
(ii) for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) under Section 174 of the DGCL
(providing for liability of directors for unlawful payment of dividends or
unlawful stock purchases or redemptions) or (iv) for any transaction from which
the director derived an improper personal benefit. Article VIII, Section 1 of
the Company's Certificate of Incorporation limits the liability of directors
thereof to the extent permitted by Section 102(b)(7) of the DGCL.
Under Section 145 of the DGCL, in general, a corporation may indemnify its
directors, officers, employees or agents against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by them in connection with any action, suit or proceeding brought by
third parties to which they may be made parties by reason of their being or
having been directors, officers, employees or agents and shall so indemnify such
persons if they acted in good faith and in a manner they reasonably believed to
be in or not opposed to the best interest of the corporation and, with respect
to any criminal action or proceeding, had no reasonable cause to believe their
conduct was unlawful. Article VIII, Section 2(a) of the Company's Amended and
Restated Certificate of Incorporation provides that the Company shall indemnify
its officers, directors, employees and agents to the full extent permitted by
Delaware law.
Article VIII, Section 2(a) of the Company's Amended and Restated
Certificate of Incorporation also provides that the Company shall indemnify any
such person seeking indemnification in connection with a proceeding initiated by
such person only if such proceeding was authorized by the Board. Any rights to
indemnification conferred in Section 2 are contract rights, and include the
right to be paid by the Company the expenses incurred in defending any such
proceeding in advance of its final disposition, except that, if the DGCL
requires, the payment of such expenses incurred by a director or officer in such
capacity in advance of final disposition shall be made only upon delivery to the
Company of an undertaking by or on behalf of such director or officer, to repay
all amounts so advanced if it is ultimately determined that such director or
officer is not entitled to be indemnified under Section 2 or otherwise. By
action of the board of directors, the Company may extend such indemnification to
employees and agents of the Company.
ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES
On July 11, 1997, the Registrant consummated the offering of $500 million
of its 10 1/8% Senior Subordinated Notes due 2007 in exempt transactions under
Rule 144A and Regulation S under the Securities Act. The initial purchasers of
the securities were Donaldson, Lufkin & Jenrette Securities Corporation and
BancAmerica Robertson Stephens. The net proceeds of the sale were approximately
$483 million (after deducting discounts and commissions and estimated expenses
of the offering) and were used by AmeriServe to partially finance the PFS
Acquisition, the repayment of certain outstanding indebtedness and to provide
working capital. On December 12, 1997, AmeriServe consummated an exchange offer
pursuant to which all of the outstanding unregistered Senior Subordinated Notes
were exchanged for new
II-1
<PAGE> 174
Senior Subordinated Notes registered under the Securities Act, but otherwise
having substantially identical terms and conditions.
On October 15, 1997, the Registrant consummated the offering of $350
million of its 8 7/8% Senior Notes due 2006 in exempt transactions under Rule
144A and Regulation S under the Securities Act. The initial purchasers of the
securities were Donaldson, Lufkin & Jenrette Securities Corporation and
BancAmerica Robertson Stephens. The net proceeds of the sale were approximately
$339 million (after deducting discounts and commissions and estimated expenses
of the offering) and were used by AmeriServe to repay certain term loans and
provide cash for working capital and other general corporate purposes. On
December 12, 1997, AmeriServe consummated an exchange offer pursuant to which
all of the outstanding unregistered Senior Notes were exchanged for new Senior
Notes registered under the Securities Act, but otherwise having substantially
identical terms and conditions.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
(A) EXHIBITS.
<TABLE>
<S> <C>
2.1 Asset Purchase Agreement between PepsiCo, Inc. and Nebco
Evans Holding Company (incorporated by reference to Exhibit
2.2 to the Registrant's Registration Statement Form S-4 No.
333-33225 filed August 8, 1997).
2.2 Agreement and Plan of Merger, dated as of January 29, 1998,
by and among AmeriServe Food Distribution, Inc., Steamboat
Acquisition Corp. and ProSource, Inc. (incorporated by
reference to Exhibit 2.1 to the Registrant's Current Report
on Form 8-K, dated January 29, 1998).
2.3 Voting Agreement, dated as of January 29, 1998, by and among
AmeriServe Food Distribution, Inc., Steamboat Acquisition
Corp. and Onex DHC LLC and certain of its affiliates
(incorporated by reference to Exhibit 2.2 to the
Registrant's Current Report on Form 8-K, dated January 29,
1998).
3.1 Amended and Restated Certificate of Incorporation of
AmeriServe Food Distribution, Inc. (formerly AmeriServ Food
Company, successor to AmeriServe Food Distribution, Inc.).
(incorporated by reference to Exhibit 3.1 to the
Registrant's Annual Report on Form 10-K filed March 27,
1998).
3.2 Amended and Restated Bylaws of AmeriServe Food Distribution,
Inc. (formerly AmeriServ Food Company, successor to
AmeriServe Food Distribution, Inc.) (incorporated by
reference to Exhibit 3.2 to the Registrant's Annual Report
on Form 10-K filed March 27, 1998).
3.3 Articles of Incorporation of AmeriServe Transportation, Inc.
(incorporated by reference to Exhibit 3.5 to the
Registrant's Registration Statement on Form S-4 No.
333-33225 filed August 8, 1997).
3.4 By-Laws of AmeriServe Transportation, Inc. (incorporated by
reference to Exhibit 3.6 to the Registrant's Registration
Statement on Form S-4 No. 333-33225 filed August 8, 1997).
3.5 Articles of Incorporation of Chicago Consolidated
Corporation (incorporated by reference to Exhibit 3.7 to the
Registrant's Registration Statement on Form S-4 No.
333-33225 filed August 8, 1997).
3.6 By-Laws of Chicago Consolidated Corporation (incorporated by
reference to Exhibit 3.8 to the Registrant's Registration
Statement on Form S-4 No. 333-33225 filed August 8, 1997).
3.7 Articles of Incorporation of Northland Transportation
Services, Inc. (incorporated by reference to Exhibit 3.9 to
the Registrant's Registration Statement on Form S-4 No.
333-33225 filed August 8, 1997).
3.8 By-Laws of Northland Transportation Services, Inc.
(incorporated by reference to Exhibit 3.10 to the
Registrant's Registration Statement on Form S-4 No.
333-33225 filed August 8, 1997).
3.9 Articles of Incorporation of Delta Transportation, Ltd.
(incorporated by reference to Exhibit 3.13 to the
Registrant's Registration Statement on Form S-4 No.
333-33225 filed August 8, 1997).
3.10 By-Laws of Delta Transportation, Ltd. (incorporated by
reference to Exhibit 3.14 to the Registrant's Registration
Statement on Form S-4 No. 333-33225 filed August 8, 1997).
3.11 Articles of Incorporation of PSD Transportation Service,
Inc.
</TABLE>
II-2
<PAGE> 175
<TABLE>
<S> <C>
3.12 By-Laws of PSD Transportation Services, Inc.
3.13 Certificate of PSC Services of Florida, Inc.
3.14 By-Laws of PSC Services of Florida, Inc.
3.15 Certificate of Incorporation of BroMar Services, Inc.
3.16 By-Laws of BroMar Services, Inc.
3.17 Certificate of Amendment to the Certificate of Incorporation
of BroMar Services, Inc.
3.18 Certificate of Incorporation of ProSource Mexico Holdings
Inc.
3.19 By-Laws of ProSource Mexico Holdings Inc.
4.1 Indenture, dated as of October 15, 1997, by and among the
Company, the Subsidiary Guarantors and State Street Bank and
Trust Company, with respect to the Senior Notes
(incorporated by reference to Exhibit 4.1 to the
Registrant's Registration Statement on Form S-4 No.
333-38337 filed October 21, 1997).
4.2 Form of New Senior Note (included as Exhibit A to Exhibit
4.1).
4.3 Form of New Note Guarantee (included as Exhibit D to Exhibit
4.1).
4.4 Supplemental 8 7/8% New Senior Notes Indenture, dated as of
December 23, 1997, by and among AmeriServe Food
Distribution, Inc., AmeriServ Food Company, and State Street
Bank and Trust Company, as Trustee (incorporated by
reference to Exhibit 4.2 to the Registrant's Current Report
on Form 8-K, dated December 28, 1997).
4.5 Indenture, dated as of July 11, 1997, by and among the
Company, the Subsidiary Guarantors and State Street Bank and
Trust Company, with respect to the new Senior Subordinated
Notes (incorporated by reference to Exhibit 4.1 of the
Registrant's Registration Statement on Form S-4 No.
333-33225 filed August 8, 1997).
4.6 Supplemental 10 1/8% New Senior Subordinated Notes
Indenture, dated as of December 23, 1997, by and among
AmeriServe Food Distribution, Inc., AmeriServ Food Company,
and State Street Bank and Trust Company, as Trustee
(incorporated by reference to Exhibit 4.1 to the
Registrant's Current Report on Form 8-K, dated December 28,
1997).
4.7 Purchase Agreement, by and among the Registrant, the
Subsidiary Guarantors, Donaldson, Lufkin & Jenrette
Securities Corporation and BancAmerica Securities dated as
of July 9, 1997 (incorporated by reference to Exhibit 4.4 to
the Registrant's Registration Statement Form S-4 No.
333-33225 filed August 8, 1997).
4.8 Purchase Agreement, by and among the Registrant, the
Subsidiary Guarantors, Donaldson, Lufkin & Jenrette
Securities Corporation and BancAmerica Robertson Stephens
dated as of October 8, 1997 (incorporated by reference to
Exhibit 4.4 to the Registrant's Registration Statement on
Form S-4 No. 333-38337 filed October 21, 1997).
4.9 Second Supplemental 8 7/8% New Senior Notes Indenture, dated
as of May 21, 1998, by and among AmeriServe Food
Distribution, Inc. and State Street Bank and Trust Company
(incorporated by Reference to Exhibit 4.1 to the
Registrant's Current Report on Form 8-K dated May 21, 1998).
4.10 Second Supplemental 10 1/8% New Senior Subordinated Notes
Indenture, dated as of December 23, 1997, by and among
AmeriServe Food Distribution, Inc., AmeriServ Food Company,
and State Street Bank and Trust Company (incorporated by
reference to Exhibit 4.3 to the Registrant's Current Report
on Form 8-K dated May 21, 1998).
5.1 Opinion of Wachtell, Lipton, Rosen & Katz.*
10.1 Registration Rights Agreement, dated as of July 11, 1997, by
and among the Registrant, the Subsidiary Guarantors and
Donaldson, Lufkin & Jenrette Securities Corporation
(incorporated by reference to Exhibit 10.1 to the
Registrant's Registration Statement on Form S-4 No.
333-33225 filed August 8, 1997).
10.2 Registration Rights Agreement, dated as of October 15, 1997,
by and among the Registrant, the Subsidiary Guarantors and
Donaldson, Lufkin & Jenrette Securities Corporation
(incorporated by reference to Exhibit 10.1 to the
Registrant's Registration Statement on Form S-4 No.
333-38337 filed October 21, 1997).
</TABLE>
II-3
<PAGE> 176
<TABLE>
<S> <C>
10.3 Employment Agreement, dated as of December 23, 1986 between
the Company and Raymond E. Marshall, as amended by Amendment
to Employment Agreement, dated as of January 1, 1995
(incorporated by reference to Exhibit 10.4 to the
Registrant's Registration Statement on Form S-4 No.
333-33225 filed August 8, 1997).
10.4 Employment Agreement, dated as of July 1, 1998 between the
Company and Thomas C. Highland.*
10.5 Employment Agreement, dated as of November 26, 1997 between
the Company and Kenneth R. Lane.*
10.6 Employment Agreement, dated as of August 15, 1997 between
the Company and Diana M. Moog.*
10.7 Amended and Restated Sales and Distribution Agreement dated
as of November 1, 1998, by and among PFS, Pizza Hut, Taco
Bell, Kentucky Fried Chicken Corporation and Kentucky Fried
Chicken of California, Inc.*
10.8 Third Amended and Restated Credit Agreement, dated as of May
21, 1998 among AmeriServe Food Distribution, Inc., Bank of
America National Trust and Savings Association, as
Administrative Agent, Donaldson, Lufkin & Jenrette
Securities Corporation, as Documentation Agent, Bank of
America National Trust and Savings Association, as Letter of
Credit Issuing Lender and the Other Financial Institutions
Party Thereto, Arranged by BancAmerica Robertson Stephens
(incorporated by reference to Exhibit 10.1 to the
Registrant's Quarterly Report on Form 10-Q filed November
10, 1998.)
10.9 First Amendment to Third Amended and Restated Credit
Agreement, dated as of July 24, 1998.*
10.10 Amended and Restated Pooling and Servicing Agreement, dated
as of July 28, 1998 among AmeriServe Funding Corporation,
AmeriServe Food Distribution, Inc. and Norwest Bank
Minnesota, N.A.*
10.11 Series 1998-1 Supplement to Pooling and Servicing Agreement,
dated as of July 28, 1998 among AmeriServe Funding
Corporation, AmeriServe Food Distribution, Inc. and Norwest
Bank Minnesota, N.A.*
10.12 Series 1998-3 Supplement to Pooling and Servicing Agreement,
dated as of December 18, 1998 among AmeriServe Funding
Corporation, AmeriServe Food Distribution, Inc. and Norwest
Bank Minnesota, N.A.*
10.13 Series 1998-4 Supplement to Pooling and Servicing Agreement,
dated as of December 18, 1998 among AmeriServe Funding
Corporation, AmeriServe Food Distribution, Inc. and Norwest
Bank Minnesota, N.A.*
10.14 Nebco Evans Holding Company 1998 Management Stock Option
Plan (incorporated by reference to Exhibit 4.2 to Nebco
Evans Holding Company's Registration Statement on Form S-8
No. 333-53095 filed on May 20, 1998.
12.1 Statement regarding computation of ratios.
21 Subsidiaries of the Registrant (incorporated by reference to
Exhibit 21 to the Registrant's Annual Report on Form 10-K
filed on March 25, 1999).
23.1 Consent of Ernst & Young LLP.
23.2 Consent of KPMG LLP.
23.3 Consent of KPMG LLP.
23.4 Consent of Wachtell, Lipton, Rosen & Katz (contained in
Exhibit 5.1).*
24.1 Power of Attorney.*
25.1 Statement of Eligibility and Qualification of Trustee on
Form T-1 of State Street Bank and Trust Company under the
Trust Indenture Act of 1939.*
27.1 Financial Data Schedule. (incorporated by reference to
Exhibit 27.1 to the Registrant's Annual Report on Form 10-K
filed on March 25, 1999).
</TABLE>
- ---------------
* Previously filed.
II-4
<PAGE> 177
(B) FINANCIAL STATEMENT SCHEDULE.
17. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
(a)(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 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. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high and of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than 20 percent change in the maximum aggregate
offering price set forth in the "Calculation of Registration Fee" table in
the effective registration statement.
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement.
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
II-5
<PAGE> 178
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of New York, State of New
York, on April 30, 1999.
AMERISERVE FOOD DISTRIBUTION, INC.
By: *
------------------------------------
John V. Holten
Chairman and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated and on April 30, 1999.
<TABLE>
<CAPTION>
NAME TITLE
<C> <S>
* Director, Chairman and Chief Executive
- -------------------------------------------------------- Officer
John V. Holten
/s/ DIANA M. MOOG Executive Vice President and Chief Financial
- -------------------------------------------------------- Officer
Diana M. Moog
/s/ STANLEY J. SZLAUDERBACH Vice President and Chief Accounting Officer
- --------------------------------------------------------
Stanley J. Szlauderbach
* Director and Vice Chairman
- --------------------------------------------------------
John R. Evans
* Director, Executive Vice President and Vice
- -------------------------------------------------------- Chairman
Raymond E. Marshall
* Director, and Assistant Secretary
- --------------------------------------------------------
Gunnar E. Klintberg
* Director
- --------------------------------------------------------
Daniel W. Crippen
*By: /s/ A. PETTER OSTBERG
---------------------------------------------------
A. Petter Ostberg
Attorney-in-Fact
</TABLE>
II-6
<PAGE> 179
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of New York, State of New
York, on April 30, 1999.
NORTHLAND TRANSPORTATION, LTD.
By: *
------------------------------------
John V. Holten
Chairman and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following person in the capacities
indicated and on April 30, 1999.
<TABLE>
<CAPTION>
NAME TITLE
<C> <S>
* Chairman and Chief Executive Officer
- --------------------------------------------------------
John V. Holten
/s/ DIANA M. MOOG Chief Financial Officer and Executive Vice
- -------------------------------------------------------- President
Diana M. Moog
/s/ STANLEY J. SZLAUDERBACH Vice President and Chief Accounting Officer
- --------------------------------------------------------
Stanley J. Szlauderbach
</TABLE>
*By: /s/A. PETTER OSTBERG
---------------------------
A. Petter Ostberg
Attorney-in-Fact
II-7
<PAGE> 180
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of New York, State of New
York, on April 30, 1999.
DELTA TRANSPORTATION, LTD.
By: *
------------------------------------
John V. Holten
Chairman and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following person in the capacities
indicated and on April 30, 1999.
<TABLE>
<CAPTION>
NAME TITLE
<C> <S>
* Chairman and Chief Executive Officer
- --------------------------------------------------------
John V. Holten
/s/ DIANA M. MOOG Chief Financial Officer and Executive Vice
- -------------------------------------------------------- President
Diana M. Moog
/s/ STANLEY J. SZLAUDERBACH Vice President and Chief Accounting Officer
- --------------------------------------------------------
Stanley J. Szlauderbach
</TABLE>
*By: /s/A. PETTER OSTBERG
---------------------------
A. Petter Ostberg
Attorney-in-Fact
II-8
<PAGE> 181
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of New York, State of New
York, on April 30, 1999.
CHICAGO CONSOLIDATED CORPORATION
By: *
------------------------------------
John V. Holten
Chairman and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following person in the capacities
indicated and on April 30, 1999.
<TABLE>
<CAPTION>
NAME TITLE
<C> <S>
* Chairman and Chief Executive Officer
- --------------------------------------------------------
John V. Holten
/s/ DIANA M. MOOG Chief Financial Officer and Executive Vice
- -------------------------------------------------------- President
Diana M. Moog
/s/ STANLEY J. SZLAUDERBACH Vice President and Chief Accounting Officer
- --------------------------------------------------------
Stanley J. Szlauderbach
</TABLE>
*By: /s/A. PETTER OSTBERG
---------------------------
A. Petter Ostberg
Attorney-in-Fact
II-9
<PAGE> 182
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of New York, State of New
York, on April 30, 1999.
AMERISERVE TRANSPORTATION, INC.
By: *
------------------------------------
John V. Holten
Chairman and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated and on April 30, 1999.
<TABLE>
<CAPTION>
NAME TITLE
<C> <S>
* Chairman and Chief Executive Officer
- --------------------------------------------------------
John V. Holten
/s/ DIANA M. MOOG Chief Financial Officer and Executive Vice
- -------------------------------------------------------- President
Diana M. Moog
/s/ STANLEY J. SZLAUDERBACH Vice President and Chief Accounting Officer
- --------------------------------------------------------
Stanley J. Szlauderbach
</TABLE>
*By: /s/A. PETTER OSTBERG
---------------------------
A. Petter Ostberg
Attorney-in-Fact
II-10
<PAGE> 183
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of New York, State of New
York, on April 30, 1999.
PROSOURCE MEXICO HOLDINGS, INC.
By: *
------------------------------------
John V. Holten
Chairman and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated and on April 30, 1999.
<TABLE>
<CAPTION>
NAME TITLE
<C> <S>
* Chairman and Chief Executive Officer
- --------------------------------------------------------
John V. Holten
/s/ DIANA M. MOOG Chief Financial Officer and Executive Vice
- -------------------------------------------------------- President
Diana M. Moog
/s/ STANLEY J. SZLAUDERBACH Vice President and Chief Accounting Officer
- --------------------------------------------------------
Stanley J. Szlauderbach
</TABLE>
*By: /s/A. PETTER OSTBERG
---------------------------
A. Petter Ostberg
Attorney-in-Fact
II-11
<PAGE> 184
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of New York, State of New
York, on April 30, 1999.
PSC SERVICES OF FLORIDA, INC.
By: *
------------------------------------
John V. Holten
Chairman and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated and on April 30, 1999.
<TABLE>
<CAPTION>
NAME TITLE
<C> <S>
* Chairman and Chief Executive Officer
- --------------------------------------------------------
John V. Holten
/s/ DIANA M. MOOG Chief Financial Officer and Executive Vice
- -------------------------------------------------------- President
Diana M. Moog
/s/ STANLEY J. SZLAUDERBACH Vice President and Chief Accounting Officer
- --------------------------------------------------------
Stanley J. Szlauderbach
</TABLE>
*By: /s/A. PETTER OSTBERG
---------------------------
A. Petter Ostberg
Attorney-in-Fact
II-12
<PAGE> 185
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of New York, State of New
York, on April 30, 1999.
PSD TRANSPORTATION SERVICES, INC.
By: *
------------------------------------
John V. Holten
Chairman and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated and on April 30, 1999.
<TABLE>
<CAPTION>
NAME TITLE
<C> <S>
* Chairman and Chief Executive Officer
- --------------------------------------------------------
John V. Holten
/s/ DIANA M. MOOG Chief Financial Officer and Executive Vice
- -------------------------------------------------------- President
Diana M. Moog
/s/ STANLEY J. SZLAUDERBACH Vice President and Chief Accounting Officer
- --------------------------------------------------------
Stanley J. Szlauderbach
</TABLE>
*By: /s/A. PETTER OSTBERG
---------------------------
A. Petter Ostberg
Attorney-in-Fact
II-13
<PAGE> 186
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of New York, State of New
York, on April 30, 1999.
ASNSC, INC.
By: *
------------------------------------
John V. Holten
Chairman and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated and on April 30, 1999.
<TABLE>
<CAPTION>
NAME TITLE
<C> <S>
* Chairman and Chief Executive Officer
- --------------------------------------------------------
John V. Holten
/s/ DIANA M. MOOG Chief Financial Officer and Executive Vice
- -------------------------------------------------------- President
Diana M. Moog
/s/ STANLEY J. SZLAUDERBACH Vice President and Chief Accounting Officer
- --------------------------------------------------------
Stanley J. Szlauderbach
</TABLE>
*By: /s/A. PETTER OSTBERG
---------------------------
A. Petter Ostberg
Attorney-in-Fact
II-14
<PAGE> 187
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ------- -----------
<S> <C>
2.1 Asset Purchase Agreement between PepsiCo, Inc. and Nebco
Evans Holding Company (incorporated by reference to Exhibit
2.2 to the Registrant's Registration Statement Form S-4 No.
333-33225 filed August 8, 1997).
2.2 Agreement and Plan of Merger, dated as of January 29, 1998,
by and among AmeriServe Food Distribution, Inc., Steamboat
Acquisition Corp. and ProSource, Inc. (incorporated by
reference to Exhibit 2.1 to the Registrant's Current Report
on Form 8-K, dated January 29,1998).
2.3 Voting Agreement, dated as of January 29, 1998, by and among
AmeriServe Food Distribution, Inc., Steamboat Acquisition
Corp. and Onex DHC LLC and certain of its affiliates
(incorporated by reference to Exhibit 2.2 to the
Registrant's Current Report on Form 8-K, dated January 29,
1998).
3.1 Amended and Restated Certificate of Incorporation of
AmeriServe Food Distribution, Inc. (formerly AmeriServ Food
Company, successor to AmeriServe Food Distribution, Inc.).
(incorporated by reference to Exhibit 3.1 to the
Registrant's Annual Report on Form 10-K filed March 27,
1998).
3.2 Amended and Restated Bylaws of AmeriServe Food Distribution,
Inc. (formerly AmeriServ Food Company, successor to
AmeriServe Food Distribution, Inc.) (incorporated by
reference to Exhibit 3.2 to the Registrant's Annual Report
on Form 10-K filed March 27, 1998).
3.3 Articles of Incorporation of AmeriServe Transportation, Inc.
(incorporated by reference to Exhibit 3.5 to the
Registrant's Registration Statement on Form S-4 No.
333-33225 filed August 8, 1997).
3.4 By-Laws of AmeriServe Transportation, Inc. (incorporated by
reference to Exhibit 3.6 to the Registrant's Registration
Statement on Form S-4 No. 333-33225 filed August 8, 1997).
3.5 Articles of Incorporation of Chicago Consolidated
Corporation (incorporated by reference to Exhibit 3.7 to the
Registrant's Registration Statement on Form S-4 No.
333-33225 filed August 8, 1997).
3.6 By-Laws of Chicago Consolidated Corporation (incorporated by
reference to Exhibit 3.8 to the Registrant's Registration
Statement on Form S-4 No. 333-33225 filed August 8, 1997).
3.7 Articles of Incorporation of Northland Transportation
Services, Inc. (incorporated by reference to Exhibit 3.9 to
the Registrant's Registration Statement on Form S-4 No.
333-33225 filed August 8, 1997).
3.8 By-Laws of Northland Transportation Services, Inc.
(incorporated by reference to Exhibit 3.10 to the
Registrant's Registration Statement on Form S-4 No.
333-33225 filed August 8, 1997).
3.9 Articles of Incorporation of Delta Transportation, Ltd.
(incorporated by reference to Exhibit 3.13 to the
Registrant's Registration Statement on Form S-4 No.
333-33225 filed August 8, 1997).
3.10 By-Laws of Delta Transportation, Ltd. (incorporated by
reference to Exhibit 3.14 to the Registrant's Registration
Statement on Form S-4 No. 333-33225 filed August 8, 1997).
3.11 Articles of Incorporation of PSD Transportation Services,
Inc.
3.12 By-Laws of PSD Transportation Services, Inc.
3.13 Certificate of PSC Services of Florida, Inc.
3.14 By-Laws of PSC Services of Florida, Inc.
3.15 Certificate of Incorporation of BroMar Services, Inc.
</TABLE>
<PAGE> 188
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ------- -----------
<S> <C>
3.16 By-Laws of BroMar Services, Inc.
3.17 Certificate of Amendment to the Certificate of Incorporation
of BroMar Services, Inc.
3.18 Certificate of Incorporation of ProSource Mexico Holdings
Inc.
3.19 By-Laws of ProSource Mexico Holdings Inc.
4.1 Indenture, dated as of October 15, 1997, by and among the
Company, the Subsidiary Guarantors and State Street Bank and
Trust Company, with respect to the Senior Notes
(incorporated by reference to Exhibit 4.1 to the
Registrant's Registration Statement on Form S-4 No.
333-38337 filed October 21, 1997).
4.2 Form of New Senior Note (included as Exhibit A to Exhibit
4.1).
4.3 Form of New Note Guarantee (included as Exhibit D to Exhibit
4.1).
4.4 Supplemental 8 7/8% New Senior Notes Indenture, dated as of
December 23, 1997, by and among AmeriServe Food
Distribution, Inc., AmeriServ Food Company, and State Street
Bank and Trust Company, as Trustee (incorporated by
reference to Exhibit 4.2 to the Registrant's Current Report
on Form 8-K, dated December 28, 1997).
4.5 Indenture, dated as of July 11, 1997, by and among the
Company, the Subsidiary Guarantors and State Street Bank and
Trust Company, with respect to the new Senior Subordinated
Notes (incorporated by reference to Exhibit 4.1 of the
Registrant's Registration Statement on Form S-4 No.
333-33225 filed August 8, 1997).
4.6 Supplemental 10 1/8% New Senior Subordinated Notes
Indenture, dated as of December 23, 1997, by and among
AmeriServe Food Distribution, Inc., AmeriServ Food Company,
and State Street Bank and Trust Company, as Trustee
(incorporated by reference to Exhibit 4.1 to the
Registrant's Current Report on Form 8-K, dated December 28,
1997).
4.7 Purchase Agreement, by and among the Registrant, the
Subsidiary Guarantors, Donaldson, Lufkin & Jenrette
Securities Corporation and BancAmerica Securities dated as
of July 9, 1997 (incorporated by reference to Exhibit 4.4 to
the Registrant's Registration Statement Form S-4 No.
333-33225 filed August 8, 1997).
4.8 Purchase Agreement, by and among the Registrant, the
Subsidiary Guarantors, Donaldson, Lufkin & Jenrette
Securities Corporation and BancAmerica Robertson Stephens
dated as of October 8, 1997 (incorporated by reference to
Exhibit 4.4 to the Registrant's Registration Statement on
Form S-4 No. 333-38337 filed October 21, 1997).
4.9 Second Supplemental 8 7/8% New Senior Notes Indenture, dated
as of May 21, 1998, by and among AmeriServe Food
Distribution, Inc. and State Street Bank and Trust Company
(incorporated by Reference to Exhibit 4.1 to the
Registrant's Current Report on Form 8-K dated May 21, 1998).
4.10 Second Supplemental 10 1/8% New Senior Subordinated Notes
Indenture, dated as of December 23, 1997, by and among
AmeriServe Food Distribution, Inc., AmeriServ Food Company,
and State Street Bank and Trust Company (incorporated by
reference to Exhibit 4.3 to the Registrant's Current Report
on Form 8-K dated May 21, 1998).
5.1 Opinion of Wachtell, Lipton, Rosen & Katz.*
10.1 Registration Rights Agreement, dated as of July 11, 1997, by
and among the Registrant, the Subsidiary Guarantors and
Donaldson, Lufkin & Jenrette Securities Corporation
(incorporated by reference to Exhibit 10.1 to the
Registrant's Registration Statement on Form S-4 No.
333-33225 filed August 8, 1997).
10.2 Registration Rights Agreement, dated as of October 15, 1997,
by and among the Registrant, the Subsidiary Guarantors and
Donaldson, Lufkin & Jenrette Securities Corporation
(incorporated by reference to Exhibit 10.1 to the
Registrant's Registration Statement on Form S-4 No.
333-38337 filed October 21, 1997).
</TABLE>
<PAGE> 189
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ------- -----------
<S> <C>
10.3 Employment Agreement, dated as of December 23, 1986 between
the Company and Raymond E. Marshall, as amended by Amendment
to Employment Agreement, dated as of January 1, 1995
(incorporated by reference to Exhibit 10.4 to the
Registrant's Registration Statement on Form S-4 No.
333-33225 filed August 8, 1997).
10.4 Employment Agreement, dated as of July 1, 1998 between the
Company and Thomas C. Highland.*
10.5 Employment Agreement, dated as of November 26, 1997 between
the Company and Kenneth R. Lane.*
10.6 Employment Agreement, dated as of August 15, 1997 between
the Company and Diana M. Moog.*
10.7 Amended and Restated Sales and Distribution Agreement dated
as of November 1, 1998, by and among PFS, Pizza Hut, Taco
Bell, Kentucky Fried Chicken Corporation and Kentucky Fried
Chicken of California, Inc.*
10.8 Third Amended and Restated Credit Agreement, dated as of May
21, 1998 among AmeriServe Food Distribution, Inc., Bank of
America National Trust and Savings Association, as
Administrative Agent, Donaldson, Lufkin and Jenrette
Securities Corporation, as Documentation Agent, Bank of
America National Trust and Savings Association, as Letter of
Credit Issuing Lender and the Other Financial Institutions
Party Thereto, Arranged by BancAmerica Robertson Stephens
(incorporated by reference to Exhibit 10.1 to the
Registrant's Quarterly Report on Form 10-Q filed November
10, 1998.)
10.9 First Amendment to Third Amended and Restated Credit
Agreement, dated as of July 24, 1998.*
10.10 Amended and Restated Pooling and Servicing Agreement, dated
as of July 28, 1998 among AmeriServe Funding Corporation,
AmeriServe Food Distribution, Inc. and Norwest Bank
Minnesota, N.A.*
10.11 Series 1998-1 Supplement to Pooling and Servicing Agreement,
dated as of July 28, 1998 among AmeriServe Funding
Corporation, AmeriServe Food Distribution, Inc. and Norwest
Bank Minnesota, N.A.*
10.12 Series 1998-3 Supplement to Pooling and Servicing Agreement,
dated as of December 18, 1998 among AmeriServe Funding
Corporation, AmeriServe Food Distribution, Inc. and Norwest
Bank Minnesota, N.A.*
10.13 Series 1998-4 Supplement to Pooling and Servicing Agreement,
dated as of December 18, 1998 among AmeriServe Funding
Corporation, AmeriServe Food Distribution, Inc. and Norwest
Bank Minnesota, N.A.*
10.14 Nebco Evans Holding Company 1998 Management Stock Option
Plan (incorporated by reference >to Exhibit 4.2 to Nebco
Evans Holding Company's Registration Statement on Form S-8
No. 333-53095 filed on May 20, 1998.
12.1 Statement regarding computation of ratios.
21 Subsidiaries of the Registrant (incorporated by reference to
Exhibit 21 to the Registrant's Annual Report on Form 10-K
filed on March 25, 1999).
23.1 Consent of Ernst & Young LLP.
23.2 Consent of KPMG LLP.
23.3 Consent of KPMG LLP.
23.4 Consent of Wachtell, Lipton, Rosen & Katz (contained in
Exhibit 5.1).*
</TABLE>
<PAGE> 190
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ------- -----------
<S> <C>
24.1 Power of Attorney.*
25.1 Statement of Eligibility and Qualification of Trustee on
Form T-1 of State Street Bank and Trust Company under the
Trust Indenture Act of 1939.*
27.1 Financial Data Schedule. (incorporated by reference to
Exhibit 27.1 to the Registrant's Annual Report on Form 10-K
filed on March 25, 1999).
</TABLE>
- ------------------------------
* Previously filed.
<PAGE> 1
EXHIBIT 3.11
ARTICLES OF INCORPORATION
OF
PSD TRANSPORTATION SERVICES, INC.
A Nevada Corporation
KNOW ALL MEN BY THESE PRESENTS:
That I, the undersigned, for the purpose of forming a
corporation under the laws of the State of Nevada, relating to the general
corporation law.
I DO HEREBY CERTIFY THAT:
FIRST: The Name of the Corporation shall be:
PSD TRANSPORTATION SERVICES, INC.
SECOND: The address of Corporate Services of Nevada, Resident
Agent of this corporation, is to be located at 502 North Division Street, Carson
City, Nevada 89703.
THIRD: This corporation is authorized to carry on any lawful
business or enterprise. This corporation may conduct all or any part of its
business, and may hold, purchase, mortgage, lease and convey real and/or
personal property anywhere in the world.
FOURTH: The total amount of authorized capital stock of this
corporation is one thousand (1,000) shares, said shares having a par value of
$.01 (1(cent)) and are non assessable. The Board of Directors has the authority
to prescribe, by resolution, the classes, series, number of each class and
series, voting powers,
<PAGE> 2
designations, preferences, limitations, restrictions and relative rights of each
class and series of stock.
FIFTH: The members of the governing board of this corporation
shall be styled as directors over the age of eighteen (18) and their number
shall be not less than one. The initial director of this corporation shall be
one, and the name and address of the initial director is:
David R. Parker
930 Castile Avenue
Coral Gables, CA 33134
SIXTH: The name and address of the incorporator is as
follows:
Don Harmer
502 North Division St.
Carson City, Nevada 89703
SEVENTH: The period of existence of this corporation shall be
perpetual.
EIGHTH: No director, officer or shareholder of this
corporation shall have personal liability for damages for breach of any
fiduciary duty as a director or officer to the corporation, its shareholders or
any other person except for:
(A) Acts or omissions which involve intentional
misconduct, fraud or a knowing violation of
law;
or
(B) The payment of dividends in violation of NRS
78.300
<PAGE> 3
I, the undersigned, for the purpose of forming a corporation
under the laws of the State of Nevada, do make, file and record this
certificate, and do certify that the facts herein stated are true and I have
accordingly hereunto set my hand and seal this day: Thursday, July 31, 1997.
/s/ Don Harmer
--------------------------
Don Harmer
STATE OF NEVADA }
: ss.
CARSON CITY }
On this 31st day of July, 1997 personally appeared before me,
a notary public, Don Harmer, who acknowledged that they executed the above
instrument.
/s/ Michelle A. Dobbs
--------------------------
NOTARY PUBLIC
[Notary seal]
<PAGE> 1
EXHIBIT 3.12
BYLAWS
OF
PSD TRANSPORTATION SERVICES, INC.
A Nevada Corporation
ARTICLE I - OFFICES
The principal office of the corporation in the State of Nevada shall be located
in Reno, the office of the resident agent. The corporation may have such other
offices, either within or without the state of incorporation as the board of
directors may designate or as the business of the corporation may from time to
time require.
ARTICLE II - STOCKHOLDERS
1. Special Meetings.
Special meetings of the stockholders, for any purpose or purposes, unless
otherwise prescribed by statute, may be called by the president at the request
of the holders of not less than fifty percent of all the outstanding shares of
the corporation entitled to vote at the meeting. No regularly scheduled annual
meetings are required.
2. Place of Meeting.
The stockholders may designate any place, either within or without the
state as the place of meeting for any annual meeting or for any special meeting
called by the stockholders. A written waiver of notice signed by all
stockholders entitled to vote at a meeting may designate any place or means,
including telephonic for conducting a meeting either within or without the state
as the place/means for holding such meeting.
3. Notice of Meeting.
Written or printed notice stating the place, day and hour of the meeting
and the purpose or purposes for which the meeting is called, shall be delivered
not less than ten nor more than sixty days before the date of the meeting,
either personally or by mail, signed by the president or the secretary, to each
stockholder of record entitled to vote at such meeting. If mailed, such notice
shall be deemed to be delivered when deposited in the United States mail,
addressed to the stockholder at his address as it appears on the stock transfer
books of the corporation, with postage thereon prepaid.
4. Action by Stockholders Without Meeting.
Actions that are required to be taken by the stockholders at a meeting may
be taken without a meeting by written consent of the stockholders holding at
least a majority of the voting power.
<PAGE> 2
ARTICLE III - BOARD OF DIRECTORS
1. Number and Qualifications.
The business affairs of the corporation shall be governed and controlled
by a board of directors who shall be elected by the stockholders at each annual
meeting of the stockholders, if any. Directors shall hold office until the next
annual stockholders' meeting and/or until their respective successors are
elected and qualified. In the event of failure to hold an election of directors
at any annual meeting of stockholders as provided herein, election of directors
may be held at a special meeting of the stockholders called for that purpose, or
by written consent of the stockholders holding at least a majority of the voting
power.
2. Cumulative Voting.
Each stockholder is entitled to vote in the election of directors as many
votes as equals the number of his shares of stock multiplied by the number of
directors to be elected. He may cast all of such votes for a single director or
may distribute them among the number to be voted for or any two or more of them
as he may see fit.
3. Recall of Directors.
At any time upon the affirmative vote of two-thirds of the shares entitled
to vote at the meeting whereat such action shall be proposed, any director may
be recalled and removed from office. If any director shall be so recalled and
removed from office, a successor shall be elected at the meeting at which the
resolution of recall and removal is adopted to serve the balance of the term of
such recalled director.
4. Vacancies.
Except as otherwise provided by law, vacancies in the board of directors,
regardless of cause, may be filled by a majority of the remaining directors
attending the meeting of the board of directors, if notice shall be given to all
of the remaining directors that such vacancy would be filled at the meeting. A
director thus elected shall hold office for the ongoing term of his predecessor
and until his successor is elected and qualified.
5. Board of Directors' Meetings.
The directors shall hold an annual board meeting and as many special
meetings as may be necessary throughout the year to effectively manage the
corporation and fulfill their fiduciary obligations to the corporation. The
directors need not physically meet to fulfill this obligation but may conduct
meetings and act by written unanimous and signed consent of all members of the
board of directors.
6. Place of Meeting.
The directors may designate any place, either within or without the state
as the place of meeting for any annual meeting or for any special meeting called
by the directors. A written
-2-
<PAGE> 3
waiver of notice signed by all directors entitled to vote at a meeting may
designate any place or means, including telephonic for conducting a meeting,
either within or without the state as the place/means for holding such meeting.
7. Notice of Meeting.
Written or printed notice stating the place, day and hour of the meeting
and the purpose or purposes for which the meeting is called, shall be delivered
not less than ten nor more than sixty days before the date of the meeting,
either personally or by mail, signed by the president or the secretary, to each
director of record entitled to vote at such meeting. If mailed, such notice
shall be deemed to be delivered when deposited in the United States mail,
addressed to the director at his last known address, with postage thereon
prepaid.
ARTICLE IV - OFFICERS
1. Officers Enumerated Election.
The officers of the corporation shall be a President, a Vice President, a
Secretary and a Treasurer, all of whom shall be elected by the board of
directors at the annual meeting thereof, to hold office for the term of one
year, and until their respective successors are elected and qualified.
2. President.
The president shall exercise the usual executive powers pertaining to the
office of president and preside at the meetings of directors and stockholders.
He shall execute all authorized deeds, instruments, documents and contracts on
behalf of the corporation and in its name, all of which shall be valid and
binding upon the corporation upon his signature alone, provided, however, that
all certificates of stock of the corporation shall be countersigned by the
secretary.
3. Vice President.
The vice-president shall have such powers and perform such duties as may
be assigned to him by the board of directors. The vice-president shall be vested
with the powers and perform the duties of the president, at such times, as the
board of directors shall determine that the president is absent from his office
or unable to perform his duties by reason of disability. The vice-president
shall have the powers and perform the duties of the president when the president
refuses to or is unable to perform his duties.
4. Secretary.
It shall be the duty of the secretary to keep the records of the
proceedings of the directors and stockholders, to attest all certificates of
stock with the president and when requested by the president to do so, to sign
and execute with the president all deeds, bonds, contracts and other obligations
or instruments in the name of the corporation, to keep the corporate seal, if
any, and
-3-
<PAGE> 4
affix the same to certificates of stock and other proper documents, to keep a
record of the issuance of certificates of stock and to transfer the same, and to
perform such other duties as the board of directors may from time to time
designate.
5. Treasurer.
The treasurer shall have the care and custody and be responsible for all
funds and securities of the corporation, and shall keep regular books of account
in accordance with standard accounting practices. He shall deposit all funds and
other valuable effects of the corporation in such depository or bank as shall
from time to time be designated by the board of directors. In addition to the
foregoing duties and responsibilities, the treasurer shall have and perform such
duties as the board of directors may from time to time designate.
6. Vacancies.
Vacancies in any office regardless of cause, may be filled by the board of
directors at any regular or special meeting.
7. Other Officers and Agents.
The board of directors may from time to time appoint such other officers
and agents as it shall deem necessary or expedient, who shall hold their offices
for such terms, and shall exercise such powers and perform such duties as shall
be determined by the board of directors.
8. Officers' Meetings.
The officers of the corporation need not hold annual meetings.
9. Place of Meeting.
The officers may designate any place, either within or without the state
as the place of meeting for any meeting called by the officers. A written waiver
of notice signed by all officers entitled to vote at a meeting may designate any
place or means, including telephonic for conducting a meeting, either within or
without the state as the place/means for holding such meeting.
10. Notice of Meeting.
Written or printed notice stating the place, day and hour of the meeting
and the purpose or purposes for which the meeting is called, shall be delivered
not less than three nor more than sixty days before the date of the meeting,
either personally or by mail, signed by the president or the secretary, to each
officer of record entitled to vote at such meeting. If mailed, such notice shall
be deemed to be delivered when deposited in the Unites States mail, addressed to
the officer at his last known address, with postage thereon prepaid.
-4-
<PAGE> 5
11. Salaries.
The salaries of all officers and agents of the corporation and all other
forms of compensation and benefits to such officers and agents shall be fixed
and determined by the board of directors.
12. Qualifications.
None of the officers of the corporation need be a director and
stockholder. Any two of the corporate offices may be combined into one office.
ARTICLE V - CAPITAL STOCK
1. Certificates.
Certificates of stock of the corporation shall be issued in numerical
order, and each stockholder shall be entitled to a certificate signed by the
president, attested by the secretary, and sealed with the corporate seal, if
any. Every certificate of stock shall state: (1) the state of incorporation; (2)
the name of the registered owner of the shares represented thereby; (3) the
number of shares which the certificate represents; (4) the par value of each
share represented or a statement that such shares have no par value; (5)
restrictions on transfer, if any, and (6) other matters required by law, if any.
2. Transfers.
Shares of stock may be transferred by delivery of the certificates
therefor, accompanied either by an assignment in writing on the back of the
certificate, or by a written power of attorney to sell, assign and transfer the
same, signed by the record holder of the certificate. No share of stock shall be
transferred on the books of the corporation until the outstanding certificates
therefor have been surrendered to the corporation.
3. Loss or Destruction.
In case of loss or destruction of any certificate of stock, another may be
issued in its place upon proof of such loss or destruction, and upon the giving
of a satisfactory bond of indemnity to the corporation. A new certificate may be
issued without requiring any bond, when in the judgment of the board of
directors, it is proper to do so.
ARTICLE VI - BOOKS AND RECORDS
1. Meetings and Shares.
The corporation shall keep: (1) complete records of all the proceedings of
the stockholders and the directors; and (2) a share register giving the names of
the registered holders of stock of the corporation showing their respective
addresses, the number of shares held by each, and the dates upon which they
acquired the said shares.
-5-
<PAGE> 6
2. Secretary Certifications.
Any person dealing with the corporation may rely upon a copy of any
records of the proceedings, resolutions, or votes of the board of directors or
stockholders, when certified as accurate by the secretary of the corporation.
3. Books.
The corporation shall keep appropriate and complete books of account.
ARTICLE VII - FISCAL YEAR
The fiscal year of the corporation will begin on January 1st and end on
the last Saturday in December of each calendar year.
ARTICLE VIII - AMENDMENT OF BY-LAWS
1. By Stockholders.
These bylaws may be amended, altered or repealed at any regular or any
special meeting of the stockholders if notice of the proposed amendment or
alteration is contained in the notice of meeting.
2. By Directors.
These bylaws may be amended, altered or repealed by the affirmative vote
of a majority of the whole board of directors at any regular or special meeting
of the board if notice of the proposed alteration or amendment is contained in
the notice of the meeting; provided, however, that the board of directors shall
not amend, alter or repeal any bylaw in such manner as to affect the
qualifications, classifications, term of office or compensation of the directors
in any way. Any action of the board of directors with respect to the amendment,
alteration or repeal of these bylaws is hereby made expressly subject to change
or repeal by the action of the stockholders.
ARTICLE IX - INDEMNIFICATION
Each director or officer now or hereafter serving the corporation, and
each person who, at the request of or on behalf of the corporation, is now
serving or hereafter serves as a director or officer of any other corporation
and the respective heirs, executors and administrators of each of them shall be
indemnified by the corporation against all costs, expenses, judgments and
liabilities, including attorneys' fees, reasonably incurred by or imposed upon
him in connection with or resulting from any action, suit or proceeding, civil
or criminal, in which he is or may be made a party by reason of his being or
having been such director or officer or by reason of any action alleged to have
been taken or omitted by him as a director or officer, whether or not he is a
director or officer at the time of incurring such costs, expenses, judgments and
liabilities, except in relations to matters to which he shall be finally
adjudged, without right of further appeal in such action, suit or proceedings,
to have been liable for willful misconduct in the performance of his duty as
such director or officer. Such indemnification shall be made with respect to
-6-
<PAGE> 7
adjudication other than on the merits and shall extend to settlements and
compromises. The foregoing right of indemnification shall not be exclusive of
other rights to which such director or officer may be entitled as a matter of
law.
ARTICLE X - CORPORATE SEAL
The corporate seal, if any, shall be in the form as affixed hereto below.
(SEAL)
ARTICLE XI - RESTRICTIONS ON TRANSFER OF SHARES
Shares of the corporation shall be subject to restrictions on transfer or
sale as follows:
1. A stockholder, which designation includes any transferee by operation of law,
who desires to sell and/or transfer all or any part of his stock, shall first
offer it in writing to the corporation, which shall have fifteen days to elect
in writing to purchase the said stock at its then fair market value. If the
corporation does not so elect, the secretary shall give written notice of such
fact to the non-selling stockholders on the earlier of the date of rejection or
expiration of the offer to the corporation, who shall have ten days after the
date of said notice to elect in writing to purchase it at said value. A
non-selling stockholder desiring to purchase such percentage of the stock as is
arrived at by dividing the number of shares owned by him by the total number
owned by all stockholders desiring to purchase. All notices shall be in writing
and shall be sent by certified or registered mail, postage prepaid.
2. The "then fair market value" is defined as: (1) the price agreed upon by the
parties; or (2) the price offered by a bona fide purchaser in writing, whether
offer the selling stockholder desires to accept. If neither (1) nor (2) applies,
then the value shall be established pursuant to arbitration under the laws of
the State of Nevada in which event all stockholders shall comply with said laws.
Whenever any selling stockholder wishes to establish value under (2) above, he
shall include with his offer to the corporation a copy of the written offer
which he proposes to accept, containing the name of the purchaser, his address
and all terms of purchase.
3. Failure to give notice of acceptance by the corporation or a stockholder
within the time allowed shall be deemed to be a rejection of the offer.
4. Terms of purchase under Paragraph 2(1) above shall be as agreed by the
parties, under Paragraph 2(2) above shall be in accordance with the written
offer, and if value is established by arbitration, shall be cash at closing. The
closing shall take place upon the earlier of acceptance by the corporation,
expiration of the option period, upon acceptance by a stockholder, or upon
receipt of the findings as to value by the arbiters should an arbitration
proceeding be held.
5. Stock transferred in any manner other than that delineated above or by
operation by law shall be deemed void.
-7-
<PAGE> 8
6. If the offers are rejected by the corporation and stockholders in writing,
the selling stockholder shall be free of all restrictions above mentioned.
-8-
<PAGE> 9
I, THE UNDERSIGNED, FOR THE PURPOSE OF FORMING A CORPORATION UNDER THE
LAWS OF THE STATE OF NEVADA, DO MAKE, FILE AND RECORD THIS CERTIFICATE, AND DO
CERTIFY THAT THE FACTS HEREIN STATED ARE TRUE AND I HAVE ACCORDINGLY HEREUNTO
SET MY HAND AND SEAL THIS DAY: THURSDAY, JULY 31, 1997.
/s/ Don Harmer
------------------------------
Don Harmer
<PAGE> 1
Exhibit 3.13
CERTIFICATE OF INCORPORATION
OF
PSC SERVICES OF FLORIDA, INC.
* * * * *
1. The name of the corporation is PSC Services of Florida, Inc.
2. The address of its registered office in the State of Delaware is
Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, County
of New Castle. The name of its registered agent at such address is The
Corporation Trust Company.
3. The nature of the business or purposes to be conducted or promoted is:
To engage in any lawful act or activity for which corporations may be
organized under the General Corporation Law of Delaware.
To manufacture, purchase or otherwise acquire, invest in, own,
mortgage, pledge, sell, assign and transfer or otherwise dispose of, trade, deal
in and deal with goods, wares and merchandise and personal property of every
class and description.
To acquire, and pay for in cash, stock or bonds of this corporation or
otherwise, the good will, rights, assets and property, and to undertake or
assume the whole or any part of the obligations or liabilities of any person,
firm, association or corporation.
To acquire, hold, use, sell, assign, lease, grant licenses in respect
of, mortgage or otherwise dispose of letters patent of the United States or any
foreign country, patent rights, licenses and privileges, inventions,
improvements and processes, copyrights, trademarks and trade names, relating to
or useful in connection with any business of this corporation.
To acquire by purchase, subscription or otherwise, and to receive,
hold, own, guarantee, sell, assign, exchange, transfer, mortgage, pledge or
otherwise dispose of or deal in and with any of the shares of the capital stock,
or any voting trust certificates in respect of the shares of capital stock,
scrip, warrants, rights, bonds, debentures, notes, trust receipts, and other
securities, obligations, choses in action and evidences of indebtedness or
interest issued or created by any corporations, joint stock companies,
syndicates, associations, firms, trusts or persons, public or private, or by the
government of the United States of America, or by any foreign government, or by
any state, territory, province, municipality or other political subdivision or
by any governmental agency, and as owner thereof to possess and exercise all the
rights, powers and privileges of ownership, including the right to execute
consents and vote thereon, and to do any and all acts and things necessary or
advisable for the preservation, protection, improvement and enhancement in value
thereof.
1
<PAGE> 2
To borrow or raise money for any of the purposes of the corporation
and, from time to time without limit as to amount, to draw, make, accept,
endorse, execute and issue promissory notes, drafts, bills of exchange,
warrants, bonds, debentures and other negotiable or non-negotiable instruments
and evidences of indebtedness, and to secure the payment of any thereof and of
the interest therein by mortgage upon or pledge, conveyance or assignment in
trust of the whole or any of the property of the corporation, whether at the
time owned or thereafter acquired, and to sell, pledge or otherwise dispose of
such bonds or other obligations of the corporation for its corporate purposes.
To purchase, receive, take by grant gift, devise, bequest or otherwise,
lease, or otherwise acquire, own, hold, improve, employ, use and otherwise deal
in and with real or personal property, or any interest therein, whenever
situated, and to sell, convey, lease, exchange, transfer or otherwise dispose
of, or mortgage or pledge, all or any of the corporation's property and assets,
or any interest therein, wherever situated.
In general, to possess and exercise all the powers and privileges granted
by the General Corporation Law of Delaware or by any other law of Delaware or by
this Certificate of Incorporation together with any powers incidental thereto,
so far as such powers and privileges are necessary or convenient to the conduct,
promotion or attainment of the business or purposes of the corporation.
The business and purposes specified in the foregoing clauses shall,
except where otherwise expressed, be in nowise limited or restricted by
reference to, or inference from, the terms of any other clause in this
Certificate of Incorporation, but the business and purposes specified in each of
the foregoing clauses of this article shall be regarded as independent business
and purposes.
4. The total number of shares of stock which the corporation shall have
authority to issue is One Hundred (100); all of such shares shall be without par
value.
5. The name and mailing address of each incorporator is as follows:
<TABLE>
<CAPTION>
NAME MAILING ADDRESS
- ---- ---------------
<S> <C>
M. A. Brzoska 1209 Orange Street
Wilmington, Delaware 19801
K. A. Widdoes 1209 Orange Street
Wilmington, Delaware 19801
L. J. Vitalo 1209 Orange Street
Wilmington, Delaware 19801
</TABLE>
The name and mailing address of each person, who is to serve as a
director until the first annual meeting of the stockholders or until a successor
is elected and qualified, is as follows:
2
<PAGE> 3
<TABLE>
<CAPTION>
NAME MAILING ADDRESS
- ---- ---------------
<S> <C>
David R. Parker 550 Biltmore Way, Coral Gables, Florida 33137
Thomas C. Highland 550 Biltmore Way, Coral Gables, Florida 33137
Williams F. Evans 550 Biltmore Way, Coral Gables, Florida 33137
</TABLE>
6. The corporation is to have perpetual existence.
7. Elections of directors need not be by written ballot unless the by-laws
of the corporation shall so provide.
Meetings of stockholders may be held within or without the State of
Delaware, as the by-laws may provide. The books of the corporation may be kept
(subject to any provision contained in the statutes) outside the State of
Delaware at such place or places as may be designated from time to time by the
board of directors or in the by-laws of the corporation.
Whenever a compromise or arrangement is proposed between this
corporation and its creditors or any class of them and/or between this
corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware may, on the application in a summary
way of this corporation or of any creditor or stockholder thereof or on the
application of any receiver or receivers appointed for this corporation under
the provisions of Section 291 of Title 8 of the Delaware Code or on the
application of trustees in dissolution or of any receiver or receivers appointed
for this corporation under the provisions of Section 279 of Title 8 of the
Delaware Code order a meeting of the creditors or class of creditors, and/or of
the stockholders or class of stockholders of this corporation, as the case may
be, to be summoned in such manner as the said court directs. If a majority in
number representing three-fourths in value of the creditors or class of
creditors, and/or of the stockholders or class of stockholders of this
corporation, as the case may be, agree to any compromise or arrangement and to
any reorganization of this corporation as consequence of such compromise or
arrangement, the said compromise or arrangement and the said reorganization
shall, if sanctioned by the court to which the said application has been made,
be binding on all the creditors or class of creditors, and/or on the
stockholders or class of stockholders, of this corporation, as the case may be,
and also on this corporation.
8. The corporation reserves the right to amend, alter, change or repeal
any provision contained in this Certificate of Incorporation, in the manner now
or hereafter prescribed by statute, and all rights conferred upon stockholders
herein are granted subject to this reservation.
9. A director of the corporation shall not be personally liable to the
corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director except for liability (i) for any breach of the director's
duty of loyalty to the corporation or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
3
<PAGE> 4
violation of law, (iii) under Section 174 of the Delaware General Corporation
Law, or (iv) for any transaction from which the director derived any improper
personal benefit.
WE, THE UNDERSIGNED, being each of the incorporators hereinbefore named,
for the purpose of forming a corporation pursuant to the General Corporation Law
of the State of Delaware, do make this Certificate, hereby declaring and
certifying that this is our act and deed and the facts herein stated are true,
and accordingly have hereunto set our hands this Second day of May, 1996.
/s/ M. A. Brzoska
-----------------
/s/ K. A. Widdoes
-----------------
/s/ L. J. Vitalo
----------------
4
<PAGE> 1
EXHIBIT 3.14
BY-LAWS OF
PSC SERVICES OF FLORIDA, INC.
ADOPTED: MAY 3, 1996
<PAGE> 2
TABLE OF CONTENTS
BY-LAWS OF
PSC SERVICES OF FLORIDA, INC.
<TABLE>
<CAPTION>
ARTICLES SECTION PAGE
- -------- ------- ----
<S> <C> <C>
ARTICLE 1 OFFICES 1
Section 1.1. Registered Office..................................................................... 1
Section 1.2. Other Offices......................................................................... 1
ARTICLE 2 MEETINGS OF SHAREHOLDERS 1
Section 2.1. Location of Meetings.................................................................. 1
Section 2.2. Annual Meetings....................................................................... 1
Section 2.3. Special Meeting....................................................................... 1
Section 2.4. Notice of Meetings.................................................................... 1
Section 2.5. Business of Meetings.................................................................. 2
Section 2.6. Quorum................................................................................ 2
Section 2.7. Majority.............................................................................. 2
Section 2.8. Voting................................................................................ 2
Section 2.9. Action by Consent..................................................................... 2
ARTICLE 3 DIRECTORS 3
Section 3.1. Number; Election...................................................................... 3
Section 3.2. Vacancies............................................................................. 3
Section 3.3. Powers................................................................................ 3
Section 3.4. Compensation.......................................................................... 3
Section 3.5. Removal............................................................................... 3
ARTICLE 4 MEETINGS OF THE BOARD OF DIRECTORS 4
Section 4.1. Location of Meetings.................................................................. 4
Section 4.2. First Meeting of New Board............................................................ 4
Section 4.3. Regular Meetings...................................................................... 4
Section 4.4. Special Meetings...................................................................... 4
Section 4.5. Notice of Meetings.................................................................... 4
Section 4.6. Quorum................................................................................ 4
Section 4.7. Majority.............................................................................. 4
Section 4.8. Action by Consent..................................................................... 4
</TABLE>
-2-
<PAGE> 3
<TABLE>
<CAPTION>
ARTICLES SECTION PAGE
- -------- ------- ----
<S> <C> <C>
ARTICLE 5 COMMITTEES 5
Section 5.1. Election.............................................................................. 5
Section 5.2. Minutes............................................................................... 5
ARTICLE 6 NOTICES 5
Section 6.1. Required Notices...................................................................... 5
Section 6.2. Waiver of Notice...................................................................... 5
ARTICLE 7 OFFICERS 5
Section 7.1. Officers; Election; Term.............................................................. 5
Section 7.2. Additional Officers and Agents........................................................ 6
Section 7.3. Salaries; Other Duties and Authority.................................................. 6
Section 7.4. Removal; Vacancies.................................................................... 6
Section 7.5. President............................................................................. 6
Section 7.6. Vice President........................................................................ 6
Section 7.7. Secretary............................................................................. 7
Section 7.8. Treasurer............................................................................. 7
ARTICLE 8 CERTIFICATES FOR SHARES 7
Section 8.1. Form of Certificates.................................................................. 7
Section 8.2. Facsimile Signatures.................................................................. 7
Section 8.3. Lost Certificates..................................................................... 8
Section 8.4. Transfer of Shares.................................................................... 8
Section 8.5. Closing of Transfer Books............................................................. 8
Section 8.6. Registered Shareholders............................................................... 8
Section 8.7. List of Shareholders.................................................................. 8
ARTICLE 9 INDEMNIFICATION 9
Section 9.1. Indemnification....................................................................... 9
Section 9.2. Insurance............................................................................. 10
Section 9.3. Notice to Shareholders................................................................ 10
ARTICLE 10 GENERAL PROVISIONS 10
Section 10.1. Dividends............................................................................. 10
Section 10.2. Depositories.......................................................................... 10
Section 10.3. Contracts and Deeds................................................................... 10
Section 10.4. Seal.................................................................................. 10
Section 10.5. Books and Records..................................................................... 10
Section 10.6. By-Law Amendments..................................................................... 11
</TABLE>
-3-
<PAGE> 4
BY-LAWS
OF
PSC SERVICES OF FLORIDA, INC.
(THE "CORPORATION")
ARTICLE 1
OFFICES
Section 1.1. Registered Office. The Corporation shall have a registered
agent and a registered office in Delaware as initially set forth in the
Corporation's Certificate of Incorporation and as the board of directors may
from time to time determine.
Section 1.2. Other Offices. The Corporation may also have offices at
such other places both within and without the State of Delaware as the board of
directors may from time to time determine or the business of the Corporation may
make appropriate.
ARTICLE 2
MEETINGS OF SHAREHOLDERS
Section 2.1. Location of Meetings. All meetings of shareholders shall
be held at such place within or without the State of Delaware as may be from
time to time fixed by the board of directors or as shall be stated in the notice
of the meeting or in a duly executed waiver of notice thereof or at the
Corporation's registered office if not so fixed or stated.
Section 2.2. Annual Meetings. A meeting of shareholders of the
Corporation shall be held annually. The annual meeting shall be held on such
date as the board of directors shall determine from time to time and as shall be
specified in the notice of the meeting.
Section 2.3. Special Meeting. Unless otherwise prescribed by law or by
the Certificate of Incorporation, special meetings of shareholders may be called
for any purpose or purposes by the (i) Chairman of the Board, (ii) the board of
directors, (iii) the President or the Secretary upon the request of the holders
of twenty-five percent (25 %) of the outstanding voting stock of the
Corporation, (iv) by such other officers or persons as may at the time be
provided in the Certificate of Incorporation, or (v) in the event there are no
officers or directors, then by any shareholder.
Section 2.4. Notice of Meetings. Written notice of a meeting stating
the place, day and hour of the meeting and, in the case of a special meeting,
the purpose or purposes for which the meeting is called, shall be delivered not
less than 10 nor more than 60 days before the date of the meeting in
<PAGE> 5
accordance with Article 6.
Section 2.5. Business of Meetings. At an annual meeting of
shareholders, any matter relating to the affairs of the Corporation, whether or
not stated in the notice of meeting, may be brought up for action (unless
otherwise provided by law). Unless the holders of a majority of the issued and
outstanding shares of voting capital stock of the Corporation are present in
person and specifically agree thereto in writing, no matter that was not stated
in the notice of special meeting of shareholders shall be brought up for action
at such a special meeting.
Section 2.6. Quorum. The holders of a majority of the shares of stock
issued and outstanding and entitled to vote, present in person or by proxy,
shall constitute a quorum at all meetings of shareholders for the transaction of
business except as otherwise provided by law or by the Certificate of
Incorporation. If a quorum shall not be present, the shareholders present, in
person or by proxy, shall have power to adjourn the meeting from time to time,
without notice other than announcement at the meeting, until a quorum shall be
present. At such reconvened meeting, any business may be transacted which might
have been transacted at the adjourned meeting.
Section 2.7. Majority. Unless otherwise required by law, if a quorum is
present, the affirmative vote of a majority of the shares of stock represented
at the meeting shall be the act of the shareholders, except that a unanimous
vote of the issued and outstanding shares of voting capital stock shall be
required to approve matters at a special meeting of shareholders with respect to
which matters no notice had been given in the notice of such special meeting.
Section 2.8. Voting. Each outstanding share of stock having voting
power shall be entitled to one vote on each matter submitted to a vote at a
meeting of shareholders. A shareholder may vote either in person or by a proxy
executed in writing by the shareholder or by a duly authorized attorney-in-fact.
If the validity of any proxy is questioned it must be submitted to the secretary
of the Shareholders' meeting for examination or to a proxy officer or committee
appointed by the person presiding at the meeting. The secretary of the meeting,
or if appointed, the proxy officer or committee, shall determine the validity or
invalidity of any proxy submitted. Reference by the secretary in the minutes of
the meeting to the irregularity of a proxy shall be received as prima facie
evidence of the facts stated for the purpose of establishing the presence of a
quorum at such meeting and for other purposes. In all elections for directors,
every shareholder entitled to vote shall have the right to vote, in person or by
proxy, the number of shares of stock owned by such shareholder for as many
persons as there are directors to be elected and for whose election such
shareholder has the right to vote, but shareholders may not cumulate their
votes.
Section 2.9. Action by Consent. Any action required or permitted to be
taken at a meeting of shareholders may be taken without a meeting without prior
notice and without a vote if a consent in writing, setting forth the action so
taken, is signed by persons who would be entitled to vote at a meeting those
shares having voting power to cast not less than the minimum number of votes
that would be necessary to authorize or take such action at a meeting at which
all shareholders entitled to vote were present and voted, and any further
requirements of law pertaining to such consents have been complied with. Prompt
notice of the taking of such corporate action with a meeting by less than
unanimous written consent shall be given to those stockholders who have not
consented in writing.
-5-
<PAGE> 6
ARTICLE 3
DIRECTORS
Section 3.1. Number; Election. The board of directors shall fix from
time to time by resolution the precise number of directors. Directors must be
over age eighteen, but need not be residents of the State of Delaware or
shareholders of the Corporation. The directors, other than the first board of
directors, shall be elected at the annual meeting of shareholders, and each
director elected shall serve until the next succeeding annual meeting and until
such person's successor shall have been elected and qualified or until the
earlier resignation, removal from office, or death of such person. The first
board of directors shall hold office until the first annual meeting of
shareholders.
Section 3.2. Vacancies. Any vacancy occurring in the board of directors
may be filled by the affirmative vote of a majority of the remaining directors
even though the remaining directors may constitute less than a quorum of the
board of directors. If there shall be only one director and such director shall
resign, he may elect a new director, who shall take office immediately upon the
effectiveness of such resignation. A director elected to fill a vacancy shall be
elected for the unexpired portion of the term of his predecessor in office. Any
directorship to be filled by reason of an increase in the number of directors
may be filled by the affirmative vote of a majority of the remaining directors
present at a meeting even though less than a quorum of the board of directors is
present. A director elected to fill a newly created directorship shall serve
until the next election of directors by the shareholders and the election and
qualification of his successor.
Section 3.3. Powers. The business and affairs of the Corporation shall
be managed by its board of directors which may exercise all such powers of the
Corporation and do all such lawful acts and things as are not by law or by the
Certificate of Incorporation or these by-laws directed or required to be
exercised or done by the shareholders.
Section 3.4. Compensation. Directors, by the affirmative vote of a
majority of the directors then in office, and irrespective of any personal
interest of any of its members, shall have authority to establish reasonable
compensation of directors for services to the Corporation as directors,
officers, or otherwise, for attendance at regular or special meetings of the
board of directors and of any special or standing committees thereof as may be
from time to time determined by resolution of the board of directors or by the
Shareholders. A Director may also serve the Corporation in a capacity other than
that of Director and receive compensation, as determined by the board of
directors, for services rendered in that other capacity.
Section 3.5. Removal. Any Director may be removed from office, with or
without cause, upon the majority vote of the Shareholders, at a meeting with
respect to which notice of such purpose is given, and a removed Director's
successor may be elected at the same meeting to serve the unexpired term.
ARTICLE 4
MEETINGS OF THE BOARD OF DIRECTORS
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<PAGE> 7
Section 4.1. Location of Meetings. Meetings of the board of directors,
regular or special, may be held either within or without the State of Delaware.
Directors may attend and participate in meetings either in person or by means of
conference telephones or similar communications equipment by means of which all
persons participating in the meeting can hear each other, and participation in a
meeting by means of such communications equipment shall constitute presence in
person at any meeting.
Section 4.2. First Meeting of New Board. The first meeting of each
newly elected board of directors shall be held immediately following the annual
meeting of shareholders at the place where such annual meeting is held. Such
meeting shall be designated as the annual meeting of the board of directors, and
no notice of such meeting shall be necessary to the newly elected directors in
order legally to constitute the meeting, provided a quorum shall be present.
Alternatively, the new board of directors may convene at such place and time as
shall be fixed by the consent in writing of all its members.
Section 4.3. Regular Meetings. Regular meetings of the board of
directors may be held with such frequency and at such time and at such place as
shall from time to time be determined by the board. If the board has so fixed
the frequency, time and place of regular meetings, no notice thereof shall be
necessary.
Section 4.4. Special Meetings. Special meetings of the board of
directors may be called by the president or by any director on two days' notice
to each director in accordance with Article 6.
Section 4.5. Notice of Meetings. Notice of a meeting need not be given
to any director who signs a waiver of notice either before or after the meeting
or who attends the meeting without protesting, prior thereto or at its
commencement, the lack of notice thereof. Neither the business to be transacted
at, nor the purpose of, any regular or special meeting of the board of directors
need be specified in the notice or waiver of notice of such meeting.
Section 4.6. Quorum. A majority of the directors shall constitute a
quorum for the transaction of business. If a quorum shall not be present at any
meeting of directors, the directors present may adjourn the meeting from time to
time until a quorum shall be present, without notice of the time and place that
the meeting will be reconvened other than announcement at the adjourned meeting.
Section 4.7. Majority. The act of a majority of the directors present
at the meeting at which a quorum is present shall be the act of the board of
directors, unless the act of a greater number is required by law or by the
Certificate of Incorporation.
Section 4.8. Action by Consent. Any action required or permitted to be
taken at a meeting of directors or of a committee thereof may be taken without a
meeting if a consent in writing, setting forth the action so taken, is signed by
all directors or all members of the committee, as the case may be, entitled to
vote with respect to the subject matter thereof. Such consent shall be filed
with the minutes of the proceedings of the board or the committee.
ARTICLE 5
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<PAGE> 8
COMMITTEES
Section 5.1. Election. In the event that the number of directors of the
corporation shall be in excess of one, the board of directors, by resolution
adopted by a majority of the full board, may designate from among its members an
executive committee, and one or more other committees, each consisting of one or
more directors and each of which, to the extent provided in the resolution
establishing such committee, shall have and may exercise all authority of the
board of directors in the management of the Corporation, except as otherwise
required by law. Vacancies in the membership of the committee shall be filled by
a majority vote of the M board of directors.
Section 5.2. Minutes. Each such committee shall keep regular minutes of
its proceedings and report the same to the board when required.
ARTICLE 6
NOTICES
Section 6.1. Required Notices. Whenever under the provisions of
applicable law, the Certificate of Incorporation or these by-laws any notice is
required to be given to any director or shareholder, such notice shall be given
in writing and delivered either personally or by first class mail or telegrams
addressed to such director or shareholder at his address as it appears on the
records of the Corporation. If mailed, such notice shall be deemed to be
delivered two business days after it was deposited in the United States mail
with first class postage prepaid. Notices given by any other means shall be
deemed delivered when received by the addressee.
Section 6.2. Waiver of Notice. Whenever under the provisions of
applicable law, the Certificate of Incorporation or these by-laws, any notice is
required to be given to any director or shareholder, a written waiver thereof
signed by the person or persons entitled to such notice, either before or after
the time stated therein, shall be deemed the equivalent to the giving of such
notice.
ARTICLE 7
OFFICERS
Section 7.1. Officers; Election; Term. The officers of the Corporation
shall be chosen by the board of directors and shall consist of a president, a
treasurer and a secretary and such other officers or assistant officers,
including vice-presidents, as may be elected by the board of directors. Any
person may hold more than one office. Officers shall be elected at the first
meeting of the board of directors following the annual meeting of shareholders
and shall hold office until their respective successors have been elected and
shall have qualified, and if the board of directors shall fail in any
-8-
<PAGE> 9
year or years to meet and elect officers, the officers last elected shall
continue to hold office. No officer need be a member of the board of directors.
Section 7.2. Additional Officers and Agents. The board of directors may
appoint such other officers, including a chairman of the board, one or more vice
presidents, assistant secretaries, assistant treasurers and agents as it shall
deem necessary. Such officers and agents shall hold their respective offices for
such terms and shall exercise such powers and perform such duties as shall be
determined from time to time by the board of directors.
Section 7.3. Salaries; Other Duties and Authority. The salaries of all
officers of the Corporation shall be fixed by the board of directors. No officer
shall be prevented from receiving such salary by reason of the fact that such
officer is also a director of the Corporation. In addition to the duties and
authority conferred upon each officer by these by-laws, each officer shall have
such other duties and authority as may be conferred upon such officer by the
board of directors or delegated to such officer by the President.
Section 7.4. Removal; Vacancies. Any officer or agent elected or
appointed by the board of directors may be removed by the board at any time with
or without cause by the affirmative vote of a majority of the board of
directors. Officers and agents otherwise elected or appointed may be removed in
accordance with Delaware law. Any vacancy occurring in any office of the
Corporation may be filled by the board of directors.
Section 7.5. President. The president shall be the chief executive
officer of the Corporation, shall preside at all meetings of shareholders and
the board of directors, shall have general and active management of the business
of the Corporation and shall see that all orders and resolutions of the board of
directors are carried into effect. The president shall have the authority and
power to execute on behalf of the Corporation bonds, mortgages, notes,
contracts, leases and other documents and instruments (whether or not requiring
the seal of the Corporation) except where such documents or instruments are
required by law to be otherwise signed and executed and except where the signing
and execution thereof shall be expressly delegated by the board of directors to
some other officer or agent of the Corporation. If there shall be no treasurer,
the president shall have custody of the corporate funds and securities and shall
keep full and accurate accounts of receipts and disbursements in books belonging
to the Corporation and shall deposit all moneys and other valuable effects in
the name and to the credit of the Corporation in such depositories as may be
designated by the board of directors. The president shall disburse the funds of
the Corporation as may be ordered by the board of directors, taking proper
vouchers for such disbursements, and shall render to the board of directors, at
its regular meetings, or when the board of directors so requires, an account of
all transactions as treasurer and of the financial condition of the Corporation.
Section 7.6. Vice President. Each vice president shall perform such
duties and have such powers as the board of directors may from time to time
prescribe. At the request of the president, or in case of the President's
absence or inability to act upon the request of the board, a vice president
shall perform the duties of the president and when so acting, shall have all the
powers of, and be subject to all the restrictions upon, the president.
Section 7.7. Secretary. The secretary shall attend all meetings of
shareholders and the board of
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<PAGE> 10
directors and shall record the proceedings of such meetings in books to be kept
for that purpose and shall perform like duties for any committee of directors
when required. The secretary shall give, or cause to be given, notice of all
meetings of shareholders and shall perform such duties as may be prescribed by
the board of directors or the president, under whose supervision he or she,
shall be. The secretary shall have custody of the corporate seal of the
Corporation, and shall have authority to affix it to any instrument requiring
it, and when so affixed it may be attested by his or her signature.
Section 7.8. Treasurer. The treasurer shall have the custody of the
corporate funds and securities and shall keep full and accurate accounts of
receipts and disbursements in books belonging to the Corporation and shall
deposit all moneys and other valuable effects in the name and to the credit of
the Corporation in such depositories as may be designated by the board of
directors. The treasurer shall disburse the funds of the Corporation as may be
ordered by the board of directors, taking proper vouchers for such
disbursements, and shall render to the president and the board of directors, at
its regular meetings, or when the board of directors so requires, an account of
all transactions as treasurer and of the financial condition of the Corporation.
If required by the board of directors, the treasurer shall give the Corporation
a bond in such sum with surety or sureties as shall be satisfactory to the board
of directors for the faithful performance of the duties of the office and for
the restoration to the Corporation, in case of death, resignation, retirement or
removal from office, of all books, papers, vouchers, money and other property of
whatever kind in his or her possession or under his or her control belonging to
the Corporation.
ARTICLE 8
CERTIFICATES FOR SHARES
Section 8.1. Form of Certificates. The shares of stock of the
Corporation shall be represented by certificates which shall be in such form as
the board of directors may from time to time adopt. Such certificates shall be
numbered, shall be entered in the books of the Corporation as they are issued,
shall be signed by the president or a vice president and by the secretary or an
assistant secretary and shall be sealed with the seal of the Corporation or a
facsimile thereof.
Section 8.2. Facsimile Signatures. The signatures of the Corporation
upon a Certificate may be facsimiles if the certificate is countersigned by a
transfer agent, or registered by a Registrar, other than the Corporation itself
or an employee of the Corporation. If any officer who has signed a certificate
or whose facsimile signature has been placed upon such certificate shall have
ceased to be an officer before such certificate is issued, such certificate may
nevertheless be issued by the Corporation with the same effect as if he or she
were such officer at the date of its issue.
Section 8.3. Lost Certificates. The board of directors may direct that
a new certificate be issued in place of any certificate theretofore issued by
the Corporation which is alleged to have been lost or destroyed. When
authorizing the issuance of a new certificate, the board of directors, in its
discretion and as a condition precedent to the issuance thereof, may prescribe
such terms and conditions as it deems expedient, and may require such
indemnities as it deems adequate, to protect the Corporation from any claim that
may be made against it with respect to any such
-10-
<PAGE> 11
certificate alleged to have been lost or destroyed.
Section 8.4. Transfer of Shares. Upon surrender to the Corporation or
the transfer agent of the Corporation of a certificate representing shares duly
endorsed or accompanied by proper evidence of succession, assignment or
authority to transfer, a new certificate shall be issued to the person entitled
thereto, the old certificate shall be conspicuously marked on its face
"cancelled" and filed with the permanent stock records of the Corporation and
the transaction shall be recorded upon the books of the Corporation.
Section 8.5. Closing of Transfer Books. In order to determine the
Corporation's shareholders (i) entitled to notice of or to vote at any meeting
of shareholders or any adjournment thereof, (ii) entitled to receive payment of
any dividend or (iii) for any other proper purpose, the board of directors may
provide that the stock transfer books shall be closed for a stated period not to
exceed 50 days. If the stock transfer books shall be closed for the purpose of
determining shareholders entitled to notice of or to vote at a meeting of
shareholders, such books shall be closed for at least 10 days immediately
preceding such meeting. In lieu of closing the stock transfer books, the board
of directors may fix in advance a date as the record date for any such
determination of shareholders, such date to be not more than 50 days and, in
case of a meeting of shareholders, not less than 10 days prior to the date on
which the particular action, requiring such determination of shareholders, is to
be taken. If the stock transfer books are not closed and no record date is fixed
for the determination of shareholders entitled to notice of or to vote at a
meeting of shareholders, or shareholders entitled to receive payment of a
dividend, the date on which notice of the meeting is mailed or the date on which
the resolution of the board of directors declaring such dividend is adopted, as
the case may be, shall be the record date for such determination of
shareholders. When a determination of shareholders entitled to vote at any
meeting of shareholders has been made as provided in this section, such
determination shall apply to any adjournment thereof, unless the board of
directors fixes a new record date for the adjourned meeting.
Section 8.6. Registered Shareholders. The Corporation shall be entitled
to recognize the person registered on its books as the owner of shares for the
purposes of determining who shall (i) have the right to receive dividends
declared with respect to such shares, or vote such shares, and (ii) be held
liable for calls and assessments. Except as otherwise provided by law, the
Corporation shall not be bound to recognize any equitable or other claim to or
interest in such shares on the part of any other person, whether or not it shall
have express or other notice thereof.
Section 8.7. List of Shareholders. The officer or agent having charge
of the stock books and records of the Corporation shall make a complete list of
the shareholders entitled to vote at a meeting of shareholders or any
adjournment thereof. Such list shall be arranged in alphabetical order and shall
contain the address of each shareholder and the number of shares, and class and
series, if any, of shares held by each such shareholder. Such list shall be
produced and kept open at the time and place of the meeting and shall be subject
to inspection by any shareholder immediately prior to and during the meeting.
Such list shall be prima facie evidence of who is a shareholder of record.
ARTICLE 9
INDEMNIFICATION
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Section 9.1. Indemnification. Each person who is or was a director or
officer of the Corporation, and each person who is or was a director or officer
of the Corporation who at the request of the Corporation is serving or has
served as an officer, director, partner, joint venturer or trustee of another
corporation, partnership, joint venture, trust or other enterprise shall be
indemnified by the Corporation against those expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement which are allowed to be
paid or reimbursed by the Corporation under the laws of the State of Delaware
and which are actually and reasonably incurred in connection with any action,
suit, or proceeding, pending or threatened, whether civil, criminal,
administrative or investigative, in which such person may be involved by reason
of his being or having been a director or officer of this Corporation or of such
other enterprises. Such indemnification shall be made only in accordance with
the laws of the State of Delaware and subject to the conditions prescribed
therein.
In any instance where the laws of the State of Delaware permit
indemnification to be provided to persons who are or have been an officer or
director of the Corporation or who are or have been an officer, director,
partner, joint venturer or trustee of any such other enterprise only on a
determination that certain specified standards of conduct have been met, upon
application for indemnification by any such person the Corporation shall
promptly cause such determination to be made (i) by the board of directors by
majority vote of a quorum consisting of directors not at the time parties to the
proceeding; (ii) if a quorum cannot be obtained, by majority vote of a committee
duly designated by the board of directors (in which designation directors who
are parties may participate), consisting solely of two or more directors not at
the time parties to the proceeding; (iii) by special legal counsel selected by
the board of directors or its committee in the manner prescribed in (i) or (ii),
or if a quorum of the board of directors, cannot be obtained under (i), and a
committee cannot be designated under (ii), selected by majority vote of the full
board of directors (in which selection directors who am parties may
participate); or (iv) by the shareholders, but shares owned by or voted under
the control of directors who are at the time parties to the proceeding may not
be voted on the determination.
As a condition to any such right of indemnification, the Corporation
may require that it be permitted to participate in the defense of any such
action or proceeding through legal counsel designated by the Corporation and at
the expense of the Corporation.
Section 9.2. Insurance. The Corporation may purchase and maintain
insurance on behalf of any such persons whether or not the Corporation would
have the power to indemnify such officers and directors against any liability
under the laws of the State of Delaware.
Section 9.3. Notice to Shareholders. If any expenses or other amounts
are paid by way of indemnification, other than by court order, action by
shareholders or by an insurance carrier, the Corporation shall provide notice of
such payment to the shareholders in accordance with the provisions of the laws
of the State of Delaware.
ARTICLE 10
GENERAL PROVISIONS
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Section 10.1. Dividends. Subject to applicable laws and the provisions
of the Certificate of Incorporation relating thereto, if any, dividends may be
(i) declared by the board of directors at any regular or special meeting, and
(ii) paid in cash, in property or in shares of the Corporation's capital stock.
Before declaring any dividend, the board may set aside out of any funds of the
Corporation available for dividends such sums as the directors may from time to
time, in their absolute discretion, think proper as a reserve fund to meet
contingencies or for equalizing dividends or for repairing or maintaining any
property of the Corporation or for such other purposes as the directors shall
think conducive to the interest of the Corporation, and the directors may modify
or abolish any such reserve in the manner in which it was created.
Section 10.2. Depositories. All funds of the Corporation shall be
deposited in the name of the Corporation in such bank, banks, or other financial
institutions as the board of directors may from time to time designate and shall
be drawn out on checks, drafts or other orders signed on behalf of the
Corporation by such person or persons as the board of directors may from time to
time designate.
Section 10.3. Contracts and Deeds. All contracts, deeds and other
instruments shall be signed on behalf of the Corporation by the President or by
such other officer, officers, agent or agents as the board of directors may from
time to time by resolution provide.
Section 10.4. Seal. The Corporation shall have a corporate seal which
shall have inscribed thereon the name of the corporation, the year of its
organization and the words "Corporate Seal Delaware." The seal may be used by
the Secretary of the Corporation by causing it or a facsimile thereof to be
impressed or affixed or in any manner reproduced. The board of directors may
from time to time authorize any other officer to affix the seal of the
Corporation and to attest to such affixation by his signature.
Section 10.5. Books and Records. The Corporation shall keep correct and
complete books and records of account and shall keep minutes of the proceedings
of its shareholder, board of directors, and committees of directors and shall
keep at its registered office or principal place of business, or at the office
of its transfer agent or registrar, a record of its shareholders, giving the
names and addresses of all shareholders, and the number, class and series, if
any, of the shares held by each.
Section 10.6. By-Law Amendments. These by-laws may be altered, amended,
or repealed or new by-laws may be adopted by the board of directors or the
shareholders. Any by-laws adopted by the board of directors may be altered,
amended or repealed by the board of directors or the shareholders, but new
by-laws adopted by the shareholders may be altered, amended or repealed only by
the shareholders.
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Exhibit 3.15
Certificate of Incorporation
of
BroMar Services, Inc.
1. Name. The name of the corporation is BroMar Services, Inc.
2. Registered Office. The address of its registered office in the State of
Delaware is 1209 Orange Street, in the City of Wilmington, County of New Castle.
The name of its registered agent at such address is The Corporation Trust
Company.
3. Business Purpose. The nature of the business or purposes to be conducted or
promoted is:
To engage in any lawful act or activity for which corporations may be
organized under the General Corporation Law of Delaware.
4. Authorized Shares. The total number of shares of stock which the
corporation shall have authority to issue is Two Thousand (2,000) shares of
Common Stock. All of the shares of such stock shall be without par value.
5. Incorporator. The name and mailing address of the incorporator is Henry J.
Underwood, Jr., 200 S. Michigan Avenue, Suite 1100, Chicago, Illinois 60604.
6. Corporate Life. The corporation is to have perpetual existence.
7. Right to Indemnification. Each person who at any time is or shall have been
a director or officer of the corporation or is or shall have been serving at the
request of the corporation as a director or officer of another corporation,
partnership, joint venture, trust or other enterprise, shall, without further
action by this corporation, be indemnified by this corporation in accordance
with and to the full extent permitted by the General Corporation Law of the
State of Delaware as in effect as of the date hereof or as amended from time to
time. If authorized by the board of directors, and upon such terms and
conditions as it deems appropriate,
<PAGE> 2
the corporation may extend such right of indemnification to a person who at any
time is or shall have been an employee or agent of the corporation or shall have
been serving at the request of the corporation as an employee or agent of
another corporation, partnership, joint venture, trust or other enterprise. The
foregoing right of indemnification shall not be deemed exclusive of any other
rights to which a person seeking indemnification may be entitled under any
by-law, agreement, vote of shareholders or disinterested directors or otherwise.
If authorized by the board of directors, the corporation may elect to advance
expenses (including attorneys' fees) actually and reasonably incurred by any
party in connection with a claim for indemnification hereunder. The board of
directors may attach such terms and conditions to the advancement of expenses as
it deems appropriate, in addition to those required by law. If authorized by the
board of directors, the corporation may purchase and maintain insurance on
behalf of any such person to the full extent permitted by the General
Corporation Law of the State of Delaware as in effect as of the date hereof or
as amended from time to time. If the corporation pays indemnity or makes an
advance of expenses to a director, officer, employee or agent, the corporation
shall report the indemnification or advance in writing to the shareholders with
or before the notice of the next shareholders meeting.
THE UNDERSIGNED, being the incorporator hereinbefore named, for the
purpose of forming a corporation pursuant to the General Corporation Law of the
State of Delaware, does make this certificate, hereby declaring and certifying
that this is his act and deed and the facts herein stated are true, and
accordingly has hereunto set his hand this 19th day of January, 1994.
/s/ Henry J. Underwood, Jr.
---------------------------
Henry J. Underwood, Jr.
Incorporator
<PAGE> 1
Exhibit 3.16
BY-LAWS OF
BROMAR SERVICES, INC.
ARTICLE I
OFFICES
1. Registered Office. The registered office shall be at the address set
forth in the Certificate of Incorporation.
2. Other Offices. The corporation may also have offices at such other
places both within and without the State of Delaware as the Board of Directors
from time to time may determine or the business of the corporation may require.
ARTICLE II STOCKHOLDERS
Section 2.1. Annual Meetings. An annual meeting of stockholders shall
be held for the election of Directors on the third Wednesday in October in each
year, if not a legal holiday, and if a legal holiday, then on the next secular
day following, at 2:30 p.m., or at such date, time and place, either within or
without the State of Delaware, as may be designated by resolution of the Board
of Directors from time to time. If no address is designated, the meeting shall
be held at the chief executive office of the corporation. Any other proper
business may be transacted at the annual meeting.
Section 2.2. Special Meetings. Special meetings of stockholders for any
purpose or purposes may be called at any time by the Board of Directors, or by a
committee of the Board of Directors which has been duly designated by the Board
of Directors and whose powers and authority, as expressly provided in a
resolution of the Board of Directors, include the power to call such meetings,
or the President, and shall be called by the President or Secretary at the
request in writing of a majority of the Board of Directors, or at the request in
writing of stockholders owning a majority in amount of the entire capital stock
of the corporation issued and outstanding and entitled to vote. Such request
shall state the purpose or purposes of the proposed meeting. Such special
meetings may not be called by any other person or persons.
Section 2.3. Notice of Meetings. Whenever stockholders are required or
permitted to take any action at a meeting, a written notice of the meeting shall
be given which shall state the place, date and hour of the meeting, and, in the
case of a special meeting, the purpose or purposes for which the meeting is
called. Unless otherwise provided by law, the certificate of incorporation or
these by-laws, the written notice of any meeting shall be given not less than
ten nor more than sixty days before the date of the meeting to each stockholder
entitled to vote at such meeting. If mailed, such notice shall be deemed to be
given when deposited in the mail,
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postage prepaid, directed to the stockholder at his address as it appears on the
records of the corporation.
Section 2.4. Adjournments. Any meeting of stockholders, annual or
special, may adjourn from time to time to reconvene at the same or some other
place, and notice need not be given of any such adjourned meeting if the time
and place thereof are announced at the meeting at which the adjournment is
taken. At the adjourned meeting the corporation may transact any business which
might have been transacted at the original meeting. If the adjournment is for
more than thirty days, or if after the adjournment a new record date is fixed
for the adjourned meeting, a notice of the adjourned meeting shall be given to
each stockholder of record entitled to vote at the meeting.
Section 2.5. Quorum. Except as otherwise provided by law, the
certificate of incorporation or these by-laws, at each Meeting of stockholders
the presence in person or by proxy of the holders of shares of stock having a
majority of the votes which could be cast by the holders of all outstanding
shares of stock entitled to vote at the meeting shall be necessary and
sufficient to constitute a quorum. In the absence of a quorum, the stockholders
so present may, by majority vote, adjourn the meeting from time to time in the
manner provided in Section 2.4 of these by-laws until a quorum shall attend.
Shares of its own stock belonging to the corporation or to another corporation,
if a majority of the shares entitled to vote in the election of directors of
such other corporation is held, directly or indirectly, by the corporation,
shall neither be entitled to vote nor be counted for quorum purposes; provided,
however, that the foregoing shall not limit the right of the corporation to vote
stock, including but not limited to its own stock, held by it in a fiduciary
capacity.
Section 2.6. Organization. Meetings of stockholders shall be presided
over, the Chairman of the Board, if any, or in his absence by the President, or
in his absence by a Vice President, or in the absence of the foregoing persons
by a chairman designated by the Board of Directors, or in the absence of such
designation by a chairman chosen at the meeting. The Secretary shall act as
secretary of the meeting, but in his absence the chairman of the meeting may
appoint any person to act as secretary of the meeting.
Section 2.7. Voting; Proxies. Except as otherwise provided by the
certificate of incorporation, each stockholder entitled to vote at any meeting
of stockholders shall be entitled to one vote for each share of stock held by
him which has voting power upon the matter in question. Each stockholder
entitled to vote at a meeting of stockholders may authorize another person or
persons to act for him by proxy, but no such proxy shall be voted or acted upon
after three years from its date, unless the proxy provides for a longer period.
A duly executed proxy shall be irrevocable if it states that it is irrevocable
and if, and only as long as, it is coupled with an interest sufficient in law to
support an irrevocable power. A stockholder may revoke any proxy which is not
irrevocable by attending the meeting and voting in person or by filing an
instrument in writing revoking the proxy or another duly executed proxy bearing
a later date with the Secretary of the corporation. At all meetings of
stockholders for the election of Directors, each stockholder having voting power
shall be entitled to exercise the right of cumulative voting as provided in the
certificate of incorporation be sufficient to elect. All elections and questions
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shall, unless otherwise provided by law, the certificate of incorporation or
these by-laws, be decided by the vote of the holders of shares of stock having a
majority of the votes which could be cast by the holders of all shares of stock
entitled to vote thereon which are present in person or represented by proxy at
the meeting.
Section 2.8. Fixing Date for Determination of Stockholders of Record.
In order that the corporation may determine the stockholders entitled to notice
of or to vote at any meeting of stockholders or any adjournment thereof, or to
express consent to corporate action in writing without a meeting, or entitled to
receive payment of any dividend or other distribution or allotment of any
rights, or entitled to exercise any rights in respect of any change, conversion
or exchange of stock or for the purpose of any other lawful action, the Board of
Directors may fix a record date, which record date shall not precede the date
upon which the resolution fixing the record date is adopted by the Board of
Directors and which record date: (1) in the case of determination of
stockholders entitled to vote at any meeting of stockholders or adjournment
thereof, shall, unless otherwise required by law, not be more than sixty nor
less than ten days before the date of such meeting: (2) in the case of
determination of stockholders entitled to express consent to corporate action in
writing without a meeting, shall not be more than ten days from the date upon
which the resolution fixing the record date is adopted by the Board of
Directors; and (3) in the case of any other action, shall not be more than sixty
days prior to such other action. If no record date is fixed: (1) the record date
for determining stockholders entitled to notice of or to vote at a meeting of
stockholders shall be at the close of business on the day immediately preceding
the day on which notice is given, or, if notice is waived, at the close of
business on the day immediately preceding the day on which the meeting is held,
(2) the record date for determining stockholders entitled to express consent to
corporate action in writing without a meeting when no prior action of the Board
of Directors is required by law, shall be the first date on which a signed
written consent setting forth the action taken or proposed to be taken is
delivered to the corporation in accordance with applicable law, or, if prior
action by the Board of Directors is required by law, shall be at the close of
business on the day on which the Board of Directors adopts the resolution taking
such prior action; and (3) the record date for determining stockholders for any
other purpose shall be at the close of business on the day on which the Board of
Directors adopts the resolution relating thereto. A determination of
stockholders of record entitled to notice of or to vote at a meeting of
stockholders shall apply to any adjournment of the meeting; provided, however,
that the Board of Directors may fix a new record date for the adjourned meeting.
Section 2.9. List of Stockholders Entitled to Vote. The Secretary shall
prepare and make, at least ten days before every meeting of stockholders, a
complete list of the stockholders entitled to vote at the meeting, arranged in
alphabetical order, and showing the address of each stockholder and the number
of shares registered in the name of each stockholder. Such list shall be open to
the examination of any stockholder, for any purpose germane to the meeting,
during ordinary business hours, for a period of at least ten days prior to the
meeting, either at a place within the city where the meeting is to be held,
which place shall be specified in the notice of the meeting, or, if not so
specified, at the place where the meeting is to be held. The list shall also be
produced and kept at the time and place of the meeting during the whole time
thereof and may be inspected by any stockholder who is present. Upon the willful
neglect or refusal of the directors
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to produce such a list at any meeting for the election of Directors, they shall
be ineligible for election to any office at such meeting. The stock ledger shall
be the only evidence as to who are the stockholders entitled to examine the
stock ledger, the list of stockholders or the books of the corporation, or to
vote in person or by proxy at any meeting of stockholders.
Section 2.10. Action By Consent of Stockholders. Unless otherwise
restricted by the certificate of incorporation, any action required or permitted
to be taken at any annual or special meeting of the stockholders may be taken
without a meeting, without prior notice and without a vote, if a consent in
writing, setting forth the action so taken, shall be signed by the holders of
outstanding stock having not less than the minimum number of votes that would be
necessary to authorize or take such action at a meeting at which all shares
entitled to vote thereon were present and voted. Prompt notice of the taking of
the corporate action without a meeting by less than unanimous written consent
shall be given to those stockholders who have not consented in writing.
ARTICLE XIX
BOARD OF DIRECTORS
Section 3.1. Number; Qualification. The Board of Directors which shall
constitute the whole Board shall be three. Except as otherwise provided in these
by-laws, Directors shall be elected at the annual meeting of the stockholders.
Directors need not be stockholders.
Section 3.2. Election; Resignation; Removal; Vacancies. At the first
annual meeting of stockholders and at each annual meeting thereafter, the
stockholders shall elect Directors each of whom shall hold office for a term of
one year or until his successor is elected and qualified. Any Director may
resign at any time upon written notice to the corporation. Any newly created
directorship or any vacancy occurring in the Board of Directors for any cause
may be filled by a majority of the remaining members of the Board of Directors,
even though such majority is less than a quorum, or by a majority of the votes
cast at a meeting of stockholders, and each director so elected shall hold
office until the expiration of the term of office of the Director whom he has
replaced or until his successor is elected and qualified.
Section 3.3. Regular Meetings. Regular meetings of the Board of
Directors may be held at such places within or without the State of Delaware and
at such times as the Board of Directors may from time to time determine, and if
so determined notices thereof need not be given. If no place of the meeting is
determined by the Board of Directors, the place of the meeting shall be at the
chief executive office of the corporation.
Section 3.4. Special Meetings. Special meetings of the Board of
Directors may be held at any time or place within or without the State of
Delaware whenever called by the President or by the President or Secretary when
requested in writing by two Directors. Notice of a special meeting of the Board
of Directors shall be given by the officer calling the meeting at least
forty-eight hours before the special meeting. If no place of the meeting is
determined by the Board of Directors, the place of the meeting shall be at the
chief executive office of the corporation.
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Section 3.5. Telephonic Meetings Permitted. Members of the Board of
Directors, or any committee designated by the Board of Directors, may
participate in a meeting thereof by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other, and participation in a meeting pursuant to this
by-law shall constitute presence in person at such meeting.
Section 3.6. Quorum; Vote Required for Action. At all meetings of the
Board of Directors a majority of the whole Board of Directors shall constitute a
quorum for the transaction of business. Except in cases in which the certificate
of incorporation or these by-laws otherwise provide, the vote of a majority of
the directors present at a meeting at which a quorum is present shall be the act
of the Board of Directors.
Section 3.7. Organization. Meetings of the Board of Directors shall be
presided over by the Chairman of the Board, or in his absence by the Vice
Chairman of the Board, if any, or in his absence by the President, or in their
absence by a chairman chosen at the meeting. The Secretary shall act as
secretary of the meeting, but in his absence the chairman of the meeting may
appoint any person to act as secretary of the meeting.
Section 3.8. Informal Action by Directors. Unless otherwise restricted
by the certificate of incorporation or these by-laws, any action required or
permitted to be taken at any meeting of the Board of Directors, or of any
committee thereof, may be taken without a meeting if all members of the Board of
Directors or such committee, as the case may be, consent thereto in writing, and
the writing or writings are filed with the minutes of proceedings of the Board
of Directors or such committee.
ARTICLE IV
COMMITTEES
Section 4.1 Committees. The Board of Directors may, by resolution
passed by a majority of the whole Board of Directors, designate one or more
committees, each committee to consist of one or more of the Directors of the
corporation. The Board of Directors may designate one or more Directors as
alternate members of any committee, who may replace any absent or disqualified
member at any meeting of the committee. In the absence or disqualification of a
member of the committee, the member or members thereof present at any meeting
and not disqualified from voting, whether or not he or they constitute a quorum,
may unanimously appoint another member of the Board of Directors to act at the
meeting in place of any such absent or disqualified member. Any such committee,
to the extent permitted by law and to the extent provided in the resolution of
the Board of Directors, shall have and may exercise all the powers and authority
of the Board of Directors in the management of the business and affairs of the
corporation, and may authorize the seal of the corporation to be affixed to all
papers which may require it. Each committee shall keep regular minutes of its
meetings and report the same to the Board of Directors when required.
Section 4.2. Committee Rules. Unless the Board of Directors otherwise
provides, each committee designated by the Board of Directors may make, alter
and repeal rules for the
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conduct of its business. In the absence of such rules each committee shall
conduct its business in the same manner as the Board of Directors conducts its
business pursuant to Article III of these by-laws.
ARTICLE V
OFFICERS
Section 5.1 Executive Officers; Election; Qualification; Term of
Office; Resignation; Removal; Vacancies. The Board of Directors may elect a
Chairman of the Board from among its members. The Board of Directors shall elect
a President, a Secretary and a Treasurer. The Board of Directors may also elect
one or more Vice Presidents, Assistant Secretaries and Assistant Treasurers.
Each such officer shall hold office until the first meeting of the Board of
Directors after the annual meeting of stockholders next succeeding his election,
and until his successor is elected and qualified or until his earlier
resignation or removal. Any officer may resign at any time upon written notice
to the corporation. The Board of Directors may remove any officer with or
without cause at any time, but such removal shall be without prejudice to the
contractual right of such officer, if any, with the corporation. Any number of
offices may be held by the same person. Any vacancy occurring in any office of
the corporation by death, resignation, removal or otherwise may be filled of the
unexpired portion of the term by the Board of Directors at any regular or
special meeting.
Section 5.2. The Chairman of the Board. If elected, the Chairman of the
Board shall preside at all meetings of the stockholders and directors, and shall
have such other powers and duties as may from time to time be prescribed by the
Board of Directors.
Section 5.3. The President. The President shall be the chief executive
officer of the corporation, shall have general and active management of the
business of the corporation and shall see that all orders and resolutions of the
board of directors are carried into effect. He shall execute bonds, mortgages
and other contracts requiring a seal, under the seal of the corporation, except
where required or permitted by law to be otherwise signed and executed and
except where the signing and execution thereof shall be expressly delegated by
the board of directors to some other officer or agent of the corporation. The
President shall perform the duties of the Chairman of the Board in the absence
of the Chairman of the Board, or in the event of his inability or refusal to
act.
Section 5.4. The Vice Presidents. The Vice President (or in the event
there be more than one Vice President, each of the Vice Presidents) shall assist
the President in the discharge of the President's duties as the President may
direct, and shall perform such other duties as from time to time may be assigned
to him or her by the President or the Board of Directors. Except in those
instances in which the authority to execute is expressly delegated to another
officer of agent of the corporation or a different mode of execution is
expressly prescribed by the Board of Directors, the President, or these by-laws,
the Vice President (or each of them if there are more than one) may execute for
the corporation certificates for its shares and any contracts, deeds, mortgages,
bonds or other instruments which the board of directors has authorized to be
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executed, and he or she may accomplish such execution either under or without
the seal of the corporation and either individually or with the Secretary, any
Assistant Secretary, or any other officer thereunto authorized by the Board of
Directors, according to the requirements of the form of the instrument. In the
absence of the President or in the event of his inability or refusal to act, the
Vice President (or in the event there be more than one Vice President, the Vice
Presidents in the order designated by the Board of Directors, or if not
designated by the Board then by the President, or in the absence of any
designation, then in the order of their election) shall perform the duties of
the President, and when so acting, shall have all the powers of and be subject
to all the restrictions upon the President.
Section 5.5. The Secretary. The Secretary shall attend all meetings of
the Board of Directors and all meetings of the stockholders and record all the
proceedings of the meetings of the corporation and of the Board of Directors in
a book to be kept for that purpose and shall perform like duties for the
standing committees when required. He shall give, or cause to be given, notice
of all meetings of the stockholders and special meetings of the Board of
Directors, and shall perform such other duties as may be prescribed by the Board
of Directors or President, under whose supervision he shall be. He shall have
custody of the corporate seal of the corporation and he shall have authority to
affix the same to any instrument requiring it and when so affixed, it may be
attested by his signature. The Board of Directors may give general authority to
any other officer to affix the seal of the corporation and to attest the
affixing by his signature.
Section 5.6. The Assistant Secretary. The Assistant Secretary, or if
there be more than one, each Assistant Secretary unless otherwise determined by
the Board of Directors shall, in the absence of the Secretary or in the event of
his inability or refusal to act, perform the duties and exercise the powers of
the Secretary and shall perform such other duties and have such other powers as
the Board of Directors or the President may from time to time prescribe.
Section 5.7. The Treasurer. The Treasurer shall have the custody of the
corporate funds and securities and shall keep full and accurate amounts of
receipts and disbursements in books belonging to the corporation and shall
deposit all moneys and other valuable effects in the name and to the credit of
the corporation in such depositories as he shall select. He shall disburse the
funds of the corporation as may be ordered by the Board of Directors, taking
proper vouchers for such disbursements, and shall render to the President and
the Board of Directors, at its regular meetings, or when the Board of Directors
or the President so requires, an account of all his transactions as Treasurer
and of the financial condition of the corporation. If required by the Board of
Directors, he shall give the corporation a bond in such sum, for such term, and
with such surety or sureties as shall be satisfactory to the Board of Directors
for the faithful performance of the duties of his office and for the restoration
to the corporation, in case of his death, resignation, retirement or removal
from office, of all books, papers, vouchers, money and other property of
whatever kind in his possession or under his control belonging to the
corporation.
Section 5.8. Assistant Treasurer. The Assistant Treasurer, or if there
shall be more than one, each Assistant Treasurer, unless otherwise determined by
the Board of Directors, shall,
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<PAGE> 8
in the absence of the Treasurer or in the event of his inability or refusal to
act, perform the duties and exercise the powers of the Treasurer and shall
perform such other duties and have such other powers as the Board of Directors
or the President may from time to time prescribe.
ARTICLE VI
STOCK
Section 6.1. Certificates. Every holder of stock shall be entitled to
have a certificate signed by or in the name of the corporation by the Chairman
or Vice Chairman of the Board of Directors, if any, or the President or a Vice
President, and by the Treasurer or an Assistant Treasurer, or the Secretary or
an Assistant Secretary, of the corporation, certifying the number of shares
owned by him in the corporation. Any of or all the signatures on the certificate
may be a facsimile. In case any officer, transfer agent, or registrar who has
signed or whole facsimile signature has been placed upon a certificate shall
have ceased to be such officer, transfer agent, or registrar before such
certificate is issued, it may be issued by the corporation with the same effect
as if he were such officer, transfer agent, or registrar at the date of issue.
Section 6.2. Lost, Stolen or Destroyed Stock Certificates; Issuance of
New Certificates. The corporation may issue a new certificate of stock in the
place of any certificate theretofore issued by it, alleged to have been lost,
stolen or destroyed, and the corporation may require the owner of the lost,
stolen or destroyed certificate, or his legal representative, to give the
corporation a bond sufficient to indemnify it against any claims that may be
made against it on account of the alleged loss, theft or destruction of any such
certificate or the issuance of such new certificate.
ARTICLE VII
INDEMNIFICATION
Section 7.1. Right to Indemnification. Each person who at any time is
or shall have been a director or officer of the corporation or is or shall have
been serving at the request of the corporation as a director or officer of
another corporation, partnership, joint venture, trust or other enterprise,
shall, without further action by this corporation, be indemnified by this
corporation in accordance with and to the full extent permitted by the General
Corporation Law of the State of Delaware as in effect at the time of adoption of
this by-law, as amended from time to time. If authorized by the board of
directors, and upon such terms and conditions as it deems appropriate, the
corporation may extend such right of indemnification to a person who at any time
is or shall have been an employee or agent of the corporation or shall have been
serving at the request of the corporation as an employee or agent of another
corporation, partnership, joint venture, trust or other enterprise. The
foregoing right of indemnification shall not be deemed exclusive of any other
rights to which a person seeking indemnification may be entitled under any
by-law, agreement, vote of shareholders or disinterested directors or otherwise.
If authorized by the board of directors, the corporation may elect to advance
expenses (including attorneys' fees) actually and reasonably incurred by any
party in connection with a claim for
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<PAGE> 9
indemnification hereunder. The board of directors may attach such terms and
conditions to the advancement of expenses as it deems appropriate, in addition
to those required by law. If authorized by the board of directors, the
corporation may purchase and maintain insurance on behalf of any such person to
the full extent permitted by the General Corporation Law of the State of
Delaware as in effect at the time of the adoption of this bylaw or as amended
from time to time. If the corporation pays indemnity or makes an advance of
expenses to a director, officer, employee or agent, the corporation shall report
the indemnification or advance in writing to the shareholders with or before the
notice of the next shareholders meeting.
ARTICLE VIII
MISCELLANEOUS
Section 8.1. Fiscal Year. The fiscal year of the corporation be
determined by resolution of the Board of Directors.
Section 8.2. Seal. The corporate seal shall have the name of the
corporation inscribed thereon and shall be in such form as may be approved from
time to time by the Board of Directors.
Section 8.3. Waiver of Notice of Meetings of Stockholders, Directors
and Committees. Any written waiver of notice, signed by the person entitled to
notice, whether before or after the time stated therein, shall be deemed
equivalent to notice. Attendance of a person at a meeting shall constitute a
waiver of notice of such meeting, except when the person attends a meeting for
the express purpose of objecting, at the beginning of the meeting, to the
transaction of any business because the meeting is not lawfully called or
convened. Neither the business to be transacted at, nor the purpose of any
regular or special meeting of the stockholders, Directors, or members of a
committee of Directors need be specified in any written waiver of notice.
Section 8.4. Interested Directors; Quorum. No contract or transaction
between the corporation and one or more of its Directors or officers, or between
the corporation and any other corporation, partnership, association, or other
organization in which one or more of its directors or officers are directors of
officers, or have a financial interest, shall be void or voidable solely for
this reason, or solely because the director or officer is present at or
participates in the meeting of the Board of Directors or committee thereof which
authorizes the contract or transaction, or solely because his or their votes are
counted for such purpose, if: (1) the material facts as to his relationship or
interest and as to the contract or transaction are disclosed or are known to the
Board of Directors or the committee, and the Board of Directors or committee in
good faith authorizes the contract or transaction by the affirmative votes of a
majority of the disinterested directors, even though the disinterested directors
be less than a quorum; or (2) the material facts as to his relationship or
interest and as to the contract or transaction are disclosed or are known to the
stockholders entitled to vote thereon, and the contract or transaction is
specifically approved in good faith by vote of the stockholders; or (3) the
contract or transaction is fair as to the corporation as of the time it is
authorized, approved or ratified, by the Board of Directors, a
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<PAGE> 10
committee thereof, or the stockholders. Common or interested directors may be
counted in determining the presence of a quorum at a meeting of the Board of
Directors or of a committee which authorizes the contract or transaction.
Section 8.5. Form of Records. Any records maintained by the corporation
in the regular course of its business, including its stock ledger, books of
account, and minute books, may be kept on, or be in the form of, punch cards,
magnetic tape, photographs, microphotographs, or any other information storage
device, provided that the records so kept can be converted into clearly legible
form within a reasonable time. The corporation shall so convert any records so
kept upon the request of any person entitled to inspect the same.
Section 8.6. Amendment of By-Laws. These by-laws may be altered or
repealed, and new by-laws made, by the Board of Directors, but the stockholders
may make additional by-laws and may alter and repeal any by-laws whether adopted
by them or otherwise.
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<PAGE> 1
Exhibit 3.17
CERTIFICATE OF AMENDMENT
TO THE
CERTIFICATE OF INCORPORATION
OF
BROMAR SERVICES, INC.
JULY 13, 1998
BroMar Services, Inc., a corporation organized and existing
under and by virtue of the General Corporation Law of the State of Delaware (the
"Corporation"), does hereby certify that:
FIRST: The name of the Corporation is BroMar Services, Inc.
SECOND: The Board of Directors of the Corporation, by the
consent of all of its members, adopted a resolution declaring advisable that the
following Amendment to the Certificate of Incorporation of the Corporation be
submitted to the stockholders for approval in accordance with Section 242 of the
General Corporation Law of the State of Delaware:
RESOLVED, that the Board of Directors deems it advisable to
amend the Corporation's Certificate of Incorporation:
Article 1 of the Certificate of Incorporation shall be deleted
in its entirety and replaced with the following language:
1. Name. The name of the corporation is ASNSC, Inc.
THIRD: The aforesaid amendment was duly adopted by the
Corporation's stockholders in accordance with the applicable provisions of
Sections 228 and 242(b)(1) of the General Corporation Law of the State of
Delaware.
IN WITNESS WHEREOF, BroMar Services, Inc. has caused this
certificate to be executed by the undersigned this 13th day of July, 1998.
BROMAR SERVICES, INC.
<PAGE> 1
EXHIBIT 3.18
CERTIFICATE OF INCORPORATION
OF
PROSOURCE MEXICO HOLDINGS, INC.
The undersigned, natural persons, for the purpose of organizing a corporation
for conducting the business and promoting the purposes hereinafter stated, under
the provisions and subject to the requirements of the laws of the State of
Delaware (particularly Chapter 1, Title 8 of the Delaware Code and the acts
amendatory thereof and supplemental thereto, and known, identified, and referred
to as the "General Corporation Law of the State of Delaware"), hereby certify
that:
FIRST: The name of the corporation (the "Corporation") is PROSOURCE MEXICO
HOLDINGS, INC.
SECOND: The address, including street, number, city, and county, of the
registered office of the Corporation in the State of Delaware is 32 Loockerman
Square, Suite L-100, City of Dover, County of Kent; and the name of the
registered agent of the Corporation in the State of Delaware at such address is
The Prentice-Hall Corporation System, Inc.
THIRD: The purpose of the Corporation is to engage in any lawful act or activity
for which corporations may be organized under the General Corporation Law of the
State of Delaware.
FOURTH: The total number of shares of capital stock which the Corporation shall
have the authority to issue is one thousand shares consisting of Common Stock
having a par value of $1.00 per share.
FIFTH: The name and the mailing address of the incorporator are as follows:
<TABLE>
<CAPTION>
NAME MAILING ADDRESS
---- ---------------
<S> <C>
Gary J. Cohen c/o Fine Jacobson Schwartz
Nash & Block
100 S.E. 2nd Street
Suite 3600
Miami, Florida 33131
</TABLE>
SIXTH: The Corporation is to have perpetual existence.
<PAGE> 2
SEVENTH: Whenever a compromise or arrangement is proposed between this
Corporation and its creditors or any class of them and/or between this
Corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware may, on the application in a summary
way of this Corporation or of any creditor or stockholder thereof or on the
application of any receiver or receivers appointed for this Corporation under
the provisions of Section 291 of Title 8 of the Delaware Code or on the
application of trustees in dissolution or of any receiver or receivers appointed
for this Corporation under the provisions of Section 279 of Title 8 of the
Delaware Code order a meeting of the creditors or class of creditors, and/or of
the stockholders or class of stockholders of this Corporation, as the case may
be, to be summoned in such manner as the said court directs. If a majority in
number representing three fourths (3/4) in value of the creditors or class of
creditors, and/or of the stockholders or class of stockholders of this
Corporation, as the case may be, agree to any compromise or arrangement and to
any reorganization of this Corporation as a consequence of such compromise or
arrangement, the said compromise or arrangement and the said reorganization
shall, if sanctioned by the court to which the said application has been made,
be binding on all the creditors or class of creditors, and/or on all the
stockholders or class of stockholders, of this Corporation, as the case may be,
and also on this Corporation.
EIGHTH: For the management of the business and for the conduct of the affairs of
the Corporation, and in further definition, limitation, and regulation of the
powers of the Corporation and of its directors and of its stockholders or any
class thereof, as the case may be, it is further provided:
1. Subject to those matters reserved to the stockholders of the
Corporation as set froth in the Bylaws, the management of the business and the
conduct of the affairs of the Corporation shall be vested in its Board of
Directors. The number of directors which shall constitute the whole Board of
Directors shall be fixed by, or in the manner provided in, the Bylaws. The
phrase "whole Board" and the phrase "total number of directors" shall be deemed
to have the same meaning, to wit, the total number of directors which the
Corporation would have if there were no vacancies. No election of directors need
be by written ballot.
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<PAGE> 3
2. The power to adopt, amend, or repeal the Bylaws of the Corporation
may be exercised only by the stockholders of the Corporation entitled to vote.
3. Whenever the Corporation shall be authorized to issue only one (1)
class of stock, each outstanding share shall entitle the holder thereof to
notice of, and the right to vote at, any meeting of stockholders. Whenever the
Corporation shall be authorized to issue more than one class of stock, no
outstanding share of any class of stock which is denied voting power under the
provisions of the certificate of incorporation shall entitle the holder thereof
to the right to vote at any meeting of stockholders except as the provisions of
paragraph (2) of subsection (b) of Section 242 of the General Corporation Law of
the State of Delaware shall otherwise require; provided, that no share of any
such class which is otherwise denied voting power shall entitle the holder
thereof to vote upon the increase or decrease in the number of authorized shares
of said class.
NINTH: The personal liability of the directors of the Corporation is hereby
eliminated to the fullest extent permitted by the provisions of paragraph (7) of
subsection (b) of Section 102 of the General Corporation Law of the State of
Delaware, as the same may be amended and supplemented.
TENTH: The Corporation shall, to the fullest extent permitted by the provisions
of Section 145 of the General Corporation Law of the State of Delaware, as the
same may be amended and supplemented, indemnify any and all persons whom it
shall have power to indemnify under said section from and against any and all of
the expenses, liabilities, or other matters referred to in or covered by said
section, and the indemnification provided for herein shall not be deemed
exclusive of any other rights to which those indemnified may be entitled under
any Bylaw, agreement, vote of stockholders or disinterested directors or
otherwise, both as to action in his official capacity and as to action in
another capacity while holding such office, and shall continue as to a person
who has ceased to be a director, officer, employee, or agent and shall inure to
the benefit of the heirs, executors, and administrators of such a person.
ELEVENTH: From time to time, any of the provisions of this certificate of
incorporation may be amended, altered, or repealed, and other provisions
authorized by the laws of the State of Delaware at the time in force may be
added or inserted in the manner
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<PAGE> 4
and at the time prescribed by said laws, and all rights at any time conferred
upon the stockholders of the Corporation by this certificate of incorporation
are granted subject to the provisions of this Article ELEVENTH.
Signed on January 15, 1993.
/s/ Gary J. Cohen
---------------------------
GARY J. COHEN, Incorporator
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<PAGE> 1
EXHIBIT 3.19
BY-LAWS
OF
PROSOURCE MEXICO HOLDINGS, INC.
A DELAWARE CORPORATION,
AS ADAPTED ON
JANUARY 19, 1993
<PAGE> 2
TABLE OF CONTENTS
PAGE
ARTICLE 1 DEFINITIONS..................................................... 1
ARTICLE 2 STOCKHOLDERS.................................................... 2
2.1 Place of Meetings.......................................... 2
2.2 Annual Meeting............................................. 2
2.3 Special Meetings........................................... 3
2.4 Fixing Record Date......................................... 3
2.5 Notice of Meetings of Stockholders......................... 4
2.6 Waivers of Notice.......................................... 5
2.7 Lists of Stockholders...................................... 5
2.8 Quorum of Stockholders; Adjournment........................ 6
2.9 Voting; Proxies............................................ 6
2.10 Selection and Duties of Inspectors at Meetings of
Stockholders............................................. 7
2.11 Organization............................................... 8
2.12 Order of Business.......................................... 8
ARTICLE 3 DIRECTORS....................................................... 8
3.1 General Powers............................................. 8
3.2 Nominations for Directors.................................. 9
3.3 Number; Qualification; Term of Office...................... 9
3.4 Election................................................... 9
3.5 Newly Created Directorships and Vacancies.................. 9
3.6 Resignations............................................... 10
3.7 Removal of Directors....................................... 10
3.8 Compensation............................................... 10
3.9 Place and Time of Meetings of the Board.................... 11
3.10 Annual Meetings............................................ 11
3.11 Regular Meetings........................................... 11
3.12 Special Meetings........................................... 11
3.13 Adjourned Meetings......................................... 12
3.14 Waiver of Notice........................................... 12
3.15 Organization............................................... 13
3.16 Quorum of Directors........................................ 13
3.17 Action by the Board........................................ 13
ARTICLE 4 COMMITTEES OF THE BOARD......................................... 14
ARTICLE 5 OFFICERS........................................................ 15
5.1 Officers................................................... 16
5.2 Removal of Officers........................................ 16
5.3 Resignations............................................... 16
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5.4 Vacancies.................................................. 17
5.5 Compensation............................................... 17
5.6 President.................................................. 17
5.7 Vice Presidents............................................ 17
5.8 Secretary.................................................. 18
5.9 Treasurer.................................................. 19
5.10 Assistant Secretaries and Assistant Treasurers............. 20
ARTICLE 6 CONTRACTS, CHECKS, DRAFTS, BANK ACCOUNTS, ETC................... 20
6.1 Execution of Contracts..................................... 20
6.2 Loans...................................................... 20
6.3 Checks, Drafts, Etc........................................ 21
6.4 Deposits................................................... 21
ARTICLE 7 STOCK AND DIVIDENDS............................................. 21
7.1 Certificates Representing Shares........................... 21
7.2 Transfer of Shares......................................... 22
7.3 Transfer and Registry Agents............................... 23
7.4 Lost, Destroyed, Stolen and Mutilated Certificates......... 23
7.5 Regulations................................................ 23
7.6 Restriction on Transfer of Stock........................... 24
7.7 Dividends, Surplus, Etc.................................... 24
ARTICLE 8 INDEMNIFICATION................................................. 25
8.1 Indemnification of Officers and Directors.................. 25
8.2 Indemnification of Other Persons........................... 26
8.3 Advancement of Expenses.................................... 26
8.4 Insurance.................................................. 27
8.5 Nonexclusivity of Provisions............................... 27
ARTICLE 9 BOOKS AND RECORDS............................................... 27
9.1 Books and Records.......................................... 28
9.2 Form of Records............................................ 28
9.3 Inspection of Books and Records............................ 28
ARTICLE 10 SEAL............................................................ 28
ARTICLE 11 FISCAL YEAR..................................................... 29
ARTICLE 12 VOTING OF SHARES HELD........................................... 29
ARTICLE 13 AMENDMENTS...................................................... 30
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<PAGE> 4
BY-LAWS
OF
PROSOURCE MEXICO HOLDINGS, INC.
(A DELAWARE CORPORATION)
ARTICLE 1
DEFINITIONS
As used in these By-laws, unless the context otherwise requires, the
term:
1.1 "Assistant Secretary" means an Assistant Secretary of the
Corporation.
1.2 "Assistant Treasurer" means an Assistant Treasurer of the
Corporation.
1.3 "Board" means the Board of Directors of the Corporation.
1.4 "By-laws" means the initial by-laws of the Corporation, as amended
from time to time.
1.5 "Certificate of Incorporation" means the initial certificate of
incorporation of the Corporation, as amended, supplemented or restated from time
to time.
1.6 "Corporation" means PROSOURCE MEXICO HOLDINGS, INC., a Delaware
corporation.
1.7 "Directors" means directors of the Corporation.
1.8 "General Corporation Law" means the General Corporation Law of the
State of Delaware, as amended from time to time.
<PAGE> 5
1.9 "Office of the Corporation" means the executive office of the
Corporation, anything contained in Section 131 of the General Corporation Law to
the contrary notwithstanding.
1.10 "President" means the President of the Corporation.
1.11 "Secretary" means the Secretary of the Corporation.
1.12 "Stockholders" means stockholders of the Corporation.
1.13 "Total number of directors" means the total number of directors
determined in accordance with Section 141(b) of the General Corporation Law and
Section 3.3 of the By-laws.
1.14 "Treasurer" means the Treasurer of the Corporation.
1.15 "Vice President" means a Vice President of the Corporation.
1.16 "Whole Board" means the total number of directors of the
Corporation.
ARTICLE 2
STOCKHOLDERS
2.1 PLACE OF MEETINGS. Every meeting of Stockholders shall be held at
the office of the Corporation or at such other place within or without the State
of Delaware as shall be specified or fixed in the notice of such meeting or in
the waiver of notice thereof.
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<PAGE> 6
2.2 ANNUAL MEETING. A meeting of Stockholders shall be held annually
for the election of directors and the transaction of any other business that may
come before the meeting. The time and place of the meeting shall be as
determined by the Board and designated in the notice of meeting.
2.3 SPECIAL MEETINGS. A special meeting of Stockholders, unless
otherwise prescribed by statute, may be called at any time by the Board, by the
President or by the holders of not less than 10% of the outstanding shares
entitled to vote at any meeting of the Stockholders. At any special meeting of
Stockholders only such business may be transacted as is related to the purpose
or purposes of such meeting set forth in the notice thereof given pursuant to
Section 2.5 of the By-laws or in any waiver of notice thereof given pursuant to
Section 2.6 of the By-laws.
2.4 FIXING RECORD DATE. For the purpose of determining the
Stockholders entitled to notice of or to vote at any meeting of Stockholders or
any adjournment thereof, or to express consent to corporate action in writing
without a meeting, or for the purpose of determining Stockholders entitled to
receive payment of any dividend or other distribution or allotment of any
rights, or entitled to exercise any rights in respect of any change, conversion
or exchange of stock, or for the purpose of any other lawful action, the Board
may fix, in advance, a date as the record date for any such determination of
Stockholders. Such date shall not be more than sixty nor less than ten days
before
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<PAGE> 7
the date of such meeting, nor more than sixty days prior to any other action. If
no such record date is fixed:
2.4.1 The record date for determining Stockholders entitled to
notice of or to vote at a meeting of Stockholders shall be at the close
of business on the day next preceding the day on which notice is given,
or, if notice is waived, at the close of business on the day next
preceding the day on which the meeting is held;
2.4.2 The record date for determining Stockholders entitled to
express consent to corporate action in writing without a meeting, when
no prior action by the Board is necessary, shall be the day on which
the first written consent is expressed;
2.4.3 The record date for determining Stockholders for any
purpose other than those specified in Sections 2.4.1 and 2.4.2 shall be
at the close of business on the day on which the Board adopts the
resolution relating thereto.
When a determination of Stockholders entitled to notice of or to vote at any
meeting of Stockholders has been made as provided in this Section 2.4, such
determination shall apply to any adjournment thereof, unless the Board fixes a
new record date for the adjourned meeting.
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<PAGE> 8
2.5 NOTICE OF MEETINGS OF STOCKHOLDERS. Except as otherwise provided
in Sections 2.4 and 2.6 of the By-laws, whenever under the General Corporation
Law or the Certificate of Incorporation or the By-laws, Stockholders are
required or permitted to take any action at a meeting, written notice shall be
given stating the place, date and hour of the meeting and, in the case of a
special meeting, the purpose or purposes for which the meeting is called. A copy
of the notice of any meeting shall be given, personally or by mail, not less
than ten nor more than sixty days before the date of the meeting, to each
Stockholder entitled to notice of or to vote at such meeting. If mailed, such
notice shall be deemed to be given when deposited in the United States mail,
with postage prepaid, directed to the Stockholder at his address as it appears
on the records of the Corporation. An affidavit of the Secretary or an Assistant
Secretary or of the transfer agent of the Corporation that the notice required
by this Section 2.5 has been given shall, in the absence of fraud, be prima
facie evidence of the facts stated therein. When a meeting is adjourned to
another time or place, notice need not be given of the adjourned meeting if the
time and place thereof are announced at the meeting at which the adjournment is
taken, and at the adjourned meeting any business may be transacted that might
have been transacted at the meeting as originally called. If, however, the
adjournment is for more than thirty days, or if after the adjournment a new
record date is
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<PAGE> 9
fixed for the adjourned meeting, a notice of the adjourned meeting shall be
given to each Stockholder of record entitled to vote at the meeting.
2.6 WAIVERS OF NOTICE. Whenever notice is required to be given to any
Stockholder under any provision of the General Corporation Law or the
Certificate of Incorporation or the By-laws, a written waiver thereof, signed by
the Stockholder entitled to notice, whether before or after the time stated
therein, shall be deemed equivalent to notice. Attendance of a Stockholder at a
meeting shall constitute a waiver of notice of such meeting, except when the
Stockholder attends a meeting for the express purpose of objecting, at the
beginning of the meeting, to the transaction of any business because the meeting
is not lawfully called or convened. Neither the business to be transacted at,
nor the purpose of, any regular or special meeting of the Stockholders need be
specified in any written waiver of notice.
2.7 LISTS OF STOCKHOLDERS. The Secretary shall prepare and make, or
cause to be prepared and made, at least ten days before every meeting of
Stockholders, a complete list of the Stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
Stockholder and the number of shares registered in the name of each Stockholder.
Such list shall be open to the examination of any Stockholder, for any purpose
germane to the meeting, during ordinary business
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<PAGE> 10
hours, for a period of at least ten days prior to the meeting, either at a place
within the city where the meeting is to be held, which place shall be specified
in the notice of the meeting, or, if not so specified, at the place where the
meeting is to be held. The list shall also be produced and kept at the time and
place of the meeting during the whole time thereof, and may be inspected by any
Stockholder who is present.
2.8 QUORUM OF STOCKHOLDERS; ADJOURNMENT. The holders of one-third of
the shares of stock entitled to vote at any meeting of Stockholders, present in
person or represented by proxy, shall constitute a quorum for the transaction of
any business at such meeting. When a quorum is once present to organize a
meeting of Stockholders, it is not broken by the subsequent withdrawal of any
Stockholder or Stockholders. The holders of a majority of the shares of stock
present in person or represented by proxy at any meeting of Stockholders,
including an adjourned meeting, whether or not a quorum is present, may adjourn
such meeting to another time and place.
2.9 VOTING; PROXIES. Unless otherwise provided in the Certificate of
Incorporation, every Stockholder of record shall be entitled at every meeting of
Stockholders to one vote for each share of capital stock standing in his name on
the record of Stockholders determined in accordance with Section 2.4 of the
By-laws. If the Certificate of Incorporation provides for more or less than one
vote for any share, on any matter, every
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<PAGE> 11
reference in the Bylaws or the General Corporation Law to a majority or other
proportion of stock shall refer to such majority or other proportion of the
votes of such stock. The provisions of Sections 212 and 217 of the General
Corporation Law shall apply in determining whether any shares of capital stock
may be voted and the persons, if any, entitled to vote such shares, but the
Corporation shall be protected in treating the persons in whose names shares of
capital stock stand on the record of Stockholders as owners thereof for all
purposes. At any meeting of Stockholders (at which a quorum was present to
organize the meeting), all matters, except as otherwise provided by law or by
the Certificate of Incorporation or by the By-laws, shall be decided by a
majority of the votes cast at such meeting by the holders of shares present in
person or represented by proxy and entitled to vote thereon, whether or not a
quorum is present when the vote is taken. All elections of directors shall be by
written ballot unless otherwise provided in the Certificate of Incorporation. In
voting on any other question on which a vote by ballot is required by law or is
demanded at the commencement of the meeting by any Stockholder entitled to vote,
the voting shall be by ballot. Each ballot shall be signed by the Stockholder
voting or by his proxy, and shall state the number of shares voted. On all other
questions, the voting shall be by voice vote. Every Stockholder entitled to vote
at a meeting of Stockholders may authorize another person or persons to act for
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<PAGE> 12
him by proxy. The validity and enforceability of any proxy shall be determined
in accordance with Section 212 of the General Corporation Law.
2.10 SELECTION AND DUTIES OF INSPECTORS AT MEETINGS OF STOCKHOLDERS.
The Board in accordance with Section 231 of the General Corporation Law, in
advance of any meeting of Stockholders, shall appoint one or more inspectors to
act at the meeting or any adjournment thereof. In case any person appointed
fails to appear or act, the vacancy shall be filled by appointment made by the
Board in advance of the meeting or at the meeting by the person presiding
thereat. Each inspector, before entering upon the discharge of his duties, shall
take and sign an oath faithfully to execute the duties of inspector at such
meeting with strict impartiality and according to the best of his ability. The
inspector or inspectors shall determine the number of shares outstanding and the
voting power of each, the shares represented at the meeting, the existence of a
quorum, the validity and effect of proxies, and shall receive votes, ballots or
consents,, hear and determine all challenges and questions arising in connection
with the right to vote, count and tabulate all votes, ballots or consents,
determine the result, and do such acts as are proper to conduct the election or
vote with fairness to all Stockholders. On request of the person presiding at
the meeting or any Stockholder entitled to vote thereat, the inspector or
inspectors shall make a report in writing of any challenge,
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<PAGE> 13
question or matter determined by him or them and execute a certificate of any
fact found by him or them. Any report or certificate made by the inspector or
inspectors shall be prima facie evidence of the facts stated and of the vote as
certified by him or them.
2.11 ORGANIZATION. At every meeting of Stockholders, the President, or
in the absence of the President, a Vice President, and in case more than one
vice President shall be present, that Vice President designated by the Board (or
in the absence of any such designation, the most senior Vice President, based on
age, present), shall act as chairman of the meeting. The Secretary, or in his
absence one of the Assistant Secretaries, shall act as secretary of the meeting.
In case none of the officers above designated to act as chairman or secretary of
the meeting, respectively, shall be present, a chairman or a secretary of the
meeting, as the case may be, shall be chosen by a majority of the votes cast at
such meeting by the holders of shares of capital stock present in person or
represented by proxy and entitled to vote at the meeting.
2.12 ORDER OF BUSINESS. The order of business at all meetings of
Stockholders shall be as determined exclusively by the chairman of the meeting.
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ARTICLE 3
DIRECTORS
3.1 GENERAL POWERS. Except as otherwise provided in the Certificate of
Incorporation, the business and affairs of the Corporation shall be managed by
or under the direction of the Board. The Board may adopt such rules and
regulations, not inconsistent with the Certificate of Incorporation or the
By-laws or applicable laws, as it may deem proper for the conduct of its
meetings and the management of the Corporation. In addition to the powers
expressly conferred by the By-laws, the Board may exercise all powers and
perform all acts which are not required, by the By-laws or the Certificate of
Incorporation or by law, to be exercised and performed by the Stockholders.
3.2 NOMINATIONS FOR DIRECTORS. Nominations for election to the Board
may be made by the Board or by any holder of shares of any outstanding class of
capital stock of the Corporation entitled to vote for the election of directors.
Nominations other than those made by the Board shall be made by notification in
writing delivered to the Secretary not less than twenty nor more than fifty days
prior to any annual or special meeting of Stockholders called for the election
of directors; provided, however that if less than twenty-eight days notice of
such meeting is given to Stockholders, such nomination shall be delivered to the
Secretary not later than the close of business on the seventh
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day following the day on which the notice of such meeting was mailed to
Stockholders.
3.3 NUMBER; QUALIFICATION; TERM OF OFFICE. The Board shall consist of
not less than one nor more than fifteen members. The total number of directors
shall be fixed initially by the incorporator and may thereafter be changed from
time to time by the Board pursuant to a resolution adopted by a majority of the
Whole Board. Directors need not be Stockholders. Each director shall hold office
until his successor is elected and qualified or until his earlier death,
resignation or removal.
3.4 ELECTION. Directors shall, except as otherwise required by law or
by the Certificate of Incorporation, be elected by a plurality of the votes cast
at a meeting of Stockholders by the holders of shares entitled to vote in the
election.
3.5 NEWLY CREATED DIRECTORSHIPS AND VACANCIES. Unless otherwise
provided in the Certificate of Incorporation, newly created directorships
resulting from an increase in the number of directors and vacancies occurring in
the Board for any other reason, including the removal of directors, shall be
filled by vote of a majority of the directors then in office, although less than
a quorum, or by a sole remaining director. A director elected to fill a vacancy
shall be elected to hold office for a term expiring at the annual meeting of
Stockholders at which the term of
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the class of directors to which he has been elected expires, or until his
earlier death, resignation or removal.
3.6 RESIGNATIONS. Any director may resign at any time by written
notice to the Corporation. Such resignation shall take effect at the time
therein specified, and, unless otherwise specified, the acceptance of such
resignation shall not be necessary to make it effective.
3.7 REMOVAL OF DIRECTORS. Any or all of the directors may be removed
from office at any time, with or without cause, but only by the affirmative vote
of the holders of at least two-thirds of the voting power of all of the shares
of the Corporation entitled to vote for the election of directors.
3.8 COMPENSATION. Each director, in consideration of his service as
such, shall be entitled to receive from the Corporation such amount per annum or
such fees for attendance at directors' meetings, or both, as the Board may from
time to time determine, together with reimbursement for the reasonable expenses
incurred by him in connection with the performance of his duties. Each director
who shall serve as a member of any committee of directors in consideration of
his serving as such shall be entitled to such additional amount per annum or
such fees for attendance at committee meetings, or both, as the Board may from
time to time determine, together with reimbursement for the reasonable expenses
incurred by him in the performance of his duties. Nothing contained in this
section shall preclude any
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director from serving the Corporation or its subsidiaries in any other capacity
and receiving proper compensation therefor.
3.9 PLACE AND TIME OF MEETINGS OF THE BOARD. Meetings of the Board,
regular or special, may be held at any place within or without the State of
Delaware. The times and places for holding meetings of the Board may be fixed
from time to time by resolution of the Board or (unless contrary to resolution
of the Board) in the notice of the meeting.
3.10 ANNUAL MEETINGS. On the day when and at the place where the
annual meeting of Stockholders for the election of directors is held, and as
soon as practicable thereafter, the Board may hold its annual meeting, without
notice of such meeting, for the purposes of organization, the election of
officers and the transaction of other business. The annual meeting of the Board
may be held at any other time and place specified in a notice given as provided
in Section 3.12 of the By-laws for special meetings of the Board or in a waiver
of notice thereof.
3.11 REGULAR MEETINGS. Regular meetings of the Board may be held at
such times and places as may be fixed from time to time by the Board. Unless
otherwise required by the Board, regular meetings of the Board may be hold
without notice. If any day fixed for a regular meeting of the Board shall be a
Saturday or Sunday or a legal holiday at the place where such meeting is to be
held, then such meeting shall be held at the same hour at the
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same place on the first business day thereafter which is not a Saturday, Sunday
or legal holiday.
3.12 SPECIAL MEETINGS. Special meetings of the Board shall be held
whenever called by the President or by any two or more directors. Notice of each
special meeting of the Board shall, if mailed, be addressed to each director at
the address designated by him for that purpose or, if none is designated, at his
last known address at least two days before the date on which the meeting is to
be held; or such notice shall be sent to each director at such address by
telegraph, cable, or wireless, or be delivered to him personally, not later than
the day before the date on which such meeting is to be held. Every such notice
shall state the time and place of the meeting but need not state the purposes of
the meeting, except to the extent required by law. If mailed, each notice shall
be deemed given when deposited, with postage thereon prepaid, in a post office
or official depository under the exclusive care and custody of the United States
post office department. Such mailing shall be by first class mail.
3.13 ADJOURNED MEETINGS. A majority of the directors present at any
meeting of the Board, including an adjourned meeting, whether or not a quorum is
present, may adjourn such meeting to another time and place. Notice of any
adjourned meeting of the Board need not be given to any director whether or not
present at the time of the adjournment. Any business may be
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transacted at any adjourned meeting that might have been transacted at the
meeting as originally called.
3.14 WAIVER OF NOTICE. Whenever notice is required to be given to any
director or member of a committee of directors under any provision of the
General Corporation Law or of the Certificate of Incorporation or By-laws, a
written waiver thereof, signed by the person entitled to notice, whether before
or after the time stated therein, shall be deemed equivalent to notice.
Attendance of a person at a meeting shall constitute a waiver of notice of such
meeting, except when the person attends a meeting for the express purpose of
objecting, at the beginning of the meeting, to the transaction of any business
because the meeting is not lawfully called or convened. Neither the business to
be transacted at, nor the purpose of, any regular or special meeting of the
directors, or members of a committee of directors, need be specified in any
written waiver of notice.
3.15 ORGANIZATION. At each meeting of the Board, the President of the
Corporation, or in the absence of the President, a chairman chosen by a majority
of the directors present, shall preside. The Secretary shall act as secretary at
each meeting of the Board. In case the Secretary shall be absent from any
meeting of the Board, an Assistant Secretary shall perform the duties of
secretary at such meeting; and in the absence from any such meeting of the
Secretary and all Assistant Secretaries, the
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person presiding at the meeting may appoint any person to act as secretary of
the meeting.
3.16 QUORUM OF DIRECTORS. One-third of the total number of directors
shall constitute a quorum for the transaction of business or of any specified
item of business at any meeting of the Board.
3.17 ACTION BY THE BOARD. All corporate action taken by the Board or
any committee thereof shall be taken at a meeting of the Board, or of such
committee, as the case may be, except that any action required or permitted to
be taken at any meeting of the Board, or of any committee thereof, may be taken
without a meeting if all members of the Board or committee, as the case may be,
consent thereto in writing, and the writing or writings are filed with the
minutes of proceedings of the Board or committee. Members of the Board, or any
committee designated by the Board, may participate in a meeting of the Board, or
of such committee, as the case may be, by means of conference telephone or
similar communications equipment by means of which all persons participating in
the meeting can hear each other, and participation in a meeting pursuant to this
Section 3.17 shall constitute presence in person at such meeting. Except as
otherwise provided by the Certificate of Incorporation or by law, the vote of a
majority of the directors present (including those who participate by means of
conference telephone or similar communications equipment) at
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the time of the vote, if a quorum is present at such time, shall be the act of
the Board.
ARTICLE 4
COMMITTEES OF THE BOARD
The Board may, by resolution passed by a majority of the Whole Board,
designate one or more committees, each committee to consist of one or more of
the directors of the corporation. The Board may designate one or more directors
as alternate members of any committee, who may replace any absent or
disqualified member at any meeting of the committee. In the absence or
disqualification of a member of a committee, the member or members thereof
present at any meeting and not disqualified from voting, whether or not he or
they constitute a quorum, may unanimously appoint another member of the Board to
act at the meeting in the place of any such absent or disqualified member. Any
such committee, to the extent provided in the resolution of the Board, shall
have and may exercise all the powers and authority of the Board in the
management of the business and affairs of the Corporation, and may authorize the
seal of the Corporation to be affixed to all papers which may require it; but no
such committee shall have the power or authority in reference to amending the
Certificate of Incorporation, adopting an agreement of merger or consolidation,
recommending to the Stockholders the sale, lease or exchange of all or
substantially all of the Corporation's property and assets, recommending to the
Stockholders a
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dissolution of the Corporation or a revocation of a dissolution, or amending the
By-laws of the Corporation; and, unless the resolution designating it expressly
so provides, no such committee shall have the power or authority to declare a
dividend or to authorize the issuance of stock.
ARTICLE 5
OFFICERS
5.1 OFFICERS. The Board shall elect a President, a Secretary and a
Treasurer, and may elect or appoint one or more Vice Presidents and such other
officers as it may determine. The Board may use descriptive words or phrases to
designate the standing, seniority or area of special competence of the Vice
Presidents elected or appointed by it. Each officer shall hold his office until
his successor is elected and qualified or until his earlier death, resignation
or removal in the manner provided in Section 5.2 of the By-laws. Any two or more
offices may be held by the same person. The Board may require any officer to
give a bond or other security for the faithful performance of his duties, in
such amount and with such sureties as the Board may determine. All officers as
between themselves and the Corporation shall have such authority and perform
such duties in the management of the Corporation as may be provided in the
By-laws or as the Board may from time to time determine.
5.2 REMOVAL OF OFFICERS. Any officer elected or appointed by the Board
may be removed by the Board with or
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without cause. The removal of an officer without cause shall be without
prejudice to his contract rights, if any. The election or appointment of an
officer shall not of itself create contract rights.
5.3 RESIGNATIONS. Any officer may resign at any time by so notifying
the Board or the President in writing. Such resignation shall take effect at the
date of receipt of such notice or at such later time as is therein specified,
and, unless otherwise specified, the acceptance of such resignation shall not be
necessary to make it effective. The resignation of an officer shall be without
prejudice to the contract rights of the corporation, if any.
5.4 VACANCIES. A vacancy in any office because of death, resignation,
removal, disqualification or any other cause shall be filled for the unexpired
portion of the term in the manner prescribed in the By-laws for the regular
election or appointment to such office.
5.5 COMPENSATION. Salaries or other compensation of the officers may be
fixed from time to time by the Board. No officer shall be prevented from
receiving a salary or other compensation by reason of the fact that he is also a
director.
5.6 PRESIDENT. The President shall be the chief executive officer of
the Corporation and shall have general supervision over the business of the
Corporation, subject, however, to the control of the Board and or any duly
authorized committee of
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directors. The President shall, if present, preside at all meetings of the
Stockholders and at all meetings of the Board. He may, with the Secretary or the
Treasurer or an Assistant Secretary or an Assistant Treasurer, sign certificates
for shares of capital stock of the Corporation. He may sign and execute in the
name of the Corporation deeds, mortgages, bonds, contracts and other
instruments, except in cases where the signing and execution thereof shall be
expressly delegated by the Board or by the By-laws to some other officer or
agent of the Corporation, or shall be required by law otherwise to be signed or
executed; and, in general, he shall perform all duties incident to the office of
President and such other duties as from time to time may be assigned to him by
the Board.
5.7 VICE PRESIDENTS. At the request of the President, or, in his
absence, at the request of the Board, the Vice Presidents shall (in such order
as may be designated by the Board or, in the absence of any such designation, in
order of seniority based on age) perform all of the duties of the President and
so acting shall have all the powers of, and be subject to all restrictions upon,
the President. Any vice President may, with the Secretary or the Treasurer or a
Assistant Secretary or an Assistant Treasurer, sign certificates for shares of
capital stock of the Corporation. Any Vice President may sign and execute in the
name of the Corporation deeds, mortgages, bonds, contracts or other instruments
authorized by the Board, except in
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cases where the signing and execution thereof shall be expressly delegated by
the Board or by the By-laws to some other officer or agent of the Corporation,
or shall be required by law otherwise to be signed or executed. Each Vice
President shall perform such other duties as from time to time may be assigned
to him by the Board or by the President.
5.8 SECRETARY. The Secretary, if present, shall act as Secretary of
all meetings of the Stockholders and of the Board, and shall keep the minutes
thereof in the proper book or books to be provided for that purpose; he shall
see that all notices required to be given by the Corporation are duly given and
served; he may, with the President or a Vice President, sign certificates for
shares of capital stock of the Corporation; he shall be custodian of the seal of
the Corporation and may seal with the seal of the Corporation, or a facsimile
thereof, all certificates for shares of capital stock of the Corporation and all
documents the execution of which an behalf of the Corporation under its
corporate seal is authorized in accordance with the provisions of the By-laws;
he shall have charge of the stock ledger and also of the other books, records
and papers of the Corporation relating to its organization and management as a
Corporation, and shall see that the reports, statements and other documents
required by law are properly kept and filed; and shall, in general, perform all
the duties incident to the office of
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Secretary and such other duties as from time to time may be assigned to him by
the Board or by the President.
5.9 TREASURER. The Treasurer shall have charge and custody of, and be
responsible for, all funds, securities and notes of the Corporation, receive and
give receipts for moneys due and payable to the Corporation from any source
whatsoever; deposit all such moneys in the name of the Corporation in such
banks, trust companies or other depositories as shall be selected in accordance
with these By-laws; against proper vouchers, cause such funds to be disbursed by
checks or drafts on the authorized depositories of the Corporation signed in
such manner as shall be determined in accordance with any provisions of the
By-laws, and be responsible for the accuracy of the amounts of all moneys so
disbursed; regularly enter or cause to be entered in books to be kept by him or
under his direction full and adequate account of all moneys received or paid by
him for the account of the Corporation, have the right to require, from time to
time, reports or statements giving such information as he may desire with
respect to any and all financial transactions of the Corporation from the
officers or agents transacting the same; render to the President or the Board,
whenever the President or the Board, respectively, shall require him so to do,
an account of the financial condition of the Corporation and of all his
transactions as Treasurer; exhibit at all reasonable times his books of account
and other records to any of the directors upon application at the office of
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the Corporation where such books and records are kept; and, in general, perform
all the duties incident to the Office of Treasurer and such other duties as from
time to time may be assigned to him by the Board or by the President; and he may
sign with the President or a Vice President certificates for shares of capital
stock of the Corporation.
5.10 ASSISTANT SECRETARIES AND ASSISTANT TREASURERS. Assistant
Secretaries and Assistant Treasurers shall perform such duties as shall be
assigned to them by the Secretary or by the Treasurer, respectively, or by the
Board or by the President. Assistant Secretaries and Assistant Treasurers may,
with the President or a Vice President, sign certificates for shares of capital
stock of the Corporation.
ARTICLE 6
CONTRACTS, CHECKS, DRAFTS, BANK ACCOUNTS, ETC.
6.1 EXECUTION OF CONTRACTS. The Board may authorize any officer,
employee or agent, in the name and on behalf of the Corporation, to enter into
any contract or execute and satisfy any instrument, and any such authority may
be general or confined to specific instances, or otherwise limited.
6.2 LOANS. The President or any other officer, employee or agent
authorized by the By-laws or by the Board may effect loans and advances at any
time for the corporation from any bank, trust company or other institutions or
from any firm, corporation or individual and for such loans and advances may
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make, execute and deliver promissory notes, bonds or other certificates or
evidences of indebtedness of the Corporation, and, when authorized by the Board
so to do, may pledge and hypothecate or transfer any securities or other
property of the Corporation as security for any such loans or advances. Such
authority conferred by the Board may be general or confined to specific
instances or otherwise limited.
6.3 CHECKS, DRAFTS, ETC. All checks, drafts and other orders for the
payment of money out of the funds of the Corporation and all notes or other
evidences of indebtedness of the Corporation shall be signed on behalf of the
Corporation in such manner as shall from time to time be determined by
resolution of the Board.
6.4 DEPOSITS. The funds of the Corporation not otherwise employed
shall be deposited from time to time to the order of the Corporation in such
banks, trust companies or other depositories as the Board may select or as may
be selected by an officer, employee or agent of the Corporation to which such
power may from time to time be delegated by the Board or the President.
ARTICLE 7
STOCK AND DIVIDENDS
7.1 CERTIFICATES REPRESENTING SHARES. The shares of capital stock of
the Corporation shall be represented by certificates in such form (consistent
with the provisions of Section 158 of the General Corporation Law) as shall be
approved by the
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Board. Such certificates shall be signed by the President or a Vice President
and by the Secretary or an Assistant Secretary or the Treasurer or an Assistant
Treasurer, and may be sealed with the seal of the Corporation or a facsimile
thereof. The signatures of the officers upon a certificate may be facsimiles, if
the certificate is countersigned by a transfer agent or registrar other than the
Corporation itself or its employee. In case any officer, transfer agent or
registrar who has signed or whose facsimile signature has been placed upon any
certificate shall have ceased to be such officer, transfer agent or registrar
before such certificate is issued, such certificate may, unless otherwise
ordered by the Board, be issued by the Corporation with the same effect as if
such person were such officer, transfer agent or registrar at the date of issue.
7.2 TRANSFER OF SHARES. Transfers of shares of capital stock of the
Corporation shall be made only an the books of the Corporation by the holder
thereof or by his duly authorized attorney appointed by a power of attorney duly
executed and filed with the Secretary or a transfer agent of the Corporation,
and on surrender of the certificate or certificates representing such shares of
capital stock properly endorsed for transfer and upon payment of all necessary
transfer taxes. Every certificate exchanged, returned or surrendered to the
Corporation shall be marked "Cancelled," with the date of cancellation, by the
Secretary or an Assistant Secretary or the transfer agent of the
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Corporation. A person in those name shares of capital stock shall stand on the
books of the Corporation shall be deemed the owner thereof to receive dividends,
to vote as such owner and for all other purposes as respects the Corporation. No
transfer of shares of capital stock shall be valid as against the Corporation,
its Stockholders and creditors for any purpose, except to render the transferee
liable for the debts of the Corporation to the extent provided by law, until
such transfer shall have been entered on the books of the Corporation by an
entry showing from and to whom transferred.
7.3 TRANSFER AND REGISTRY AGENTS. The Corporation may from time to time
maintain one or more transfer offices or agents and registry offices or agents
at such place or places as may be determined from time to time by the Board.
7.4 LOST, DESTROYED, STOLEN AND MUTILATED CERTIFICATES. The holder of
any shares of capital stock of the Corporation shall immediately notify the
Corporation of any loss, destruction, theft or mutilation of the certificate
representing such shares, and the Corporation may issue a new certificate to
replace the certificate alleged to have been lost, destroyed, stolen or
mutilated. The Board may, in its discretion, as a condition to the issue of any
such new certificate, require the owner of the lost, destroyed, stolen or
mutilated certificate, or his legal representatives, to make proof satisfactory
to the Board of such loss, destruction, theft or Mutilation and to
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advertise such fact in such manner as the Board may require, and to give the
Corporation and its transfer agents and registrars them as the Board may
require, a bond in such form, in such sums and with such surety or sureties as
the Board may direct, to indemnity the Corporation and its transfer agents and
registrars against any claim that may be made against any of them on account of
the continued existence of any such certificate so alleged to have been lost,
destroyed, stolen or mutilated and against any expense in connection with such
claim.
7.5 REGULATIONS. The Board may make such rules and regulations as it
may deem expedient, not inconsistent with the By-laws or with the Certificate of
Incorporation, concerning the issue, transfer and registration of certificates
representing shares of its capital stock.
7.6 RESTRICTION ON TRANSFER OF STOCK. A written restriction on the
transfer or registration of transfer of capital stock of the Corporation, if
permitted by Section 202 of the General Corporation Law and noted conspicuously
on the certificate representing such capital stock, may be enforced against the
holder of the restricted capital stock or any successor or transferee of the
holder including an executor, administrator, trustee, guardian or other
fiduciary entrusted with like responsibility for the person or estate of the
holder. Unless noted conspicuously on the certificate representing such capital
stock, a restriction, even though permitted by Section 202 of the
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General Corporation Law, shall be ineffective except against a person with
actual knowledge of the restriction. A restriction on the transfer or
registration of transfer of capital stock of the Corporation may be imposed
either by the Certificate of Incorporation or by an agreement among any number
of Stockholders or among such Stockholders and the Corporation. No restriction
so imposed shall be binding with respect to capital stock issued prior to the
adoption of the restriction unless the holders of such capital stock are parties
to an agreement or voted in favor of the restriction.
7.7 DIVIDENDS, SURPLUS, ETC. Subject to the provisions of the
Certificate of Incorporation and of law, the Board
7.7.1 May declare and pay dividends or make other distributions
on the outstanding shares of capital stock in such amounts and at such
time or times as, in its discretion, the condition of the affairs of
the Corporation shall render advisable;
7.7.2 May use and apply, in its discretion, any of the surplus of
the Corporation in purchasing or acquiring any shares of capital stock
of the Corporation, or purchase warrants therefor, in accordance with
law, or any of its bonds, debentures, notes, scrip or other securities
or evidences of indebtedness;
7.7.3 May set aside from time to time out of such surplus or net
profits such sum or sums as, in its
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discretion, it may think proper, as a reserve fund to meet
contingencies, or for equalizing dividends or for the purpose of
maintaining or increasing the property or business of the Corporation,
or for any purpose it may think conducive to the best interests of the
Corporation.
ARTICLE 8
INDEMNIFICATION
8.1 INDEMNIFICATION OF OFFICERS AND DIRECTORS. The Corporation shall
indemnify 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, by reason of the fact that he
is or was a director or an officer of the Corporation, against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by him in connection with such action, suit or
proceeding to the fullest extent and in the manner set forth in and permitted by
the General Corporation Law, and any other applicable law, as from time to time
in effect. Such right of indemnification shall not be deemed exclusive of any
other rights to which such director or officer may be entitled apart from the
foregoing provisions. The foregoing provisions of this Section 8.1 shall be
deemed to be a contract between the Corporation and each director and officer
who serves in such capacity at any time while this
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Article 8 and the relevant provisions of the General Corporation Law and other
applicable law, if any, are in effect, and any repeal or modification thereof
shall not affect any rights or obligations then existing with respect to any
state of facts then or theretofore existing or any action, suit or proceeding
theretofore or thereafter brought or threatened based in whole or in part upon
any such state of facts.
8.2 INDEMNIFICATION OF OTHER PERSONS. The Corporation shall indemnify
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 by reason of the fact that he is or
was an employee or agent of the Corporation, or is or was serving at the request
of the Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, against
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding to the extent and in the manner set forth in and
permitted by the General Corporation Law, and any other applicable law, as from
time to time in effect. Such right of indemnification shall not be deemed
exclusive of any other rights to which any such person may be entitled apart
from the foregoing provisions.
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8.3 ADVANCEMENT OF EXPENSES. Expenses incurred in defending a civil or
criminal action, suit or proceeding may be paid by the Corporation in advance of
the final disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of the person to repay such amount if it shall
ultimately be determined that he is not entitled to be indemnified by the
Corporation.
8.4 INSURANCE. The Corporation shall have power to purchase and
maintain insurance on behalf of any person who is or was a director, officer,
employee or agent of the Corporation, or is or was serving at the request of the
Corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise against any liability
asserted against him and incurred by him in any such capacity, or arising out of
his status as such, whether or not the Corporation would have the power to
indemnify him or hold him harmless against such liability under the provisions
of Sections 8.1, 8.2 or 8.3 of the By-laws or under Section 145 of the General
Corporation Law or any other provision of law.
8.5 NONEXCLUSIVITY OF PROVISIONS. The indemnification and advancement
of expenses provided by this Article 8 shall not be deemed exclusive of any
other rights to which any person seeking indemnification or advancement of
expenses may be entitled under applicable law, the Certificate of Incorporation,
any agreement, any vote of Stockholders or disinterested directors,
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or otherwise, both as to action in his official capacity and as to action in any
other capacity while holding such office, and shall continue as to a person who
has ceased to be a director or officer and shall inure to the benefit of the
heirs, executors and administrators of such a person.
ARTICLE 9
BOOKS AND RECORDS
9.1 BOOKS AND RECORDS. The Corporation shall keep correct and complete
books and records of account and shall keep minutes of the proceedings of the
Stockholders, the Board and any committee of the Board. The Corporation shall
keep at the office designated in the Certificate of Incorporation or at the
office of the transfer agent or registrar of the Corporation, a record
containing the names and addresses of all stockholders, the number and class of
shares held by each and the dates when they respectively became the owners of
record thereof.
9.2 FORM OF RECORDS. Any records maintained by the Corporation in the
regular course of its business, including its stock ledger, books of account,
and minute books, may be kept on, or be in the form of, punch cards, magnetic
tape, photographs, microphotographs, or any other information storage device,
provided that the records so kept can be converted into clearly legible written
form within a reasonable time. The Corporation shall so convert any records so
kept upon the request of any person entitled to inspect the same.
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<PAGE> 37
9.3 INSPECTION OF BOOKS AND RECORDS. Except as otherwise provided by
law, the Board shall determine from time to time whether, and, if allowed, when
and under what condition and regulations, the accounts, books, minutes and other
records of the Corporation, or any of them, shall be open to the inspection of
the Stockholders.
ARTICLE 10
SEAL
The Board may adopt a corporate seal which shall be in the form of a
circle and shall bear the full name of the Corporation, the year of its
incorporation and the word "Delaware."
ARTICLE 11
FISCAL YEAR
The fiscal year of the Corporation shall be determined, and may be
changed, by resolution of the Board.
ARTICLE 12
VOTING OF SHARES HELD
Unless otherwise provided by resolution of the Board, the President
may, from time to time, appoint one or more attorneys or agents of the
Corporation, in the name and on behalf of the Corporation, to cast the votes
which the Corporation may be entitled to cast as a Stockholder or otherwise in
any other corporation, any of whose shares or securities may be held by the
Corporation, at meetings of the holders of stock or other
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<PAGE> 38
securities of such other corporation, or to consent in writing to any action by
any such other corporation, and may instruct the person or persons so appointed
as to the manner of casting such votes or giving such consent, and may execute
or cause to be executed on behalf of the Corporation and under its corporate
seal, or otherwise, such written proxies, consents, waivers or other instruments
as he may deem necessary or proper in the premises; or the President may himself
attend any meeting of the holders of the stock or other securities of any such
other corporation and thereat vote or exercise any or all other powers of the
Corporation as the holder of such stock or other securities of such other
corporation.
ARTICLE 13
AMENDMENTS
The By-laws may be altered, amended, supplemented or repealed, or new
By-laws may be so adopted, by vote of the holders of the shares entitled to vote
in the election of directors. The By-laws may be altered, amended, supplemented
or repealed, or new By-laws may be adopted, by the action of a majority of the
Whole Board. Any By-laws adopted, altered, amended, or supplemented by the Board
may be altered, amended, or supplemented or repealed by the Stockholders
entitled to vote thereon.
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<PAGE> 1
EXHIBIT 12.1
AMERISERVE FOOD DISTRIBUTION, INC.
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
(AMOUNTS IN THOUSANDS, EXCEPT RATIO DATA)
<TABLE>
<CAPTION>
FISCAL YEAR
------------------------------------------------
1994 1995 1996 1997 1998
------ ------ ------- -------- ---------
<S> <C> <C> <C> <C> <C>
Income (loss) before income taxes............... $ 665 $1,089 $ 3,818 $(63,820) $(145,632)
Fixed charges................................... 5,323 6,065 16,307 54,196 103,902
------ ------ ------- -------- ---------
Earnings........................................ $5,988 $7,154 $20,125 $ (9,624) $ (41,730)
====== ====== ======= ======== =========
Interest expense................................ $3,294 $3,936 $10,999 $ 46,805 $ 84,447
Amortization of deferred financing costs........ 226 226 722 1,678 2,650
Interest portion of rent expenses............... 1,803 1,903 4,586 5,713 16,805
------ ------ ------- -------- ---------
Fixed charges................................... $5,323 $6,065 $16,307 $ 54,196 $ 103,902
====== ====== ======= ======== =========
Ratio of earnings to fixed charges.............. 1.12 1.18 1.23 Note 1 Note 1
====== ====== ======= ======== =========
</TABLE>
- ------------------------------
Note 1: Earnings were less than fixed charges by $63,820 and $145,632 for the
1997 and 1998 fiscal years, respectively.
<PAGE> 1
EXHIBIT 23.1
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the references to our firm under the captions "Experts" and
"Selected AmeriServe Historical Financial Data" and to the use of our report
dated March 22, 1999, with respect to AmeriServe Food Distribution, Inc., in the
Post-effective Amendment No. 2 on Form S-1 to the Registration Statement (Form
S-4 No. 333-33225), and related Prospectus of AmeriServe Food Distribution, Inc.
for the registration of 10 1/8% Senior Subordinated Notes.
ERNST & YOUNG LLP
Dallas, Texas
April 30, 1999
<PAGE> 1
EXHIBIT 23.2
INDEPENDENT AUDITORS' CONSENT
Management of PFS
(A Division of PepsiCo Held for Sale):
We consent to the use of our report included herein and to the reference to
our firm under the heading "Experts" in the prospectus.
KPMG LLP
Dallas, Texas
April 30, 1999
<PAGE> 1
EXHIBIT 23.3
INDEPENDENT AUDITORS' CONSENT
The Board of Directors
ProSource, Inc.:
We consent to the use of our report included herein and to the reference to
our firm under the heading "Experts" in the prospectus.
KPMG LLP
Miami, Florida
April 30, 1999
