<PAGE> 1
As filed with the Securities and Exchange Commission on December 14, 1998
REGISTRATION NO. 333- _____
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------
FORM S-4
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
-------------
PERFORMANCE FOOD GROUP COMPANY
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C> <C>
TENNESSEE 5141 54-0402940
(State or other jurisdiction (Primary Standard Industrial (I.R.S. Employer
of incorporation Classification Code Number) Identification Number)
or organization)
</TABLE>
6800 PARAGON PLACE, STE. 500
RICHMOND, VIRGINIA 23230
(804) 285-7340
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
--------------------------------------
ROGER L. BOEVE
6800 PARAGON PLACE, STE. 500
RICHMOND, VIRGINIA 23230
(804) 285-7340
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copy to:
F. MITCHELL WALKER, JR.
BASS, BERRY & SIMS PLC
2700 FIRST AMERICAN CENTER
NASHVILLE, TENNESSEE 37238
(615) 742-6200
----------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: FROM
TIME TO TIME AFTER THE EFFECTIVE DATE OF THIS REGISTRATION STATEMENT.
If the securities being registered on this form are being offered in
connection with the formation of a holding company and there is compliance with
General Instruction G, check the following box. [ ]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ] ____________________________
If this form is a post-effective amendment filed pursuant to Rule
462(d) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. [ ] _________________________________________
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=================================================================================================================================
Proposed Maximum
Title of Each Class of Amount to Proposed Maximum Aggregate Amount of
Securities to be Registered be Registered Offering Price per Share (1) Offering Price (1) Registration Fee
<S> <C> <C> <C> <C>
- ---------------------------------------------------------------------------------------------------------------------------------
Common Stock 2,500,000 shares $24.3125 $60,781,250.00 $16,897.19
=================================================================================================================================
</TABLE>
(1) Pursuant to Rule 457(c), the price is estimated solely for the purpose
of calculating the registration fee and is based on the average of high
and low reported sales prices of the Common Stock of the Registrant on
the Nasdaq Stock Market on December 9, 1998.
-----------------
The registrant hereby amends this registration statement on such date
or dates as may be necessary to delay its effective date until the registrant
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 this registration statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a)
may determine.
<PAGE> 2
SUBJECT TO COMPLETION
PRELIMINARY PROSPECTUS DATED DECEMBER 14, 1998
PROSPECTUS
PERFORMANCE FOOD GROUP COMPANY
2,500,000 SHARES OF COMMON STOCK
This is a prospectus for the offering of up to 2,500,000 shares of
common stock. We may offer the common stock in connection with future
acquisitions of assets or securities of companies in the foodservice industry,
including assets or companies that process, market or distribute food products
or are involved in other ancillary or related businesses. In addition to the
common stock, we may pay consideration including cash, debt or other securities
or we may assume certain liabilities of the business being acquired.
The terms of future acquisitions will be determined by negotiations
between us and the management or the owners of the assets to be acquired or the
owners of the securities to be acquired. We will take into account the quality
of management, the past and potential earning power and growth of the assets or
securities to be acquired, and other relevant factors.
Our common stock is listed on the Nasdaq Stock Market's National Market
under the symbol "PFGC."
INVESTING IN THE COMMON STOCK INVOLVES RISKS. SEE RISK FACTORS
BEGINNING ON PAGE 4 OF THIS PROSPECTUS.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
--------------------------
The date of this prospectus is _____________, 1998.
- --------------------------------------------------------------------------------
The information in this prospectus is not complete and may be changed. We may
not sell these securities until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an offer
to sell these securities and is not soliciting an offer to buy these securities
in any state where the offer or sale is not permitted.
- --------------------------------------------------------------------------------
<PAGE> 3
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with
the Securities and Exchange Commission (the "SEC") utilizing a "shelf"
registration process. Under this shelf registration process, over the next two
years, we may use up to 2,500,000 shares of the common stock described in this
prospectus in one or more acquisitions of assets or securities of companies in
the foodservice industry. Each time we use the common stock in an acquisition,
we will provide a prospectus supplement that will contain specific information
about the terms of that acquisition. The prospectus supplement may also add,
update or change information contained in this prospectus. You should read both
this prospectus and any prospectus supplements together with additional
information described under the heading WHERE YOU CAN FIND MORE INFORMATION.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and
other information with the SEC. Our SEC filings are available to the public over
the Internet at the SEC's web site at http://www.sec.gov. You may also read and
copy any document we file at the SEC's public reference rooms in Washington,
D.C., New York, New York and Chicago, Illinois. Please call the SEC at
1-800-SEC-0330 for further information on the public reference rooms. We also
maintain a web site at http://www.pfgc.com.
The SEC allows us to "incorporate by reference" the information we file
with them, which means that we can disclose important business and financial
information about us that is not included in or delivered with this prospectus
to you by referring you to other, previously filed documents. The information
incorporated by reference is an important part of this prospectus, and
information that we file later with the SEC will automatically update and
supersede this information. We incorporate by reference the documents listed
below and any future filings made with the SEC under Sections 13(a), 13(c), 14,
or 15(d) of the Securities Exchange Act of 1934, as amended, from the date on
the front of this prospectus until we use all of the common stock described in
this prospectus:
- Annual Report on Form 10-K for the year ended December 27, 1997;
- Quarterly Reports on Form 10-Q for the periods ended March 28,
1998, June 27, 1998, and September 26, 1998;
- The description of our common stock contained in Form 8-A filed
August 12, 1993; and
- The description of our rights to purchase preferred stock
contained in Form 8-A filed May 20, 1997.
You may request a copy of these filings at no cost, by writing or
telephoning us at the following address:
Performance Food Group Company, 6800 Paragon Place, Suite 500,
Richmond, Virginia 23230, (804) 285-5370, Attention: Roger L. Boeve.
You should rely only on the information incorporated by reference or
provided in this prospectus or any prospectus supplement. We have not authorized
anyone else to provide you with different information. We are not making an
offer of the common stock in any state where the offer is not permitted. You
should not assume that the information in this prospectus or a prospectus
supplement is accurate as of any date other than the date on the front of those
documents.
2
<PAGE> 4
CAUTIONARY STATEMENT CONCERNING
FORWARD-LOOKING INFORMATION
This prospectus contains or incorporates by reference certain
forward-looking statements within the meaning of Section 27A of the Securities
Act of 1933, as amended, and Section 21E of the Securities Exchange Act of 1934,
as amended, which are intended to be covered by the safe harbors that these
sections created. Those statements include the discussions of management's
expectations concerning our future profitability, operating and growth strategy,
including strategic acquisitions, and assumptions regarding other matters. When
used in this prospectus, the words "believes," "expects," "anticipates,"
"intends," "estimates," "plans," and similar terms or expressions are intended
to identify forward-looking statements. In addition, we may include
forward-looking statements in various other documents issued in the future and
in various oral statements to securities analysts and potential investors.
Investors are cautioned that all forward-looking statements involve risks and
uncertainties, including the factors described in this prospectus under the
heading RISK FACTORS, which could cause the future results and shareholder
values to differ materially from those expressed in the forward-looking
statements. Although we believe that the assumptions underlying the
forward-looking statements are reasonable, any of the assumptions could be
inaccurate, and, therefore, we cannot guarantee that the forward-looking
statements included or incorporated by reference in this prospectus will prove
to be accurate. Because of the significant uncertainties inherent in the
forward-looking statements included or incorporated by reference, the inclusion
of such information is not a representation by us or any other person that our
objectives and plans will be achieved. In addition, we do not intend to, and are
not obligated to, update these forward-looking statements after we distribute
this prospectus, even if new information, future events or other circumstances
have made them incorrect or misleading as of any future date.
3
<PAGE> 5
THE COMPANY
We market and distribute a wide variety of food and food-related
products to the foodservice, or "away from home eating," industry. The
foodservice industry consists of two major customer types: "traditional"
foodservice customers consisting of independent restaurants, hotels, cafeterias,
schools, healthcare facilities and other institutional customers, and
"multi-unit chain" customers consisting of regional and national quick-service
restaurants and casual dining restaurants. Products and services provided to our
traditional and multi-unit chain customers are supported by identical physical
facilities, vehicles, equipment and personnel. Our customers are located
primarily in the Southern, Southwestern, Midwestern and Northeastern United
States. We operate through a number of subsidiaries, each of which focuses on
specific regional markets or sectors of the foodservice distribution industry.
Our objective is to continue to grow our foodservice distribution
business through both internal growth and acquisitions. Our internal growth
strategy is to increase sales to existing customers and identify new customers
for whom we can act as the principal supplier. We also intend to consider
strategic acquisitions of other foodservice distribution companies both to
further penetrate existing markets and to expand into new markets. Finally, we
strive to achieve higher productivity and efficiency in our existing operations.
Our principal executive offices are located at 6800 Paragon Place,
Suite 500, Richmond, Virginia 23230, our telephone number is (804) 285-5370 and
we maintain a website at http://www.pfgc.com.
RISK FACTORS
You should carefully consider the following factors and other
information in this prospectus before deciding to invest in the common stock:
LOW MARGIN BUSINESS; ECONOMIC SENSITIVITY. We operate in the
foodservice distribution industry which is characterized by a high volume of
sales with relatively low profit margins. A significant portion of our sales are
at prices that are based on product cost plus a percentage markup. As a result,
our profit levels may be negatively impacted when the price of food goes down
even though our gross profit percentage may remain constant. The foodservice
industry is also sensitive to national and regional economic conditions, and the
demand for our foodservice products has been adversely affected from time to
time by economic downturns. In addition, our operating results are particularly
sensitive to, and may be materially adversely impacted by, difficulties with the
collectibility of accounts receivable, inventory control, competitive price
pressures and unexpected increases in wages or other labor costs and fuel or
other transportation-related costs. There can be no assurance that one or more
of such factors will not adversely affect our future operating results. We have
experienced losses due to the uncollectibility of accounts receivable in the
past and could experience such losses in the future.
WE RELY ON MAJOR CUSTOMERS. We derive a substantial portion of our net
sales from customers within the restaurant industry, particularly certain
rapidly growing multi-unit chain customers. Sales to units of Cracker Barrel Old
Country Store, Inc. accounted for 22% of our consolidated net sales in 1997 and
30% of our consolidated net sales in 1996. Sales to Outback Steakhouses, Inc.
accounted for 16% of our consolidated net sales in 1997 and 19% of our
consolidated net sales in 1996. We have no written assurance from any of our
customers as to the level of future sales. A material decrease in sales to any
of our largest customers would have a material adverse impact on our operating
results. We have been the primary supplier of food and food-related products to
Cracker Barrel Old County Store, Inc. since 1975.
4
<PAGE> 6
ACQUISITIONS. A significant portion of our historical growth has been
achieved through acquisitions of other foodservice distributors, and our growth
strategy includes additional acquisitions. There can be no assurance that we
will be able to make successful acquisitions in the future. Furthermore, there
can be no assurance that future acquisitions will not have an adverse effect
upon our operating results, particularly in quarters immediately following the
consummation of such transactions, while the operations of the acquired business
are being integrated into our operations. Following the acquisition of other
businesses in the future, we may decide to consolidate the operations of any
acquired business with existing operations, which may result in the
establishment of provisions for consolidation. To the extent our expansion is
dependent upon our ability to obtain additional financing for acquisitions,
there can be no assurance that we will be able to obtain financing on acceptable
terms.
MANAGEMENT OF GROWTH. We have rapidly expanded our operations since
inception. This growth has placed significant demands on our administrative,
operational and financial resources. The planned continued growth of our
customer base and our services can be expected to continue to place a
significant demand on our administrative, operational and financial resources.
Our future performance and profitability will depend in part on our ability to
successfully implement enhancements to our business management systems and to
adapt to those systems as necessary to respond to changes in our business.
Similarly, our continued growth creates a need for expansion of our facilities
from time to time. As we near maximum utilization of a given facility,
operations may be constrained and inefficiencies may be created which could
adversely affect our operating results until the facility is expanded or volume
is shifted to another facility. Conversely, as we add additional facilities or
expand existing facilities, excess capacity may be created until we are able to
expand our operations to utilize the additional capacity. Such excess capacity
may also create inefficiencies and adversely affect our operating results.
COMPETITION. We operate in highly competitive markets, and our future
success will be largely dependent on our ability to provide quality products and
services at competitive prices. Our competition comes primarily from other
foodservice distributors and produce processors. Some of our competitors have
substantially greater financial and other resources and may be better
established in their markets. Our management believes that competition for sales
is largely based on the quality and reliability of products and services and, to
a lesser extent, price.
OUR SUCCESS DEPENDS ON SENIOR MANAGEMENT AND KEY EMPLOYEES. Our success
is largely dependent on the skills, experience and efforts of our senior
management. The loss of services of one or more of our senior management could
have a material adverse effect upon our business and development. In addition,
we depend to a substantial degree on the services of certain key employees. The
ability to attract and retain qualified employees in the future will be a key
factor in our success.
VOLATILITY OF MARKET PRICE FOR COMMON STOCK. From time to time there
may be significant volatility in the market price for our common stock. Our
quarterly operating results or the operating results of other distributors of
food and related goods, changes in general conditions in the economy, the
financial markets or the food distribution or food services industries, natural
disasters or other developments affecting us or our competitors could cause the
market price of our common stock to fluctuate substantially. In addition, in
recent years the stock market has experienced extreme price and volume
fluctuations. This volatility has had a significant effect on the market prices
of securities issued by many companies for reasons unrelated to their operating
performance.
5
<PAGE> 7
YEAR 2000. Our business depends on computer-based systems to
conduct our business with both customers and suppliers. We also depend on the
computer-based systems of third parties with which we have a material
relationship or whose systems are material to the operations of our business. We
are in the process of upgrading our computer systems and non-information
technology systems to deal with the Year 2000 issue. The Year 2000 issue
generally relates to computer programs that were written using two digits rather
than four to define the applicable year. In those programs, the year 2000 may be
incorrectly identified as the year 1900, which can result in a system failure or
miscalculations that could disrupt normal business activities. We anticipate
that our conversion efforts with respect to our computer systems will be
completed by mid-1999 and are still developing a timetable for completion of our
efforts with respect to our non-information technology systems. We are also in
the process of monitoring the efforts of significant third party merchandise
suppliers and major customers to become Year 2000 compliant and will take
appropriate steps to address any non-compliance issues. We can provide no
assurance that our efforts or contingency plans will be successful, which could
have a material adverse effect on our financial position or results of
operations.
6
<PAGE> 8
SELECTED CONSOLIDATED FINANCIAL DATA
(IN THOUSANDS, EXCEPT PER SHARE DATA)
The following table sets forth our selected consolidated financial data
as of and for the nine months ended September 27, 1997 and September 26, 1998
and as of and for each of the preceding five fiscal years. The selected
consolidated financial data as of and for the nine months ended September 27,
1997 and September 26, 1998 have been derived from our unaudited selected
consolidated financial statements included in our Quarterly Reports on Form 10-Q
which are incorporated by reference in this prospectus. The selected
consolidated financial data for the preceding five fiscal years have been
derived from our consolidated financial statements included in our Annual Report
on Form 10-K which has been audited by KPMG Peat Marwick LLP. The information
set forth below should be read in conjunction with our consolidated financial
statements and related notes referred to above.
<TABLE>
<CAPTION>
FISCAL YEAR ENDED NINE MONTHS ENDED
---------------------------------------------------------------- --------------------------
January 1, December 31, December 30, December 28, December 27, September 27, September 26,
1994 1994 1995 1996 1997 1997 1998
---------- ----------- ------------ ----------- ----------- ------------ -------------
(unaudited)
<S> <C> <C> <C> <C> <C> <C> <C>
STATEMENT OF EARNINGS DATA:
Net sales $ 379,363 $ 473,414 $ 664,123 $ 784,219 $1,230,078 $ 897,651 $ 1,157,441
Cost of goods sold 319,986 405,104 568,097 673,407 1,074,154 784,641 1,007,793
--------- ---------- ---------- --------- ---------- ----------- ------------
Gross profit 59,377 68,310 96,026 110,812 155,924 113,010 149,648
Operating expenses 50,588 60,125 80,302 92,227 132,494 95,951 128,893
--------- ---------- ---------- --------- ---------- ----------- ------------
Operating profit 8,789 8,185 15,724 18,585 23,430 17,059 20,755
--------- ---------- ---------- --------- ---------- ----------- ------------
Other income (expense):
Interest expense (1,311) (388) (2,727) (627) (1,991) (1,385) (2,430)
Other, net 134 (278) 14 176 105 268 192
--------- ---------- ---------- --------- ---------- ----------- ------------
Other expense, net (1,177) (666) (2,713) (451) (1,886) (1,117) (2,238)
--------- ---------- ---------- --------- ---------- ----------- ------------
Earnings before income taxes 7,612 7,519 13,011 18,134 21,544 15,942 18,517
Income tax expense 3,092 2,985 5,088 7,145 8,297 6,153 7,069
--------- ---------- ---------- --------- ---------- ----------- ------------
Net earnings $ 4,520 $ 4,534 $ 7,923 $ 10,989 $ 13,247 $ 9,789 $ 11,448
========= ========== ========== ========= ========== =========== ============
PER SHARE DATA:
Base net earnings per common share $ 0.63 $ 0.50 $ 0.86 $ 0.98 $ 1.11 $ 0.83 $ 0.91
========= ========== ========== ========= ========== =========== ============
Weighted average common shares 7,150 9,107 9,190 11,209 11,960 11,828 12,532
========= ========== ========== ========= ========== =========== ============
Diluted net earnings per common
share $ 0.60 $ 0.47 $ 0.82 $ 0.94 $ 1.06 $ 0.79 $ 0.88
========= ========== ========== ========= ========== =========== ============
Weighted average common shares and
potential dilutive common
shares outstanding 7,501 9,600 9,631 11,686 12,491 12,344 13,048
========= ========== ========== ========= ========== =========== ============
OTHER DATA:
Depreciation and amortization $ 2,870 $ 3,481 $ 5,319 $ 5,484 $ 7,843 $ 5,841 $ 7,690
Capital expenditures 9,105 12,436 13,921 9,074 8,284 6,167 19,935
BALANCE SHEET DATA (END OF PERIOD):
Working capital $ 19,183 $ 16,386 $ 30,299 $ 42,967 $ 52,784 $ 49,307 $ 55,538
Property, plant and equipment, net 26,411 35,352 51,640 55,697 71,810 66,499 86,721
Total assets 83,488 99,075 155,134 182,897 288,883 255,000 352,473
Short-term debt (including current
installments of long-term debt) 1,893 3,211 3,210 650 689 665 593
Long-term debt 5,700 4,966 37,009 7,225 44,577 33,504 71,873
Shareholders' equity 40,643 46,263 55,791 101,135 133,973 120,737 146,964
</TABLE>
7
<PAGE> 9
OUTSTANDING SECURITIES COVERED BY THIS PROSPECTUS
This prospectus has also been prepared for use by the persons who may
receive common stock from us in acquisitions and who may be entitled to offer
such common stock under circumstances requiring the use of a prospectus;
provided, however, that no one is authorized to use this prospectus for any
offer of such common stock without first obtaining our consent. We may consent
to the use of this prospectus for a limited period of time and subject to
limitations and conditions which may be varied by agreement. Resales of such
shares may be made on the Nasdaq Stock Market or any exchange on which the our
common stock may be listed, in the over-the-counter market, in private
transactions or pursuant to underwriting agreements.
Agreements with the sellers permitting use of this prospectus may provide
that any such offering be effected in an orderly manner through securities
dealers, acting as broker or dealer, selected by us; that the sellers enter into
custody agreements with respect to such shares; and that sales be made only by
one or more of the methods described in this prospectus, as appropriately
supplemented or amended when required. The sellers may be deemed to be
underwriters within the meaning of the Securities Act of 1933, as amended (the
"Securities Act").
When resales are to be made through a broker or dealer selected by us, it
is anticipated that such a firm may be engaged to act as the sellers' agent in
the sale of shares. The commission paid to the firm will be an ordinary
commission including negotiated commissions or mark-ups to the extent
permissible. Sales of shares by the firm may be made on the Nasdaq Stock Market
or any exchange at prices related to prices then prevailing. Any such sales may
be by block trade. Any such firm may be deemed to be an underwriter within the
meaning of the Securities Act, and any commissions earned by such firm may be
deemed to be underwriting discounts and commissions under the Securities Act.
When we are notified by a seller that a block trade has taken place, a
supplemental prospectus, if required, will be filed pursuant to Rule 424 under
the Securities Act, disclosing the name of the firm, the number of shares
involved, the price at which such shares were sold and the commissions to be
paid to such firm.
LEGAL MATTERS
Bass, Berry & Sims PLC, Nashville, Tennessee will issue an opinion about
the legality of the common stock.
EXPERTS
The consolidated financial statements of Performance Food Group Company
and subsidiaries and the related financial statement schedule as of December 27,
1997 and December 28, 1996, and for each of the fiscal years in the three-year
period ended December 27, 1997, have been incorporated by reference in this
registration statement in reliance upon the report of KPMG Peat Marwick LLP,
independent auditors, incorporated by reference herein, and upon the authority
of said firm as experts in accounting and auditing.
8
<PAGE> 10
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TABLE OF CONTENTS
<TABLE>
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Page
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About this Prospectus.......................................................2
Where You Can Find More Information.........................................2
Cautionary Statement Concerning
Forward-Looking Information...........................................3
The Company.................................................................4
Risk Factors................................................................4
Low Margin Business; Economic
Sensitivity.........................................................4
We Rely on Major Customers............................................4
Acquisitions..........................................................5
Management of Growth..................................................5
Competition...........................................................5
Our Success Depends on Senior
Management and Key Employees........................................5
Volatility of Market Price for
Common Stock........................................................5
Year 2000.............................................................6
Selected Consolidated Financial Data........................................7
Outstanding Securities Covered by this
Prospectus............................................................8
Legal Matters...............................................................8
Experts.....................................................................8
</TABLE>
2,500,000 SHARES
PERFORMANCE FOOD GROUP
COMPANY
Common Stock
-------------
PROSPECTUS
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__________ , 1998
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<PAGE> 11
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Tennessee Business Corporation Act ("TBCA") provides that a
corporation may indemnify any of its directors and officers against liability
incurred in connection with a proceeding if (i) the director or officer acted in
good faith, (ii) in the case of conduct in his or her official capacity with the
corporation, the director or officer reasonably believed such conduct was in the
corporation's best interest, (iii) in all other cases, the director or officer
reasonably believed that his or her conduct was not opposed to the best interest
of the corporation, and (iv) in connection with any criminal proceeding, the
director or officer had no reasonable cause to believe that his or her conduct
was unlawful. In actions brought by or in the right of the corporation, however,
the TBCA provides that no indemnification may be made if the director or officer
was adjudged to be liable to the corporation. In cases where the director or
officer is wholly successful, on the merits or otherwise, in the defense of any
proceeding instigated because of his or her status as an officer or director of
a corporation, the TBCA mandates that the corporation indemnify the director or
officer against reasonable expenses incurred in the proceeding. The TBCA also
provides that in connection with any proceeding charging improper personal
benefit to an officer or director, no indemnification may be made if such
officer or director is adjudged liable on the basis that personal benefit was
improperly received. Notwithstanding the foregoing, the TBCA provides that a
court of competent jurisdiction, upon application, may order that an officer or
director be indemnified for reasonable expenses if, in consideration of all
relevant circumstances, the court determines that such individual is fairly and
reasonably entitled to indemnification, notwithstanding the fact that (i) such
officer or director was adjudged liable to the corporation in a proceeding by or
in right of the corporation; (ii) such officer or director was adjudged liable
on the basis that personal benefit was improperly received by him; or (iii) such
officer or director breached his duty of care to the corporation.
The Restated Charter and Bylaws of Performance Food Group Company (the
"Company") provide that to the fullest extent permitted by law no director shall
be personally liable to the Company or its shareholders for monetary damages for
breach of any fiduciary duty as a director. Under the TBCA, this provision
relieves the Company's directors from personal liability to the Company or its
shareholders for monetary damages for breach of fiduciary duty as a director,
except for liability arising from a judgment or other final adjudication
establishing (i) any breach of the director's duty of loyalty, (ii) acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, or (iii) any unlawful distributions. The Company has entered
into indemnification agreements with each of its directors and executive
officers. The Company currently has in effect an executive liability insurance
policy which provides coverage for its directors and officers.
II-1
<PAGE> 12
ITEM 21. EXHIBITS.
<TABLE>
<CAPTION>
Exhibit
Number Description
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<S> <C> <C>
3.1 -- Amended and Restated Charter of the Registrant (incorporated
by reference to the Company's Registration Statement No. 33-64930
on Form S-1)
3.2 -- Restated Bylaws of the Registrant (incorporated by reference to
the Company's Registration Statement No. 33-64930 on Form S-1)
4 -- Form of Common Stock Certificates (incorporated by reference to
the Company's Registration Statement No. 33-64930 on Form S-1)
5 -- Opinion of Bass, Berry & Sims PLC
23.1 -- Consent of KPMG Peat Marwick LLP
23.2 -- Consent of Bass, Berry & Sims PLC (included in opinion filed as
Exhibit 5)
</TABLE>
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II-2
<PAGE> 13
ITEM 22. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
(1) to file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) to include any prospectus required by Section 10(a)(3) of the
Securities Act;
(ii) to reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or decrease in the 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 end 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 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;
(2) that, for the purpose of determining any liability under the
Securities Act, 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.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (the "Exchange Act") that is incorporated by reference in
the registration statement shall be deemed to be a new registration statement
relating to the securities offered herein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
registrant pursuant to the provisions described under Item 20 above, or
otherwise, the registrant has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy as
expressed in the Securities Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
II-3
<PAGE> 14
The undersigned registrant hereby undertakes as follows: that prior to
any public reoffering of the securities registered hereunder through use of a
prospectus which is a part of this registration statement by any person or party
who is deemed to be an underwriter within the meaning of Rule 145(c), the issuer
undertakes that such reoffering prospectus will contain the information called
for by the applicable registration form with respect to reofferings by persons
who may be deemed underwriters, in addition to the information called for by the
other items of the applicable form.
The registrant undertakes that every prospectus (i) that is filed
pursuant to the paragraph immediately preceding, or (ii) that purports to meet
the requirements of Section 10(a)(3) of the Securities Act and is used in
connection with an offering of securities subject to Rule 415 will be filed as
part of an amendment to the registration statement and will not be used until
such amendment is effective, and that, for purposes of determining any liability
under the Securities Act, 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.
The undersigned registrant hereby undertakes to respond to requests for
information that is incorporated by reference into the prospectus pursuant to
Item 4, 10(b), 11 or 13 of this form, within one business day of receipt of such
request, and to send the incorporated documents by first class mail or other
equally prompt means. This includes information contained in documents filed
subsequent to the effective date of the registration statement through the date
of responding to the request.
The undersigned registrant hereby undertakes to supply by means of a
post-effective amendment all information concerning a transaction, and the
company being acquired involved therein, that was not the subject of and
included in the registration statement when it became effective.
II-4
<PAGE> 15
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant has
duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Richmond, Commonwealth of
Virginia on December 14, 1998.
PERFORMANCE FOOD GROUP COMPANY
By: /s/ Robert C. Sledd
--------------------------------------
Robert C. Sledd, Chairman
SIGNATURE PAGE AND POWER OF ATTORNEY
Know all men by these presents, that each person whose signature appears
below constitutes and appoints Robert C. Sledd and Roger L. Boeve (with full
power to each of them to act alone) as his true and lawful attorney-in-fact and
agent, with full power of substitution, for him and in his name, place and stead
in any and all capacities to sign any or all amendments or post-effective
amendments to this Registration Statement, including post-effective amendments
filed pursuant to Rule 462(b) of the Securities Act, as amended, and to file the
same with all exhibits thereto and other documents in connection therewith, with
the Securities and Exchange Commission, to sign any and all applications,
registration statements, notices or other document necessary or advisable to
comply with the applicable state securities laws, and to file the same, together
with all other documents in connection therewith, with the appropriate state
securities authorities, granting unto said attorneys-in-fact and agents or any
of them, or their or his substitute or substitutes, full power and authority to
do and perform each and every act and thing requisite and necessary to be done
in and about the premises, as fully to all intents and purposes as he might or
could do in person, thereby ratifying and confirming all that said
attorney-in-fact and agents or any of them, or their or his substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Robert C. Sledd Chairman, Chief Executive December 14, 1998
- ---------------------------- Officer and Director (Principal
Robert C. Sledd Executive Officer)
/s/ C. Michael Gray President, Chief Operating December 14, 1998
- ---------------------------- Officer and Director
C. Michael Gray
/s/ Roger L. Boeve Executive Vice President and December 14, 1998
- ---------------------------- Chief Financial Officer
Roger L. Boeve (Principal Financial Officer and
Principal Accounting Officer)
/s/ Charles E. Adair Director December 14, 1998
- ----------------------------
Charles E. Adair
/s/ Fred C. Goad Director December 14, 1998
- ----------------------------
Fred C. Goad
/s/ Timothy M. Graven Director December 14, 1998
- ----------------------------
Timothy M. Graven
/s/ John E. Stokely Director December 14, 1998
- ----------------------------
John E. Stokely
</TABLE>
II-5
<PAGE> 16
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit
Number Description
------ -----------
<S> <C> <C>
3.1 -- Amended and Restated Charter of the Registrant (incorporated
by reference to the Company's Registration Statement No.
33-64930 on Form S-1)
3.2 -- Restated Bylaws of the Registrant (incorporated by
reference to the Company's Registration Statement No.
33-64930 on Form S-1)
4 -- Form of Common Stock Certificates (incorporated by
reference to the Company's Registration Statement No.
33-64930 on Form S-1)
5 -- Opinion of Bass, Berry & Sims PLC
23.1 -- Consent of KPMG Peat Marwick LLP
23.2 -- Consent of Bass, Berry & Sims PLC (included in opinion
filed as Exhibit 5)
</TABLE>
II-6
<PAGE> 1
EXHIBIT 5
B A S S, B E R R Y & S I M S P L C
A PROFESSIONAL LIMITED LIABILITY COMPANY
ATTORNEYS AT LAW
2700 FIRST AMERICAN CENTER 1700 RIVERVIEW TOWER
NASHVILLE, TENNESSEE 37238-2700 POST OFFICE BOX 1509
TELEPHONE (615) 742-6200 KNOXVILLE, TENNESSEE 37901-1509
TELECOPIER (615) 742-6293 TELEPHONE (423) 521-6200
TELECOPIER (423) 521-6234
December 14, 1998
Performance Food Group Company
6800 Paragon Place, Suite 500
Richmond, Virginia 23230
Re: Registration Statement on Form S-4
Ladies and Gentlemen:
We have acted as your counsel in connection with your preparation of a
Registration Statement on Form S-4 (the "Registration Statement") to be filed by
you with the Securities and Exchange Commission (the "Commission") on December
14, 1998, covering 2,500,000 shares, par value $.01 per share, of common stock
(the "Common Stock") of Performance Food Group Company (the "Company").
In connection with this opinion, we have examined and relied upon such
records, documents, certificates, and other instruments as in our judgment are
necessary or appropriate in order to express the opinions hereinafter set forth
and have assumed the genuineness of all signatures, the authenticity of all
documents submitted to us as originals, and the conformity to original documents
of all documents submitted to us as certified or photostatic copies.
Based on the foregoing and such other matters as we have deemed
relevant, we are of the opinion that the shares of Common Stock to be issued by
the Company, upon authorization by the Board of Directors of the Company of the
specific acquisitions subject of the Registration Statement and, when issued and
delivered, against receipt by the Company of the agreed consideration therefor,
which consideration shall have been determined by the Board of Directors to be
adequate, will be validly issued, fully paid, and nonassessable.
We hereby consent to the reference to our law firm in the Registration
Statement under the caption "Legal Matters" and filing of this opinion with the
Commission as Exhibit 5 to the Registration Statement.
Very truly yours,
/s/ Bass, Berry & Sims PLC
<PAGE> 1
EXHIBIT 23.1
KPMG PEAT MARWICK LLP
Consent of Independent Auditors
The Board of Directors
Performance Food Group Company:
We consent to incorporation by reference in the registration statement on Form
S-4 of Performance Food Group Company of our reports dated February 9, 1998,
relating to the consolidated balance sheets of Performance Food Group Company
and subsidiaries as of December 27, 1997 and December 28, 1996, the related
consolidated statements of earnings, shareholders' equity and cash flows, and
the related financial statement schedule, for each of the fiscal years in the
three-year period ended December 27, 1997, which reports are included in the
1997 annual report on Form 10-K of Performance Food Group Company, incorporated
by references into the registration statement, and to the references to our firm
under the headings "Selected Consolidated Financial Data" and "Experts" in the
prospectus.
/s/ KPMG Peat Marwick LLP
Richmond, Virginia
December 11, 1998
