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As filed with the Securities and Exchange Commission on December 9, 1997
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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JP FOODSERVICE, INC.
(Exact Name of registrant as specified in its charter)
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DELAWARE 5141 52-1634568
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification Number)
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9830 PATUXENT WOODS DRIVE
COLUMBIA, MARYLAND 21046
(410) 312-7100
(Address, including zip code, and telephone number, including area code,
of registrant's principal executive offices)
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DAVID M. ABRAMSON
SENIOR VICE PRESIDENT AND GENERAL COUNSEL
JP FOODSERVICE, INC.
9830 PATUXENT WOODS DRIVE
COLUMBIA, MARYLAND 21046
(410) 312-7100
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
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Copy to:
JOHN B. FRISCH, ESQUIRE
MILES & STOCKBRIDGE,
A PROFESSIONAL CORPORATION
10 LIGHT STREET
BALTIMORE, MARYLAND 21202
(410) 385-3507
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon
as practicable after this Registration Statement becomes effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box: [ ]
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, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box: [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please 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(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering: [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box: [ ]
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CALCULATION OF REGISTRATION FEE
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==========================================================================================
PROPOSED PROPOSED
MAXIMUM MAXIMUM
OFFERING AGGREGATE AMOUNT OF
TITLE OF EACH CLASS OF AMOUNT TO BE PRICE PER OFFERING REGISTRATION
SECURITIES TO BE REGISTERED REGISTERED SHARE/(1)/ PRICE/(1)(2)/ FEE/(2)/
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Common Stock, par value
$.01 per share 279,268 shares $29.812 $8,325,537.61 $2,522.89
==========================================================================================
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(1) Estimated pursuant to Rule 457(c) under the Securities Act solely for the
purpose of calculating the registration fee.
(2) In accordance with Rule 457(c), the aggregate offering price and
registration fee for 279,268 shares of Common Stock is based on the average
of the high and low prices for the Registrant's Common Stock on the New
York Stock Exchange, Inc. on December 4, 1997.
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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 THE PROVISIONS OF
SECTION 8(A) OF THE SECURITIES ACT OF 1933, AS AMENDED, OR UNTIL THIS
REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE SECURITIES AND
EXCHANGE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
<PAGE>
PROSPECTUS
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SUBJECT TO COMPLETION DATED DECEMBER 9, 1997.
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor may
offers to buy be accepted prior to the time the registration statement becomes
effective. This prospectus shall not constitute an offer to sell or the
solicitation of an offer to buy nor shall there be any sale of these securities
in any state in which such offer, solicitation or sale would be unlawful prior
to registration or qualification under the securities laws of such state.
279,268 SHARES
JP FOODSERVICE, INC.
COMMON STOCK
---------------
The 279,268 shares (the "Shares") of Common Stock, par value $.01 per share
(the "Common Stock"), of JP Foodservice, Inc. (the "Company" or "JP
Foodservice") offered hereby may be offered and sold from time to time by the
holders named herein or by their permitted transferees or successors
(collectively, the "Selling Stockholders") pursuant to this Prospectus, as it
may be appropriately amended or supplemented from time to time. See "Selling
Stockholders." The Company will not receive any of the proceeds from the sale
of the Shares by the Selling Stockholders.
The Shares may be offered or sold by the Selling Stockholders from time to
time directly to purchasers or through agents, underwriters or dealers on terms
to be determined at the time of sale. See "Plan of Distribution." If required,
the names of any such agents or underwriters involved in the sale of the Shares
in respect of which this Prospectus is being delivered and the applicable
agent's commission, dealer's purchase price or underwriter's discount, if any,
will be set forth in an accompanying supplement to this Prospectus ("Prospectus
Supplement").
The Selling Stockholders and any broker-dealers, agents or underwriters
which participate in the distribution of the Shares may be deemed to be
"underwriters" within the meaning of the Securities Act of 1933, as amended (the
"Securities Act"), and any commission received by them or any profit received by
them on the resale of Shares purchased by them may be deemed to be underwriting
commissions or discounts under the Securities Act. See "Plan of Distribution."
The Common Stock is listed on the New York Stock Exchange, Inc. (the
"NYSE") under the symbol "JPF." On December 8, 1997, the last reported sale
price of the Common Stock, on the NYSE, was $30.50 per share.
SEE "RISK FACTORS" BEGINNING ON PAGE 5 FOR A DISCUSSION OF CERTAIN FACTORS
THAT SHOULD BE CONSIDERED BY PROSPECTIVE PURCHASERS OF THE COMMON STOCK OFFERED
HEREBY.
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED
UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
---------------
THE DATE OF THIS PROSPECTUS IS DECEMBER __, 1997.
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TABLE OF CONTENTS
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Available Information............................ 2
Incorporation of Certain Documents by Reference.. 3
Forward-Looking Statements....................... 4
The Company...................................... 4
Risk Factors..................................... 5
Dividend Policy.................................. 11
Use of Proceeds.................................. 11
Selling Stockholders............................. 11
Plan of Distribution............................. 14
Legal Matters.................................... 15
Experts.......................................... 15
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AVAILABLE INFORMATION
This Prospectus, which constitutes a part of a Registration Statement on
Form S-3 (herein, together with all amendments and exhibits, referred to as the
"Registration Statement") filed by the Company with the Securities and Exchange
Commission (the "Commission") under the Securities Act, omits certain of the
information set forth in the Registration Statement in accordance with the rules
and regulations of the Commission. Reference is hereby made to the Registration
Statement and to the exhibits thereto for further information with respect to
the Company and the securities offered hereby. Copies of the Registration
Statement and the exhibits thereto are on file at the offices of the Commission
and may be obtained upon payment of the prescribed fee or may be examined
without charge at the public reference facilities of the Commission described
below.
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports, proxy statements and other information with the
Commission. Such reports, proxy statements and other information filed by the
Company with the Commission may be inspected and copied at the public reference
facility maintained by the Commission at Judiciary Plaza, 450 Fifth Street,
N.W., Room 1024, Washington, D.C. 20549, and the following regional offices of
the Commission: New York Regional Office, Seven World Trade Center, 13th Floor,
New York, New York 10048; and Chicago Regional Office, Citicorp Center, 500 West
Madison Street, Suite 1400, Chicago, Illinois 60661. Copies of such material
also may be obtained from the Public Reference Section of the Commission at 450
Fifth Street, N.W., Washington, D.C. 20549, at prescribed rates. The Commission
also maintains a Web site (http://www.sec.gov) that contains reports, proxy and
information statements and other information regarding registrants such as the
Company which file electronically with the Commission. The Common Stock is
listed on the NYSE and reports, proxy statements and other information
concerning the Company may be inspected at the offices of the NYSE, 20 Broad
Street, New York, New York 10005.
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INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents or portions of documents filed by the Company
with the Commission are incorporated herein by reference: (a) the Company's
Annual Report on Form 10-K for the fiscal year ended June 28, 1997, as amended
(the "Form 10-K"); (b) the Company's Quarterly Report on Form 10-Q for the
fiscal quarter ended September 27, 1997; (c) the Company's Current Reports on
Form 8-K dated June 30, 1997, September 3, 1997, November 5, 1997 and November
17, 1997; (d) the description of the Company's Common Stock which is contained
in its Registration Statement on Form 8-A filed under the Exchange Act on
December 20, 1996, including any amendments or reports filed for the purpose of
updating such description; and (e) the description of the preferred share
purchase rights attached to the Company's Common Stock which is contained in its
Registration Statement on Form 8-A filed under the Exchange Act on December 20,
1996, including any amendments or reports filed for the purpose of updating such
description.
All reports and other documents filed by the Company with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act
subsequent to the effective date of the Registration Statement of which this
Prospectus constitutes a part and prior to the termination of this offering
shall be deemed to be incorporated by reference herein and to be a part hereof
from the date of filing of such reports and documents. Any statement contained
in a document incorporated by reference herein shall be deemed modified or
superseded for purposes of this Prospectus to the extent that a statement
contained or incorporated by reference herein modifies or supersedes such
statement. Any statement so modified or superseded shall not be deemed, except
as so modified or superseded, to constitute a part of this Prospectus.
The Company will provide without charge to each person to whom this
Prospectus is delivered a copy of any or all of such documents which are
incorporated herein by reference (other than exhibits to such documents unless
such exhibits are specifically incorporated by reference into the documents that
this Prospectus incorporates). Written or oral requests for copies should be
directed to Corporate Secretary, JP Foodservice, Inc., at the Company's
principal executive offices located at 9830 Patuxent Woods Drive, Columbia,
Maryland 21046, telephone number (410) 312-7100.
No person is authorized in connection with any offering made hereby to
give any information or to make any representation not contained or incorporated
by reference in this Prospectus, and any information or representation not
contained or incorporated herein must not be relied upon as having been
authorized by the Company. This Prospectus does not constitute an offer to
sell, or a solicitation of an offer to buy, by any person in any jurisdiction in
which it is unlawful for such person to make such offer or solicitation.
Neither the delivery of this Prospectus or any sale made hereunder shall, under
any circumstances, create any implication that there has been no change in the
affairs of JP Foodservice since the date hereof or that the information in this
Prospectus or in the documents incorporated by reference herein is correct as of
any time subsequent to the date hereof or thereof.
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FORWARD-LOOKING STATEMENTS
THIS PROSPECTUS INCLUDES FORWARD-LOOKING STATEMENTS WITHIN THE MEANING
OF SECTION 27A OF THE SECURITIES ACT AND SECTION 21E OF THE EXCHANGE ACT. ALL
STATEMENTS REGARDING JP FOODSERVICE, RYKOFF-SEXTON, INC. (A COMPANY THAT JP
FOODSERVICE EXPECTS TO ACQUIRE BY MERGER AS DESCRIBED BELOW) OR THE COMBINED
COMPANY'S EXPECTED FUTURE FINANCIAL POSITION, BUSINESS STRATEGY, COST SAVINGS
AND OPERATING SYNERGIES, PROJECTED COSTS AND PLANS, AND OBJECTIVES OF MANAGEMENT
FOR FUTURE OPERATIONS ARE FORWARD-LOOKING STATEMENTS. ALTHOUGH JP FOODSERVICE
BELIEVES THE EXPECTATIONS REFLECTED IN SUCH FORWARD-LOOKING STATEMENTS ARE BASED
ON REASONABLE ASSUMPTIONS, NO ASSURANCE CAN BE GIVEN THAT SUCH EXPECTATIONS WILL
PROVE TO HAVE BEEN CORRECT. IMPORTANT FACTORS THAT COULD CAUSE ACTUAL RESULTS
TO DIFFER MATERIALLY FROM THE EXPECTATIONS REFLECTED IN THE FORWARD-LOOKING
STATEMENTS HEREIN INCLUDE, AMONG OTHERS, THE FACTORS SET FORTH UNDER THE CAPTION
"RISK FACTORS," GENERAL ECONOMIC AND BUSINESS AND MARKET CONDITIONS, CHANGES IN
FEDERAL LAWS, DIFFICULTIES IN ACHIEVING EXPECTED COST SAVINGS AND OPERATING
SYNERGIES FROM THE MERGER DESCRIBED HEREIN, INCREASED COMPETITIVE PRESSURE IN
THE COMBINED COMPANY'S INDUSTRY, AND COSTS OR DIFFICULTIES RELATING TO THE
INTEGRATION OF THE BUSINESS OF JP FOODSERVICE AND RYKOFF-SEXTON, INC.
THE COMPANY
JP Foodservice is a leading broadline distributor of food and related
products to restaurants and other institutional foodservice establishments in
the Mid-Atlantic, Midwestern, and Northeastern regions of the United States and
in Las Vegas, Nevada. JP Foodservice ranks as the nation's fifth largest
broadline distributor based on pro forma 1996 calendar year net sales, including
the results of foodservice distribution businesses acquired by it in fiscal
1997. JP Foodservice markets and distributes from its 15 full-service
distribution centers over 30,000 national, private and signature brand items to
over 34,000 foodservice customers, including restaurants, hotels, healthcare
facilities, cafeterias and schools. This diverse customer base encompasses both
independent (or "street") and multi-unit (or "chain") businesses. JP
Foodservice's comprehensive product line provides its customers with a single
source to satisfy substantially all of their foodservice needs.
On June 30, 1997, the Company announced that it entered into an
Agreement and Plan of Merger as amended as of September 3, 1997 and November 5,
1997 (the "Merger Agreement") pursuant to which Rykoff-Sexton, Inc. ("Rykoff-
Sexton") will be merged with and into a wholly-owned subsidiary of JP
Foodservice and will become a wholly-owned subsidiary of JP Foodservice (the
"Merger"). In the Merger, each of the outstanding shares of Rykoff-Sexton
common stock will be converted into the right to receive .775 of a share of JP
Foodservice Common Stock. Outstanding options and warrants to purchase Rykoff-
Sexton common stock will be converted into the right to purchase JP Foodservice
Common Stock with adjustments made to give appropriate effect to the
aforementioned exchange ratio. The issuance of JP Foodservice Common Stock in
connection with the Merger and consummation of the Merger remain subject to the
approval of the stockholders of JP Foodservice and Rykoff-Sexton and the
stockholders of each of the corporations are expected to consider the Merger at
meetings to be convened on
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December 23, 1997. If the foregoing matters are approved by the stockholders of
JP Foodservice and Rykoff-Sexton, the Merger will become effective promptly
thereafter.
Rykoff-Sexton is a leading distributor and manufacturer of high-
quality and related non-food products for the foodservice industry throughout
the United States. Rykoff-Sexton distributes its product line of more than
40,000 items to over 100,000 foodservice customers, including restaurants,
industrial cafeterias, healthcare facilities, schools and colleges, supermarket
service delicatessen departments, lodging establishments and other segments of
the travel and leisure markets. It also offers equipment and supplies and
design and engineering services for all types of foodservice operations.
Established in 1911, Rykoff-Sexton has grown from a regional distributor to its
present position as the third largest broadline foodservice distributor in the
nation.
The principal executive offices of JP Foodservice are located at 9830
Patuxent Woods Drive, Columbia, Maryland 21046, and JP Foodservice's telephone
number is (410) 312-7100.
RISK FACTORS
In addition to the other information contained in this Prospectus,
prospective investors should consider carefully the following risk factors
relating to the Company and the Common Stock before making an investment in the
Common Stock offered hereby.
UNCERTAINTIES IN INTEGRATING BUSINESS OPERATIONS AND ACHIEVING COST SAVINGS
In determining that the Merger was in the best interests of their
respective stockholders, the JP Foodservice Board of Directors and the Rykoff-
Sexton Board of Directors considered the cost savings, operating efficiencies
and other synergies expected to result from the integration of the JP
Foodservice and Rykoff-Sexton businesses. The managements of JP Foodservice and
Rykoff-Sexton have estimated that the combination of JP Foodservice and Rykoff-
Sexton could create opportunities for operating cost savings of approximately
$14 million during the first twelve-month period following the effective time of
the Merger, $20 million during the second twelve-month period following the
effective time of the Merger and $30 million annually thereafter. These cost
savings are expected to be realized primarily through the restructuring of
operations.
The foregoing cost savings estimates were developed by JP Foodservice
and Rykoff-Sexton solely for purposes of evaluating whether or not to proceed
with the Merger, do not include non-recurring adjustments that will be recorded
in conjunction with the Merger, and should not be relied upon as an estimate of
the actual cost savings that may be achieved. These estimates are based upon
assumptions and operating synergies that are inherently uncertain, though
considered reasonable by JP Foodservice and Rykoff-Sexton, and are subject to
significant business, economic and competitive uncertainties which are difficult
to predict and often beyond the control of management. Several of the cost
savings estimates are premised on the assumption that certain levels of
efficiency presently maintained by either JP Foodservice or Rykoff-Sexton
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can be achieved by JP Foodservice following the Merger. Other estimates are
based on management's opinion as to what levels of enhanced purchasing leverage
and operating efficiencies should be achievable by an entity the size of the
combined entity.
The consolidation of functions, the integration of operations,
systems, marketing methods and procedures and the relocation of staff present
significant management challenges. There can be no assurance that such actions
will be accomplished successfully or as rapidly as currently expected.
Moreover, although the primary purpose of such actions will be to realize direct
cost savings and other operating efficiencies, there can be no assurance of the
extent to which such cost savings and efficiencies will be achieved or that
unforeseen costs and expenses or other factors will not offset the projected
cost savings in whole or in part. To the extent management of the combined
company is unable to integrate successfully the operations of the combined
company, such costs savings and efficiencies are not otherwise achieved or
achieved on a timely basis, or unforeseen costs and expenses or other factors
arise that offset cost savings, JP Foodservice's operating results would be
negatively affected.
EFFECT OF SIGNIFICANT INDEBTEDNESS ON RESULTS OF OPERATIONS AND FINANCIAL
CONDITION OF COMBINED COMPANY
Following the consummation of the Merger, JP Foodservice will have
significant indebtedness and debt service obligations. Giving effect to the
Merger, and assuming such transactions had occurred on September 27, 1997, JP
Foodservice's total indebtedness (excluding current maturities) would have been
approximately $672.4 million on such date. JP Foodservice may incur additional
indebtedness in the future, subject to certain limitations contained in the
instruments governing its indebtedness. Anticipated borrowings under a credit
facility JP Foodservice expects to obtain in connection with the Merger (the
"New Credit Facility") will result in indebtedness with lower average interest
rates for the combined entity than the Rykoff-Sexton indebtedness to be
refinanced with such borrowings, although average interest rates under the New
Credit Facility are expected to be generally higher than average interest rates
historically paid by JP Foodservice on borrowings under its existing senior bank
credit facility. In the fiscal year ended June 28, 1997, JP Foodservice' s
borrowings under its existing senior bank credit facility accrued interest at an
overall weighted average of 6.1% per annum and Rykoff-Sexton's borrowings under
its existing senior bank credit facility accrued interest at an overall weighted
average rate of 8.6% per annum. There can be no assurance as to whether, or the
definitive terms on which, the New Credit Facility actually will be available to
JP Foodservice.
Based upon the current level of operations and anticipated cost
savings, JP Foodservice believes that after the Merger its cash flow from
operations, together with borrowings under the New Credit Facility (or, if JP
Foodservice does not obtain the New Credit Facility, existing bank credit
facilities) and its other sources of liquidity, will be adequate to meet its
anticipated requirements for working capital, capital expenditures and debt
service over the next several years. There can be no assurance, however, that
the combined company's business will continue to generate cash flow at or above
the cash flow levels attained by JP Foodservice and Rykoff-Sexton in the
aggregate or that anticipated cost savings can be fully achieved. The failure
of JP
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Foodservice to generate sufficient cash flow from operations in the future could
have a material adverse effect on the results of operations and financial
condition of the combined company. If JP Foodservice is unable to generate
sufficient cash flow from operations in the future to service its debt and make
necessary capital expenditures, JP Foodservice may be required to refinance all
or a portion of its debt, sell assets or obtain additional financing. There can
be no assurance as to whether, or the terms on which, any such refinancing or
asset sales would be consummated or any additional financing could be obtained.
OFFER TO PURCHASE RYKOFF-SEXTON SENIOR SUBORDINATED NOTES
Consummation of the Merger will constitute a "change in control" of
Rykoff-Sexton as defined in the indenture (the "Indenture") pursuant to which
$130 million principal amount of Rykoff-Sexton's 8 7/8% Senior Subordinated
Notes due 2003 (the "Rykoff-Sexton Public Notes") were outstanding as of June
28, 1997. Pursuant to the Indenture, within 30 business days after the Merger
is consummated, the surviving corporation will be required to make an offer to
purchase the Rykoff-Sexton Public Notes at a purchase price equal to 101% of the
principal amount $131.3 million as of June 28, 1997), plus accrued interest from
the most recent preceding semi-annual interest payment date to the redemption
date. There can be no assurance as to the principal amount of Rykoff-Sexton
Public Notes that may be tendered in acceptance of the offer to purchase. JP
Foodservice expects to fund any payments required pursuant to the purchase offer
with borrowings under the New Credit Facility. The application of such
borrowings to fund the offer to purchase will reduce the amounts available under
the New Credit Facility or, if JP Foodservice does not obtain the New Credit
Facility, under existing bank credit facilities for working capital, capital
expenditures and other general corporate purposes. Repurchase of Rykoff-Sexton
Public Notes is not expected to have a material adverse effect on the combined
company's results of operations or financial condition.
SHARES ELIGIBLE FOR FUTURE SALE
Immediately following the Merger, certain current holders of Rykoff-
Sexton common stock who are affiliated with Merrill Lynch, Pierce, Fenner &
Smith Incorporated, an international investment banking and advisory firm and
who are "affiliates" of Rykoff-Sexton within the meaning of applicable
securities laws (the "ML Investors") will beneficially own approximately 17% of
the outstanding Common Stock. The ML Investors may not sell the Common Stock
issued to them in the Merger except pursuant to an effective registration
statement under the Securities Act covering such sale or in compliance with Rule
145 promulgated under the Securities Act or another applicable exemption from
the registration requirements of the Securities Act. The ML Investors will have
the right following the Merger, pursuant to a Registration Rights Agreement, to
require JP Foodservice, for a specified period and subject to certain
limitations and qualifications, to effect the registration under the Securities
Act of the sale of the Common Stock issued to them in the Merger in exchange for
Registrable Securities. This group of shareholders and other parties will also
have "piggyback" registration rights under the Registration Rights Agreement
with respect to the Common Stock that will be
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issued to them in the Merger. The holders of certain warrants that will be
assumed in the Merger and converted into warrants to purchase Common Stock will
be entitled to certain "demand" and "piggyback" registration rights with respect
to the Common Stock issued or issuable upon exercise of the new warrants issued
by JP Foodservice in exchange for the assumed warrants.
In addition, JP Foodservice has previously granted certain "shelf" and
"piggyback" registration rights with respect to Common Stock issued in
connection with the acquisition of other foodservice businesses. Such
registration rights are subject to certain notice requirements, timing
restrictions and volume limitations which may be imposed by the underwriters of
an offering in which such persons are participants.
No predictions can be made as to the effect, if any, that market sales
of Common Stock by stockholders pursuant to such registration rights, or the
availability of such shares for such future sales, will have on the market price
of Common Stock prevailing from time to time. Sales of substantial amounts of
Common Stock, or the perception that such sales could occur, could adversely
affect prevailing market prices for the Common Stock and could impair JP
Foodservice's future ability to raise capital through an offering of its equity
securities.
POTENTIAL INFLUENCE BY AND RELATIONSHIP WITH ML INVESTORS
Immediately following the Merger, the 17% of outstanding Common Stock
beneficially owned by the ML Investors is expected to constitute the largest
percentage of such shares beneficially owned by any person or group.
The Merger Agreement entitles the ML Investors to designate two
nominees to the JP Foodservice Board of Directors. In addition, pursuant to a
Standstill Agreement, the ML Investors have agreed to vote the Rykoff-Sexton
common stock and other voting securities owned by them and their affiliates for
Rykoff-Sexton's nominees to the Rykoff-Sexton Board of Directors, in accordance
with the recommendation of the Nominating Committee of the Rykoff-Sexton Board
of Directors, subject to certain exceptions. The ML Investors also have agreed
that neither they nor any of their affiliates will (subject to certain
exceptions) participate in proxy solicitations, acquire additional Rykoff-Sexton
common stock or otherwise engage in transactions, or take actions involving a
change of control of Rykoff-Sexton. The Rykoff-Sexton common stock and other
voting securities owned by the ML Investors are subject to certain restrictions
on sale or transfer. The ML Investors are prohibited from soliciting, offering,
seeking to effect and negotiating with any person with respect to sales or
transfers of Rykoff-Sexton common stock and other voting securities held by the
ML Investors unless otherwise permitted by the Standstill Agreement. From and
after the effective time of the Merger, the Standstill Agreement will be for the
benefit of, and will be enforceable by, JP Foodservice to the same extent and in
the same manner as the Standstill Agreement benefits and is enforceable by
Rykoff-Sexton prior to the Merger.
The Common Stock to be received by the ML Investors in the Merger will
constitute a significant block of the voting power of the Common Stock. The
voting of such shares as
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required by the Standstill Agreement will make it easier for the JP Foodservice
Board of Directors to obtain the approval of JP Foodservice stockholders for the
election of JP Foodservice's nominees to the JP Foodservice Board of Directors.
Such a voting block also could facilitate or impede the approval of any other
matter requiring approval of JP Foodservice stockholders, including a merger,
consolidation or other business combination involving JP Foodservice, or
discourage a potential acquiror from making a tender offer or otherwise attempt
to obtain control of JP Foodservice.
FACTORS RELATING TO FUTURE ACQUISITIONS
JP Foodservice's growth strategy emphasizes supplementing internal
expansion with acquisitions, and a significant portion of the growth of JP
Foodservice's revenues in fiscal year 1997 resulted from acquisitions. There
can be no assurance that JP Foodservice will successfully identify suitable
acquisition candidates, complete acquisitions, integrate acquired operations
into its existing operations or expand into new markets in the future. Further,
there can be no assurance that acquisitions will not have an adverse effect upon
JP Foodservice's operating results, particularly in periods following the
consummation of such transactions, during which the operations of the acquired
businesses are being integrated into JP Foodservice's operations. Once
integrated, acquired operations may not achieve levels of net sales or
profitability comparable to those achieved by JP Foodservice's existing
operations, or otherwise perform as expected. There can be no assurance that,
following the Merger, JP Foodservice will be able to increase its revenues or
earnings through future acquisitions at the same rates it achieved through the
acquisitions it completed in fiscal 1997. Management may determine that it is
necessary or desirable to obtain financing for such acquisitions through
additional bank borrowings or the issuance of additional debt or equity
securities. Debt financing of any such acquisition could increase the leverage
of JP Foodservice and will be subject to restrictions contained in the New
Credit Facility (or, if JP Foodservice does not obtain the New Credit Facility,
to restrictions contained in existing bank credit facilities) and other
agreements relating to JP Foodservice's indebtedness. Equity financing of any
such acquisition may dilute the ownership of JP Foodservice's stockholders.
There can be no assurance that JP Foodservice will be able to obtain financing
on acceptable terms.
LOW MARGIN BUSINESS; ECONOMIC SENSITIVITY
The foodservice distribution industry is characterized by relatively
high inventory turnover with relatively low profit margins. A significant
portion of the Company's sales are made at prices that are based on product cost
plus a percentage markup. As a result, the Company's profit levels may be
negatively affected during periods of food price deflation, even though the
Company's gross profit percentage may remain relatively constant.
The foodservice industry is sensitive to national and regional
economic conditions, and the demand for foodservice products supplied by the
Company has been adversely affected in past years by economic downturns. The
Company's operating results also are particularly sensitive
9
<PAGE>
to, and may be adversely affected by, difficulties with the collectability of
accounts receivable, inventory control, competitive price pressures, severe
weather conditions and unexpected increases in fuel or other transportation-
related costs. Although these factors generally have not had a material adverse
impact on the Company's past operations, there can be no assurance that one or
more of such factors will not adversely affect future operating results.
COMPETITION
The Company operates in highly competitive markets, and its future
success will depend in large part on its ability to provide superior service and
high-quality products at competitive prices. The Company encounters competition
from a variety of sources, including specialty and system foodservice
distributors and other broadline distributors. Some of the Company's
competitors have substantially greater financial and other resources than the
Company.
DEPENDENCE ON SENIOR MANAGEMENT
The Company's success is largely dependent on the skills, experience
and efforts of its senior management. The loss of the services of one or more
of the Company's senior management could have a material adverse effect on the
Company's business and development. To date, the Company generally has been
successful in retaining the services of its senior management.
PROVISIONS WITH POSSIBLE ANTI-TAKEOVER EFFECTS
The Company's Certificate of Incorporation and By-Laws contain
provisions that may have the effect of discouraging certain transactions
involving an actual or threatened change of control of the Company. These
provisions include a requirement that the Board of Directors be divided into
three classes with approximately one-third of the Board to be elected each year.
The classification of directors has the effect of making it more difficult for
stockholders to change the composition of the Board. In addition, the Board of
Directors of the Company has the authority to issue up to 5,000,000 shares of
preferred stock in one or more series and to fix the powers, preferences and
rights of any such series without stockholder approval. The ability to issue
preferred stock could have the effect of discouraging unsolicited acquisition
proposals or making it more difficult for a third party to gain control of the
Company, or otherwise could adversely affect the market price of the Common
Stock. In February 1996, the Company adopted a shareholder rights plan under
which preferred share purchase rights, which are attached to the Common Stock,
generally will be triggered upon the acquisition (or certain actions that would
result in the acquisition) of 10% or more of the Common Stock by any person or
group. Institutional investors eligible to report their ownership of the Common
Stock on Schedule 13G under the Exchange Act may acquire up to 15% of the Common
Stock without triggering such rights.
10
<PAGE>
VOLATILITY OF MARKET PRICE FOR COMMON STOCK
From time to time, there may be significant volatility in the market
price for the Common Stock. Quarterly operating results of the Company or other
distributors of food and related goods, changes in general conditions in the
economy, the financial markets or the food distribution or foodservice
industries, announcement of proposed acquisitions and failure to complete
announced acquisitions, unusual weather conditions or other developments
affecting the Company or its competitors could cause the market price of the
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.
DIVIDEND POLICY
JP Foodservice has never paid cash dividends on the Common Stock and
does not anticipate declaring or paying cash dividends for the foreseeable
future following the Merger. Financial covenants and other restrictions
contained in existing bank credit facilities and JP Foodservice's outstanding
senior notes currently require, and the New Credit Facility will require, JP
Foodservice to meet certain financial tests and such agreements and the
Indenture may restrict its ability to pay cash dividends.
USE OF PROCEEDS
All of the Shares offered hereby are being sold by the Selling
Stockholders. The Company will not receive any of the proceeds from the sale of
the Shares. The Company will pay certain expenses relating to this offering,
estimated to be approximately $15,000. See "Selling Stockholders."
SELLING STOCKHOLDERS
The following table sets forth, as of December 5, 1997, certain
information with respect to the Selling Stockholders, including the names of
each Selling Stockholder and the number of Shares being offered by each Selling
Stockholder hereby. None of the Selling Stockholders own shares that represent
one percent or more of the Company's outstanding shares of Common Stock. The
Selling Stockholders include former stockholders of the Mazo-Lerch Company
("Mazo-Lerch") and their permitted transferees and successors. The Company
issued the Shares to the Selling Stockholders in consideration for its
acquisition of Mazo-Lerch in the fourth quarter of fiscal 1997.
11
<PAGE>
<TABLE>
<CAPTION>
NAME AND ADDRESS OF SHARES BENEFICIALLY SHARES SHARES BENEFICIALLY
BENEFICIAL OWNER WONED PRIOR TO OFFERING OFFERED OWNED AFTER OFFERING
-------------------- ------------------------- ------- --------------------
<S> <C> <C> <C>
Julie Ann Bryant 5,060 5,060 0
Marshelle Elaine Burgess 5,060 5,060 0
Joanne Marie Burns 5,060 5,060 0
Alan David Lerch 5,060 5,060 0
Alida Ann Lerch 5,700 5,700 0
Diana Susan Lerch 5,700 5,700 0
Edna L. Lerch 5,818 5,818 0
Gary D. Lerch 15,809 15,809 0
Howard D. Lerch 2,009 2,009 0
Howard D. Lerch, Jr., Trustee 52,941 52,941 0
The Howard D. Lerch, Jr.
Revocable Trust
J.J. Bernard Lerch, III 16,186 16,186 0
Katherine Lee Lerch 9,685 9,685 0
Linda Kathleen Lerch 5,700 5,700 0
Robert J. Lerch 42,996 42,996 0
Robert J. Lerch, Custodian 9,685 9,685 0
for Christine Lorraine Lerch
Ryan Walter Lerch 9,685 9,685 0
William N. Lerch, Sr. 56,874 56,874 0
William Nelson Lerch, Jr. 5,060 5,060 0
Alice Payne, Trustee 5,060 5,060 0
The David Henry Payne Trust
Jennifer C. Payne 5,060 5,060 0
Nancy Lynn Payne 5,060 5,060 0
</TABLE>
Robert J. Lerch served as the President of Mazo-Lerch prior to the
time it was acquired by the Company and Howard D. Lerch and William N. Lerch and
J.J. Bernard Lerch served as Vice Presidents. Each of the foregoing persons is
presently employed as a branch-level manager by the Company.
12
<PAGE>
Also, the Company leases certain facilities from the Lerch Brothers
Corporation, a corporation which is owned by certain of the Selling
Stockholders. The Company pays aggregate annual lease payments of approximately
$400,000 to the Lerch Brothers Corporation in respect of these facilities. In
connection with the Mazo-Lerch acquisition, the Company also agreed to issue the
Selling Stockholders additional shares of Common Stock if the Company sells a
parcel of real estate it acquired in the transaction to an unaffiliated third
party at a price above a certain level. In no event will the Company be
required to issue Common Stock valued at more than $3.0 million in the aggregate
to the Selling Stockholders in connection with that transaction.
The Shares have been registered under the Securities Act and are being
offered hereby pursuant to registration rights granted by the Company to the
Selling Stockholders in connection with its acquisition of Mazo-Lerch. Under
its registration rights agreement with the Selling Stockholders, the Company is
required to bear the expenses relating to this offering, excluding any
underwriting discounts or commissions, stock transfer taxes and fees of legal
counsel to the Selling Stockholders.
PLAN OF DISTRIBUTION
All or part of the Shares may be offered by the Selling Stockholders
from time to time in transactions in the NYSE, in privately negotiated
transactions, through the writing of options on the Shares or a combination of
such methods of sale, at fixed prices that may be changed, at market prices
prevailing at the time of sale, at prices related to such prevailing market
prices or at negotiated prices. The methods by which the Shares may be sold or
distributed may include, but not be limited to, the following: (a) a cross or
block trade in which the broker or dealer so engaged will attempt to sell the
Shares as agent but may position and resell a portion of the block as principal
to facilitate the transaction; (b) purchases by a broker or dealer as principal
and resale by such broker or dealer for its account; (c) an exchange
distribution in accordance with the rules of such exchange; (d) ordinary
brokerage transactions and transactions in which the broker solicits purchasers;
(e) privately negotiated transactions; (f) short sales or borrowings, returns
and reborrowings of the Shares pursuant to stock loan agreements to settle short
sales; (g) delivery in connection with the issuance of securities by issuers,
other than the Company, that are exchangeable for (whether optional or
mandatory), or payable in, such Shares (whether such securities are listed on a
national securities exchange or otherwise) or pursuant to which such Shares may
be distributed; and (h) a combination of any such methods of sale or
distribution. In effecting sales, brokers or dealers engaged by the Selling
Stockholders may arrange for other brokers or dealers to participate. Brokers
or dealers may receive commissions or discounts from the Selling Stockholders or
from the purchasers in amounts to be negotiated immediately prior to the sale.
The Selling Stockholders may also sell such shares in accordance with Rule 144
under the Securities Act. If Shares are sold in an underwritten offering, the
Shares may be acquired by the underwriters for their own account and may be
further resold from time to time in one or more transactions, including
negotiated transactions, at a fixed public offering price or at varying prices
determined at the time of sale. The names of the underwriters with respect to
any such offering and the terms of the transactions, including any underwriting
discounts, concessions or
13
<PAGE>
commissions and other items constituting compensation of the underwriters and
broker-dealers, if any, will be set forth in a Prospectus Supplement relating to
such offering. Any public offering price and any discounts, concessions or
commissions allowed or reallowed or paid to broker-dealers may be changed from
time to time. Unless otherwise set forth in a Prospectus Supplement, the
obligations of the underwriters to purchase the Shares will be subject to
certain conditions precedent and the underwriters will be obligated to purchase
all the Shares specified in such Prospectus Supplement if any such Shares are
purchased. This Prospectus also may be used by donees of the Selling
Stockholders or by other persons acquiring Shares, including brokers who borrow
the Shares to settle short sales of shares of the Common Stock, and who wish to
offer and sell such Shares under circumstances requiring or making desirable its
use.
From time to time the Selling Stockholders may engage in short sales,
short sales against the box, puts and calls and other transactions in securities
of the Company or derivatives thereof, and may sell and deliver the shares in
connection therewith. From time to time the Selling Stockholders may pledge
their Shares pursuant to the margin provisions of their respective customer
agreements with their respective brokers or otherwise. Upon a default by a
Selling Stockholder, the broker or pledgees may offer and sell the pledged
shares of Common Stock from time to time.
None of the proceeds from the sales of the Shares by the Selling
Stockholders will be received by the Company. The Company has agreed to bear
certain expenses in connection with the registration of the Shares being offered
by the Selling Stockholders. See "Selling Stockholders." The Company has
agreed to indemnify the Selling Stockholders and any underwriters, brokers,
dealers or agents (and their respective controlling persons) against certain
liabilities, including certain liabilities under the Securities Act.
The Selling Stockholders and any broker-dealers who act in connection
with the sale of Shares hereunder may be deemed to be "underwriters" as that
term is defined in the Securities Act, and any commissions received by them and
profit on any resale of the Shares as principal might be deemed to be
underwriting discounts and commissions under the Securities Act.
LEGAL MATTERS
The validity of the Common Stock offered hereby will be passed upon
for the Company by Miles & Stockbridge, a Professional Corporation.
EXPERTS
The consolidated financial statements of JP Foodservice as of June 28,
1997 and for the year then ended incorporated by reference in this Prospectus
have been incorporated by reference herein and in the registration statement in
reliance on the report of KPMG Peat Marwick LLP, independent certified public
accountants, incorporated herein by reference and upon the authority of such
firm as experts in auditing and accounting.
14
<PAGE>
The consolidated financial statements of JP Foodservice as of June 29,
1996 and for each of the two years in the period ended June 29, 1996
incorporated by reference in this Prospectus have been so incorporated in
reliance on the report of Price Waterhouse LLP, independent public accountants,
given on the authority of said firm as experts in auditing and accounting.
The combined financial statements of Valley Industries, Inc. and
Subsidiaries and Z Leasing Company (a General Partnership) as of January 31,
1996 and for each of the years in the two-year period ended January 31, 1996
incorporated by reference in this Prospectus have been incorporated by reference
herein and in the registration statement in reliance upon the report of KPMG
Peat Marwick LLP, independent certified public accountants, incorporated herein
by reference and upon the authority of such firm as experts in accounting and
auditing.
15
<PAGE>
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the costs and expenses, other than
underwriting discounts and commissions, payable in connection with the sale and
distribution of the securities being registered. All amounts except the
Securities and Exchange Commission registration fee are estimated.
<TABLE>
<CAPTION>
ITEM AMOUNT
- ---- -------
<S> <C>
Registration fee................... $ 2,523
Blue Sky fees and expenses......... - 0 -
Printing and engraving expenses.... - 0 -
Legal fees and expenses............ 7,500
Accounting fees and expenses....... 7,500
Transfer Agent and Registrar fees.. - 0 -
Miscellaneous...................... - 0 -
-------
Total $17,523
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Reference is made to the provisions of Article XII of the registrant's
Restated Certificate of Incorporation, as amended, filed as Exhibit 3.1 hereto
and the provisions of Article XII of the registrant's Amended and Restated
Bylaws filed as Exhibit 3.2 hereto.
The registrant is a Delaware corporation, subject to the applicable
indemnification provisions of the General Corporation Law of the State of
Delaware (the "DGCL"). Section 145 of the DGCL provides for the
indemnification, under certain circumstances, of any person in connection with
any action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than derivative actions), brought or threatened involving
such persons because of such person's service in any such capacity with respect
to another corporation or other entity at the request of such corporation.
The registrant's Amended and Restated By-Laws provide for the
indemnification of the officers and directors of the registrant to the fullest
extent permitted by the DGCL. Article XII of the By-Laws provides that each
person who was or is made a party to (or is threatened to be made a party to)
any civil or criminal action, suit or proceeding by reason of the fact that such
person is or was a director or officer of the registrant shall be indemnified
and held harmless by the registrant to the fullest extent authorized by the DGCL
against all expense, liability and loss (including, without limitation,
attorneys' fees) incurred by such person in connection therewith, if such person
acted in good faith and in a manner he or she reasonably believed to be or not
II-1
<PAGE>
opposed to the best interests of the registrant and had no reason to believe
that his or her conduct was illegal.
Article XII of the registrant's Restated Certificate of Incorporation
provides that, to the fullest extent permitted by the DGCL, the registrant's
directors will not be personally liable to the registrant or its stockholders
for monetary damages resulting from a breach of their fiduciary duties as
directors. However, nothing contained in such Article XII shall eliminate or
limit the liability of directors (i) for any breach of the director's duty of
loyalty to the registrant or its stockholders, (ii) for acts or omissions not in
good faith or which involve intentional misconduct or a knowing violation of the
law, (iii) under Section 174 of the DGCL or (iv) for any transaction from which
the director derived an improper personal benefit.
The registrant maintains directors and officers liability insurance, which
covers directors and officers of the registrant against certain claims or
liabilities arising out of the performance of their duties.
In the registration rights agreement with the Company pursuant to which the
securities offered hereby are being registered, the Selling Stockholders have
agreed to indemnify the registrant, its directors, officers and agents and each
person, if any, who controls the registrant against certain liabilities,
including certain liabilities under the Securities Act.
ITEM 16: EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
(a) Exhibits
The following Exhibits are filed herewith or incorporated herein by
reference:
3.1 Restated Certificate of Incorporation of the Company
(incorporated by reference to Exhibit 3.1 to the Company's
Registration Statement on Form S-3 (Commission File No. 333-
14039)).
3.2 Amended and Restated By-Laws of the Company (incorporated by
reference to the Company's Form 10-K for the fiscal year ended
June 28, 1997).
4.1 Specimen certificate representing common stock, par value $.01
per share, of the Company (incorporated by reference to Exhibit
4.1 to the Company's Registration Statement on Form S-3
(Commission File No. 333-27275)).
4.2 Rights Agreement, dated as of February 19, 1996, between JP
Foodservice, Inc. and The Bank of New York, as Rights Agent (the
"Rights Agreement") (incorporated by reference to Exhibit 1 of
the Company's Registration Statement on Form 8-A dated February
22, 1996).
II-2
<PAGE>
4.3 Amendment No. 1 to Rights Agreement, dated as of May 17, 1996
(incorporated by reference to Exhibit 10.26 to Amendment No. 1 to
the Company's Registration Statement on Form S-3 (Commission File
No. 333-07321)).
4.4 Amendment No. 2 to Rights Agreement, dated as of September 26,
1996 (incorporated by reference to Exhibit 10.1 to Amendment No.
2 to the Company's Registration Statement on Form S-3 (Commission
File No. 333-14039)).
4.5 Amendment No. 3 to Rights Agreement, dated as of June 30, 1997
(incorporated by reference to Exhibit 4.1 to the Company's
Current Report on Form 8-K for reportable event dated June 30,
1997).
4.6 Registration Rights Agreement dated May 17, 1997 by Rykoff-
Sexton, Inc. and the other signatories listed on the signature
pages thereto (incorporated by reference to Rykoff-Sexton, Inc.'s
Annual Report on Form 10-K for the fiscal year ended April 27,
1996).
4.7 Standstill Agreement dated May 17, 1996 by Rykoff-Sexton, Inc.
and the other signatories listed on the signature pages thereto
(incorporated by reference to Rykoff-Sexton, Inc.'s Annual Report
on Form 10-K for the fiscal year ended April 27, 1996).
5.1 Opinion of Miles & Stockbridge, a Professional Corporation,
counsel to the Company, regarding the validity of the securities
being issued.
23.1 Consent of Price Waterhouse LLP, Independent Accountants.
23.2 Consents of KPMG Peat Marwick LLP, Independent Accountants.
23.3 Consent of Miles & Stockbridge (contained in Exhibit 5.1).
24 Powers of Attorney.
(b) Financial Statement Schedules
Either not applicable or shown in the financial statements or notes
thereto.
ITEM 17. UNDERTAKINGS
The undersigned Registrant hereby undertakes:
II-3
<PAGE>
(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, as amended (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;
(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, 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.
(4) For purposes of determining any liability under the Securities Act, the
information omitted from the form of Prospectus filed as part of this
Registration Statement in reliance upon Rule 430A and contained in a form of
Prospectus filed by Registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under
the Securities Act shall be deemed to be part of this Registration Statement as
of the time it was declared effective.
(5) For purposes of determining any liability under the Securities Act,
each filing of the registrant's annual report pursuant to Section 13(a) or 15(d)
of the Exchange Act (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of 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 therein, 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 as to directors, officers, and controlling persons of the
Registrant pursuant to the Delaware General Corporation Law, the Restated
Certificate of Incorporation or the Amended and Restated By-Laws of Registrant,
indemnification agreements entered into between Registrant and its officers and
directors, or otherwise, Registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public policy
as expressed in the Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment by
Registrant of expenses incurred or paid by a director, officer, or controlling
person of Registrant in the successful defense of any action, suit or
II-4
<PAGE>
proceeding) is asserted by such director, officer, or controlling person in
connection with the securities being registered, 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 Act and will
be governed by the final adjudication of such issue.
II-5
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Columbia, State of Maryland, on December 9, 1997.
JP FOODSERVICE, INC.
By: *
-------------------------------------
James L. Miller
President 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 on the date indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
* Chairman of the Board, President December 9, 1997
- --------------------- and Chief Executive Officer
James L. Miller (Principal Executive Officer)
* Director, Senior Vice President December 9, 1997
- --------------------- and Chief Financial Officer
Lewis Hay, III (Principal Financial Officer)
* Vice President - Finance December 9, 1997
- --------------------- (Principal Accounting Officer)
George T. Megas
* Director December 9, 1997
- ---------------------
Michael J. Drabb
/s/ David M. Abramson Director, Senior Vice President December 9, 1997
- --------------------- and General Counsel
David M. Abramson
* Director December 9, 1997
- ---------------------
Eric E. Glass
</TABLE>
II-6
<PAGE>
<TABLE>
<S> <C> <C>
* Director, Senior Vice President December 9, 1997
- ------------------------ Sales, Marketing and Procurement
Mark P. Kaiser
* Director December 9, 1997
- ------------------------
Paul I. Latta
* Director December 9, 1997
- ------------------------
Dean R. Silverman
* Director December 9, 1997
- ------------------------
Jeffrey D. Serkes
*By:/s/ David M. Abramson December 9, 1997
---------------------
David M. Abramson
(Attorney-in-Fact)**
</TABLE>
- ----------------
**By authority of Powers of Attorney filed with this Registration Statement on
Form S-3.
II-7
<PAGE>
INDEX TO EXHIBITS
EXHIBIT
NUMBER EXHIBITS
3.1 Restated Certificate of Incorporation of the Company (incorporated by
reference to Exhibit 3.1 to the Company's Registration Statement on
Form S-3 (Commission File No. 333-14039)).
3.2 Amended and Restated By-Laws of the Company (incorporated by reference
to the Company's Form 10-K for the fiscal year ended June 28, 1997).
4.1 Specimen certificate representing common stock, par value $.01 per
share, of the Company (incorporated by reference to Exhibit 4.1 to the
Company's Registration Statement on Form S-3 (Commission File No. 333-
27275)).
4.2 Rights Agreement, dated as of February 19, 1996, between JP
Foodservice, Inc. and The Bank of New York, as Rights Agent (the
"Rights Agreement") (incorporated by reference to Exhibit 1 of the
Company's Registration Statement on Form 8-A dated February 22, 1996).
4.3 Amendment No. 1 to Rights Agreement, dated as of May 17, 1996
(incorporated by reference to Exhibit 10.26 to Amendment No. 1 to the
Company's Registration Statement on Form S-3 (Commission File No. 333-
07321)).
4.4 Amendment No. 2 to Rights Agreement, dated as of September 26, 1996
(incorporated by reference to Exhibit 10.1 to Amendment No. 2 to the
Company's Registration Statement on Form S-3 (Commission File No. 333-
14039)).
4.5 Amendment No. 3 to Rights Agreement, dated as of June 30, 1997
(incorporated by reference to Exhibit 4.1 to the Company's Current
Report on Form 8-K for reportable event dated June 30, 1997).
4.6 Registration Rights Agreement dated May 17, 1997 by Rykoff-Sexton, Inc.
and the other signatories listed on the signature pages thereto
(incorporated by reference to Rykoff-Sexton, Inc.'s Annual Report on
Form 10-K for the fiscal year ended April 27, 1996).
4.7 Standstill Agreement dated May 17, 1996 by Rykoff-Sexton, Inc. and the
other signatories listed on the signature pages thereto (incorporated
by reference to Rykoff-Sexton, Inc.'s Annual Report on Form 10-K for
the fiscal year ended April 27, 1996).
<PAGE>
5.1 Opinion of Miles & Stockbridge, a Professional Corporation, counsel to
Company, regarding the validity of the securities being issued.
23.1 Consent of Price Waterhouse LLP, Independent Accountants.
23.2 Consents of KPMG Peat Marwick LLP, Independent Accountants.
23.3 Consent of Miles & Stockbridge (contained in exhibit 5.1).
24 Powers of Attorney.
<PAGE>
EXHIBIT 5.1
December 9, 1997
JP Foodservice, Inc.
9830 Patuxent Woods Drive
Columbia, Maryland 21046
Ladies and Gentlemen:
In connection with the registration under the Securities Act of 1933, as
amended (the "Act"), of 279,268 shares of common stock (the "Common Stock") of
JP Foodservice, Inc., a Delaware corporation, we have examined such corporate
records, certificates and documents as we deemed necessary for the purpose of
this opinion. Based on that examination, we advise you that in our opinion the
Common Stock has been duly and validly authorized and, when issued upon the
terms set forth in the Registration Statement filed with the Securities and
Exchange Commission (the "Commission"), will be legally issued, fully paid and
nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to us under the heading "Legal
Matters" in the Prospectus. In giving our consent, we do not thereby admit that
we are in the category of persons whose consent is required under Section 7 of
the Act or the rules and regulations of the Commission thereunder.
Very truly yours,
Miles & Stockbridge,
a Professional Corporation
By: /s/ John B. Frisch
--------------------------------
Principal
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement on Form S-3 of our report dated
August 2, 1996, except as to Note 16, which is as of September 10, 1996 and
except as to the pooling of interests with Valley Industries, Inc. and with
Squeri Foods, Inc. which is as of November 14, 1996, which appears on page F-2
of JP Foodservice, Inc.'s Annual Report on Form 10-K for the year ended June 28,
1997. We also consent to the references to us under the heading "Experts" in
such Prospectus.
PRICE WATERHOUSE LLP
Linthicum, Maryland
December 9, 1997
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors
JP Foodservice, Inc.:
We consent to the incorporation by reference in the registration statement of JP
Foodservice, Inc. on Form S-3 of our report dated August 11, 1997, with respect
to the consolidated balance sheet of JP Foodservice, Inc. and Subsidiaries as of
June 28, 1997 and the related consolidated statements of operations,
stockholders' equity and cash flows for the year then ended, which report
appears in JP Foodservice's Annual Report on Form 10-K for the fiscal year ended
June 28, 1997 and to the reference to our firm under the heading "Experts" in
such registration statement.
KPMG PEAT MARWICK LLP
Baltimore, Maryland
December 8, 1997
<PAGE>
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors
Valley Industries, Inc. and
Z Leasing Company:
We consent to the incorporation by reference in the registration statement of JP
Foodservice, Inc. on Form S-3 of our report dated June 17, 1996, with respect to
the combined balance sheets of Valley Industries, Inc. and Subsidiaries and Z
Leasing Company (A General Partnership) as of January 31, 1996 and the related
combined statements of earnings, stockholders' and partners' equity, and cash
flows for each of the years in the two-year period ended January 31, 1996, which
report appears in JP Foodservice's Annual Report on Form 10-K for the fiscal
year ended June 28, 1997 and to the reference to our firm under the heading
"Experts" in such registration statement.
KPMG PEAT MARWICK LLP
Baltimore, Maryland
December 8, 1997
<PAGE>
EXHIBIT 24
POWER OF ATTORNEY
We, the undersigned Officers and Directors of JP Foodservice, Inc. (the
"Corporation") hereby constitute and appoint James L. Miller, Lewis Hay, III and
David M. Abramson, and each of them, with power of substitution, our true and
lawful attorneys with full power to sign for us, in our names and in the
capacities indicated below, a registration statement on Form S-3 (or other
applicable form), and all amendments thereto (including post-effective
amendments), for the purpose of registering under the Securities Act of 1933 up
to 279,268 shares of the Corporation's Common Stock which may be sold by selling
stockholders for sale to the public.
Signature Title Date
--------- ----- ----
/s/ James L. Miller
- --------------------- Chairman of the Board, December 3, 1997
James L. Miller President and Chief
Executive Officer
(Principal Executive
Officer)
/s/ Lewis Hay, III
- --------------------- Director, Senior Vice December 3, 1997
Lewis Hay, III President and Chief
Financial Officer
(Principal Financial
Officer)
/s/ George T. Megas
- --------------------- Vice President - Finance December 3, 1997
George T. Megas (Principal Accounting
Officer)
/s/ Michael J. Drabb
- --------------------- Director December 3, 1997
Michael J. Drabb
/s/ David M. Abramson
- --------------------- Director December 3, 1997
David M. Abramson
<PAGE>
/s/ Eric E. Glass
- --------------------- Director December 3, 1997
Eric E. Glass
/s/ Mark P. Kaiser
- --------------------- Director December 3, 1997
Mark P. Kaiser
/s/ Paul I. Latta
- --------------------- Director December 3, 1997
Paul I. Latta
/s/ Dean R. Silverman
- --------------------- Director December 2, 1997
Dean R. Silverman
/s/ Jeffrey D. Serkes
- --------------------- Director December 3, 1997
Jeffrey D. Serkes
