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As filed with the Securities and Exchange Commission on March 9, 1998
Registration No. 333-41795
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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PRE-EFFECTIVE AMENDMENT
NO.1 TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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U.S. FOODSERVICE
(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
EXECUTIVE VICE PRESIDENT AND GENERAL COUNSEL
U.S. FOODSERVICE
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 P.C.
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/(3)/
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Common Stock, par value
$.01 per share 337,239 shares $32.344 $10,200,551.63 $568.18
==========================================================================================
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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(a) this amount represents the sum of (a)
279,268 shares of Common Stock multiplied by $29.812 (the price per share
at which the registration fee was calculated for purposes of the original
filing) and (b) 57,971 additional shares (which are being included pursuant
to this amendment) multiplied by $32.344, the average of the high and low
prices for the Registrant's Common Stock on the New York Stock Exchange,
Inc. on March 4, 1998.
(3) Represents the difference between the total registration fee of $3,091.07
and $2,522.89 previously paid with the original filing.
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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.
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PROSPECTUS
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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.
337,239 SHARES
U.S. FOODSERVICE
COMMON STOCK
---------------
The 337,239 shares (the "Shares") of Common Stock, par value $.01 per share
(the "U.S. Foodservice Common Shares"), of U.S. Foodservice (the "Company" or
"U.S. 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, brokers 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 U.S. Foodservice Common Shares are listed on the New York Stock
Exchange, Inc. (the "NYSE") under the symbol "UFS." On March 6, 1998, the
last reported sale price of the U.S. Foodservice Common Shares, on the NYSE, was
$34.25 per share.
SEE "RISK FACTORS" BEGINNING ON PAGE 6 FOR A DISCUSSION OF CERTAIN FACTORS
THAT SHOULD BE CONSIDERED BY PROSPECTIVE PURCHASERS OF THE U.S. FOODSERVICE
COMMON SHARES 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 MARCH 10, 1998.
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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...................................... 5
Risk Factors..................................... 6
Dividend Policy.................................. 12
Use of Proceeds.................................. 23
Selling Stockholders............................. 23
Plan of Distribution............................. 25
Legal Matters.................................... 26
Experts.......................................... 26
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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 U.S. Foodservice
Common Shares are 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 pursuant to the Exchange Act 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
Reports on Form 10-Q for the fiscal quarters ended September 27, 1997 and
December 27, 1997; (c) the Company's Current Reports on Form 8-K dated June 30,
1997, September 3, 1997, November 5, 1997, November 17, 1997, December 23, 1997,
as amended, January 22, 1998, February 25, 1998, and February 26, 1998; (d) the
description of the U.S. Foodservice Common Shares 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 U.S. Foodservice Common Shares 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, U.S. Foodservice, 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 U.S. 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, INCLUDING ANY DOCUMENTS THAT ARE INCORPORATED BY
REFERENCE HEREIN AS SET FORTH IN "INCORPORATION OF CERTAIN DOCUMENTS BY
REFERENCE," INCLUDES FORWARD-LOOKING STATEMENTS WITHIN THE MEANING OF SECTION
27A OF THE SECURITIES ACT AND SECTION 21E OF THE EXCHANGE ACT. ALL STATEMENTS
REGARDING U.S. FOODSERVICE, RYKOFF-SEXTON, INC. 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 U.S. 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 U.S. FOODSERVICE AND RYKOFF-SEXTON, INC.
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THE COMPANY
GENERAL
As a result of the Merger described below, the Company, which conducts
operations as U.S. Foodservice, is the nation's second largest broadline
foodservice distributor based on fiscal 1997 sales of approximately $5.2
billion. Broadline distributors offer a comprehensive range of food and related
products from a single source of supply and provide foodservice establishments
with the cost savings associated with large, full-service deliveries. Operating
from over 40 full-service distribution centers nationwide, the Company offers
its products and services across a broad geographic area encompassing more than
85% of the U.S. population.
The Company markets and distributes more than 40,000 national, private
label and signature brand items to over 130,000 foodservice customers, including
restaurants, hotels, health care facilities, cafeterias and schools. The
Company's diverse customer base encompasses both independent (or "street") and
multi-unit (or "chain") businesses, including Old Country Buffet, Perkins Family
Restaurants, Subway, Eurest Dining Services, Cheesecake Factory, Kindercare,
Pizzeria Uno and Ruby Tuesday. The Company's comprehensive product line includes
canned and dry food products, fresh meats, poultry, seafood, specialty and
gourmet imported products, frozen foods, fresh produce, dairy and other
refrigerated products, paper products, cleaning supplies, light restaurant
equipment and other supplies. This broad product line provides the Company's
customers with a single source to satisfy substantially all of their foodservice
needs.
The Company also provides restaurant design and engineering services
for all types of foodservice operations through its contract/design offices and
manufactures products primarily under its proprietary private labels.
As of December 27, 1997, the end of its second quarter in fiscal 1998,
the Company had over 12,000 full-time employees.
The Company supplements its internal expansion with an active program
of strategic acquisitions to take advantage of growth opportunities from ongoing
consolidation in the fragmented foodservice distribution industry. The Company
seeks to increase penetration of its existing markets through "fold-in"
acquisitions of small, privately-owned distributors within its current markets
and to expand into new markets through acquisitions of larger-sized
distributors. The Company's ability to compete for acquisition opportunities
with other foodservice businesses is enhanced by its financial resources, which
include access to the public capital markets.
Effective February 27, 1998 the Company changed its corporate name
from JP Foodservice, Inc. to U.S. Food service. The references herein to U.S.
Foodservice prior to February 27, 1998 are to JP Foodservice, Inc.
The principal executive offices of U.S. Foodservice are located at
9830 Patuxent Woods Drive, Columbia, Maryland 21046, and U.S. Foodservice's
telephone number is (410) 312-7100.
Unless the context otherwise requires, references in this Prospectus
to the Company or U.S. Foodservice are to U.S. Foodservice and its consolidated
subsidiaries.
MERGER
Effective December 23, 1997, the Company acquired by merger (the
"Merger") Rykoff-Sexton, Inc. ("Rykoff-Sexton"), the nation's third largest
broadline foodservice distributor. In the transaction, Rykoff-Sexton merged with
and into a wholly-owned subsidiary of the Company ("Merger Sub") pursuant to an
Agreement and Plan of Merger, dated as of June 30, 1997, as amended, (the
"Merger Agreement") among Rykoff-Sexton, Merger Sub and the Company. Merger Sub,
formerly known as Hudson Acquisition Corp., was the surviving corporation in the
Merger, was renamed Rykoff-Sexton, Inc. as of the effective time of the Merger
(the "Effective Time") and will continue to be a wholly-owned subsidiary of the
Company.
At the Effective Time, each issued and outstanding share of Common
Stock, par value $.10 per share, of Rykoff-Sexton (the "Rykoff-Sexton Common
Shares") (other than Rykoff-Sexton Common Shares, if any, owned by the Company,
Merger Sub or Rykoff-Sexton, which were canceled) was converted into the right
to receive 0.775 (the "Exchange Ratio") of a U.S. Foodservice Common Share. In
connection with the Merger, holders of Rykoff-Sexton Common Shares immediately
before the Merger received U.S. Foodservice Common Shares representing
approximately 50% of the U.S. Foodservice Common Shares outstanding giving
effect to the Merger. Entities (the "ML Investors") holding Rykoff-Sexton Common
Shares immediately before the Merger who are affiliated with Merrill Lynch,
Pierce, Fenner & Smith Incorporated, an international investment banking and
advisory firm, received U.S. Foodservice Common Shares representing
approximately 17% of the U.S. Foodservice Common Shares outstanding giving
effect to the Merger.
U.S. Foodservice has accounted for the Merger as a pooling of
interests in accordance with generally accepted accounting principles. The
Merger constitutes a "reorganization" within the meaning of Section 368(a) of
the Internal Revenue Code of 1986, as amended.
U.S. Foodservice's Registration Statement on Form S-4 (Registration
No. 333-32711), which was declared effective by the Commission on November 24,
1997, sets forth certain information regarding the Merger, U.S. Foodservice and
Rykoff-Sexton. Such information includes, but is not limited to, information
regarding the date and manner of the Merger, a description of the assets
involved, the nature and amount of consideration paid by U.S. Foodservice
therefor, the method used for determining the amount of such consideration, the
nature of Rykoff-Sexton's business and U.S. Foodservice's intended use of the
assets acquired in the Merger.
NEW CREDIT FACILITY
In connection with the Merger, immediately following the Effective
Time, the Company entered into a new revolving credit facility and a new 364-day
revolver/term loan facility (collectively, the "New Credit Facility") with a
syndicate of banks which will provide the Company with funding of up to $750
million. A portion of such funds was applied to refinance indebtedness of U.S.
Foodservice and Rykoff-Sexton outstanding at the Effective Time under their
former senior bank credit facilities and to prepay U.S. Foodservice's 8.55%
Senior Notes due 2004. The Company will use other borrowings under the New
Credit Facility to pay fees and expenses incurred in connection with the Merger
and to finance capital expenditures and on-going capital needs.
5
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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 U.S. Foodservice Common Shares before making an
investment in the Shares 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 U.S. 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 U.S.
Foodservice and Rykoff-Sexton businesses. The managements of Rykoff-Sexton have
estimated that the combination of U.S. 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 U.S.
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 U.S. 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 maintained by either U.S. Foodservice or Rykoff-Sexton prior to the
Merger
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can be achieved by U.S. 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 cost 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, U.S. Foodservice's operating results would be
negatively affected.
EFFECT OF SIGNIFICANT INDEBTEDNESS ON RESULTS OF OPERATIONS AND FINANCIAL
CONDITION OF COMBINED COMPANY
Following the Merger, U.S. Foodservice has significant indebtedness
and debt service obligations. At December 27, 1997, the Company's total
indebtedness (excluding current maturities) was approximately $754 million. U.S.
Foodservice may incur additional indebtedness in the future, subject to certain
limitations contained in the instruments governing its indebtedness. The New
Credit Facility is expected to provide for lower borrowing costs than the
overall borrowing costs available under the former senior bank credit facilities
of U.S. Foodservice and Rykoff-Sexton.
Based upon the current level of operations and anticipated cost
savings, U.S. Foodservice believes that after the Merger its cash flow from
operations, together with borrowings under the New Credit Facility 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
U.S. Foodservice and Rykoff-Sexton in the aggregate or that anticipated cost
savings can be fully achieved. The failure of U.S.
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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 U.S. Foodservice is unable to generate
sufficient cash flow from operations in the future to service its debt and make
necessary capital expenditures, U.S. 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 constituted 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") are outstanding. Pursuant to
the Indenture, on January 30, 1998, Merger Sub, as the surviving corporation
in the Merger, made an offer to purchase the Rykoff-Sexton Public Notes at a
purchase price equal to 101% of the principal amount ($131.3 million), plus
accrued interest from the most recent preceding semi-annual interest payment
date to the purchase 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. U.S. 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 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, the ML Investors beneficially owned
approximately 17% of the outstanding U.S. Foodservice Common Shares. The ML
Investors may not sell the U.S. Foodservice Common Shares 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 have the right, pursuant to
a registration rights agreement assumed by the Company in the Merger, to require
U.S. 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 U.S. Foodservice Common Shares issued to them in the Merger in exchange
for the Rykoff-Sexton Common Shares formerly entitled to the benefits of such
agreement. This group of shareholders and other parties will also have
"piggyback" registration rights under such agreement with respect to the U.S.
Foodservice Common Shares
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issued to them in the Merger. The holders of certain Rykoff-Sexton common stock
purchase warrants assumed by the Company in the Merger and converted into
warrants to purchase U.S. Foodservice Common Shares will be entitled to certain
"demand" and "piggyback" registration rights with respect to the U.S.
Foodservice Common Shares issued or issuable upon exercise of such new warrants.
In addition, U.S. Foodservice has previously granted certain "shelf"
and "piggyback" registration rights with respect to Shares 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 U.S. Foodservice Common Shares by stockholders pursuant to such registration
rights, or the availability of such shares for such future sales, will have on
the market price of U.S. Foodservice Common Shares prevailing from time to time.
Sales of substantial amounts of U.S. Foodservice Common Shares, or the
perception that such sales could occur, could adversely affect prevailing market
prices for the U.S. Foodservice Common Shares and could impair U.S.
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 U.S.
Foodservice Common Shares beneficially owned by the ML Investors is the largest
percentage of such shares beneficially owned by any person or group.
Pursuant to the Merger Agreement, the ML Investors have designated two
members of the U.S. Foodservice Board of Directors. In addition, pursuant to a
standstill agreement which was originally entered into with Rykoff-Sexton and
which is for the benefit of U.S. Foodservice after the merger (the "Standstill
Agreement"), the ML Investors have agreed to vote the U.S. Foodservice Common
Shares and other voting securities owned by them and their affiliates for U.S.
Foodservice's nominees to the Board of Directors, in accordance with the
recommendation of the Nominating Committee of the 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 U.S. Foodservice Common Shares or otherwise
engage in transactions, or take actions involving a change of control of U.S.
Foodservice. The U.S. Foodservice Common Shares 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
U.S. Foodservice Common Shares and other voting securities held by the ML
Investors unless otherwise permitted by the Standstill Agreement.
The U.S. Foodservice Common Shares received by the ML Investors in the
Merger will constitute a significant block of the voting power of the U.S.
Foodservice Common Shares. The voting of such shares as
9
<PAGE>
required by the Standstill Agreement will make it easier for the Board of
Directors to obtain the approval of U.S. Foodservice stockholders for the
election of U.S. Foodservice's nominees to the Board of Directors. Such a voting
block also could facilitate or impede the approval of any other matter requiring
approval of U.S. Foodservice stockholders, including a merger, consolidation or
other business combination involving U.S. Foodservice, or discourage a potential
acquiror from making a tender offer or otherwise attempt to obtain control of
U.S. Foodservice.
FACTORS RELATING TO FUTURE ACQUISITIONS
U.S. Foodservice's growth strategy emphasizes supplementing internal
expansion with acquisitions, and a significant portion of the growth of U.S.
Foodservice's revenues in fiscal year 1997 resulted from acquisitions. There can
be no assurance that U.S. 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
U.S. 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 U.S. Foodservice's operations. Once
integrated, acquired operations may not achieve levels of net sales or
profitability comparable to those achieved by U.S. Foodservice's existing
operations, or otherwise perform as expected. There can be no assurance that
U.S. 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 U.S.
Foodservice and will be subject to restrictions contained in the New Credit
Facility, the Indenture and other agreements relating to U.S. Foodservice's
indebtedness. Equity financing of any such acquisition may dilute the ownership
of U.S. Foodservice's stockholders. There can be no assurance that U.S.
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
10
<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 U.S.
Foodservice Common Shares, generally will be triggered upon the acquisition (or
certain actions that would result in the acquisition) of 10% or more of the U.S.
Foodservice Common Shares by any person or group. Institutional investors
eligible to report their ownership of the U.S. Foodservice Common Shares on
Schedule 13G under the Exchange Act may acquire up to 15% of the U.S.
Foodservice Common Shares without triggering such rights.
11
<PAGE>
VOLATILITY OF MARKET PRICE FOR U.S. FOODSERVICE COMMON SHARES
From time to time, there may be significant volatility in the market
price for the U.S. Foodservice Common Shares. 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 U.S. Foodservice Common Shares 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
U.S. Foodservice has never paid cash dividends on the U.S. Foodservice
Common Shares and does not anticipate declaring or paying cash dividends for the
foreseeable future. Financial covenants and other restrictions contained in the
New Credit Facility and the Indenture require U.S. Foodservice to meet certain
financial tests, and such agreements may restrict its ability to pay cash
dividends.
12
<PAGE>
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 February 10, 1998, 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 U.S. Foodservice Common Shares.
The Selling Stockholders (other than The John S. Beuchat Living Trust) include
former stockholders of the Mazo-Lerch Company ("Mazo-Lerch") and their permitted
transferees and successors. The Company issued 279,268 of the Shares to the
Selling Stockholders in consideration for its acquisition of Mazo-Lerch in the
fourth quarter of fiscal 1997. The Company issued the remaining Shares to The
John S. Beuchat Living Trust in consideration for its acquisition of Outwest
Meat Company in the fourth quarter of 1997.
13
<PAGE>
<TABLE>
<CAPTION>
NAME AND ADDRESS OF SHARES BENEFICIALLY SHARES SHARES BENEFICIALLY
BENEFICIAL OWNER OWNED PRIOR TO OFFERING OFFERED OWNED AFTER OFFERING
-------------------- ------------------------- ------- --------------------
<S> <C> <C> <C>
The John Beuchat Living Trust 335,626 57,971 277,655
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.
John S. Beuchat served as the President of Outwest Meat Company prior
to the time it was acquired by the Company and he continues to serve Outwest
Meat Company in that capacity.
14
<PAGE>
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 U.S. Foodservice Common Shares 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 U.S. Foodservice Common Shares 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 and
Outwest Meat Company. Under its registration rights agreements 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 on the NYSE or any other market which the U.S.
Foodservice Common Shares may be traded, 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 or following 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
15
<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 permitted donees, transferees and
successors in interest of the Selling Stockholders or by other persons acquiring
Shares, including brokers who borrow the Shares to settle short sales of the
U.S. Foodservice Common Shares, 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
U.S. Foodservice Common Shares 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 Shares offered hereby will be passed upon for the
Company by Miles & Stockbridge P.C.
EXPERTS
U.S. Foodservice. The consolidated financial statements of U.S.
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 upon the reports of KPMG Peat Marwick LLP
and Arthur Andersen LLP, independent certified public accountants, incorporated
herein by reference and upon the authority of said firms as experts in auditing
and accounting.
16
<PAGE>
The consolidated financial statements of U.S. Foodservice (formerly
JP Foodservice, Inc.) 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.
Valley Industries, Inc. 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.
Rykoff-Sexton. The audited consolidated financial statements of
Rykoff-Sexton and subsidiaries as of June 28, 1997 and April 27, 1996, and for
the fiscal years ended June 28, 1997, April 27, 1996 and April 29, 1995 and the
nine-week transition period ended June 29, 1996 incorporated by reference in
this Prospectus have been audited by Arthur Andersen LLP, independent public
accountants, as indicated in their reports with respect thereto and are
incorporated by reference herein in reliance upon the authority of said firm as
experts in giving said reports.
17
<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................... $ 3,140.47
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 $18,140.47
</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 agreements 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.
3.2 Amended and Restated By-Laws of the Company.
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 U.S.
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 Amendment No. 4 to Rights Agreement, dated as of December 23,
1997 (incorporated by reference to the Company's Form 8-K dated
January 7, 1998).
5.1 Opinion of Miles & Stockbridge P.C., counsel to the Company,
regarding the validity of the securities being offered.
23.1 Consent of Price Waterhouse LLP, Independent Accountants.
23.2 Consents of KPMG Peat Marwick LLP, Independent Accountants.
23.3 Consent of Arthur Andersen LLP, Independent Accountants.
23.4 Consent of Miles & Stockbridge P.C. (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 Pre-effective
Amendment No. 1 to Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Columbia, State of
Maryland, on March 9, 1998.
U.S. FOODSERVICE
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 March 9, 1998
- --------------------- and Chief Executive Officer
James L. Miller (Principal Executive Officer)
* Director, Executive Vice President March 9, 1998
- --------------------- and Chief Financial Officer
Lewis Hay, III (Principal Financial Officer)
* Vice President - Finance March 9, 1998
- --------------------- (Principal Accounting Officer)
George T. Megas
* Director March 9, 1998
- ---------------------
Michael J. Drabb
/s/ David M. Abramson Director March 9, 1998
- ---------------------
David M. Abramson
* Director March 9, 1998
- ---------------------
Eric E. Glass
</TABLE>
II-6
<PAGE>
<TABLE>
<S> <C> <C>
* Director March 9, 1998
- --------------------------
Mark P. Kaiser
* Director March 9, 1998
- --------------------------
Paul I. Latta, Jr.
* Director March 9, 1998
- --------------------------
Dean R. Silverman
* Director March 9, 1998
- --------------------------
Jeffrey D. Serkes
* Director March 9, 1998
- --------------------------
James P. Miscoll
* Director March 9, 1998
- --------------------------
Bernard Sweet
* Director March 9, 1998
- --------------------------
James I. Maslon
* Director March 9, 1998
- --------------------------
Neil I. Sell
* Director March 9, 1998
- --------------------------
Albert J. Fitzgibbons, III
* Director March 9, 1998
- --------------------------
Matthias B. Bowman
*By:/s/ David M. Abramson March 9, 1998
---------------------
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.
3.2 Amended and Restated By-Laws of the Company.
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 U.S.
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 Amendment No. 4 to Rights Agreement, dated as of December 23, 1997
(incorporated by reference to the Company's Form 8-K dated January 7,
1998).
<PAGE>
5.1 Opinion of Miles & Stockbridge P.C., counsel to Company, regarding the
validity of the securities being offered.
23.1 Consent of Price Waterhouse LLP, Independent Accountants.
23.2 Consents of KPMG Peat Marwick LLP, Independent Accountants.
23.3 Consent of Arthur Andersen LLP, Independent Accountants.
23.4 Consent of Miles & Stockbridge P.C. (contained in exhibit 5.1).
24 Powers of Attorney.
<PAGE>
EXHIBIT 3.1
CERTIFICATE OF OWNERSHIP AND MERGER
MERGING
JP NAME SUB, INC.
WITH AND INTO
JP FOODSERVICE, INC.
(Pursuant to Section 253 of the
General Corporation of Law of the State of Delaware)
JP Foodservice, Inc., a Delaware corporation organized and existing
under the laws of the State of Delaware (the "Corporation"), DOES HEREBY
CERTIFY:
FIRST: The Corporation owns all of the outstanding shares of common
stock (the only outstanding class of stock) of JP Name Sub, Inc. (the
"Subsidiary"), a corporation incorporated on the 16th day of January, 1998,
pursuant to the General Corporation Law of the State of Delaware (the "DGCL").
SECOND: The Corporation, by resolutions (the "Resolutions of Merger")
duly adopted by its Board of Directors, at a meeting thereof duly called and
held on the 22nd day of January, 1998, at which a quorum was present and acting
throughout, determined to effect a merger of the Subsidiary into itself,
pursuant to Section 253 of the DGCL, in which the Corporation shall be the
surviving corporation (the "Merger"). A true and correct copy of the
Resolutions of Merger is annexed hereto as Exhibit A and incorporated herein by
---------
reference. The Resolutions of Merger have not been amended, modified, rescinded
or revoked and are in full force and effect on the date hereof.
THIRD: That, as provided in the Resolutions of Merger: (a) Pursuant
to Section 253(b) of the DGCL, upon the Merger becoming effective, the name of
the surviving corporation shall be changed from "JP Foodservice, Inc." to "U.S.
Foodservice"; and (b) Pursuant to Section 102(a)(1) of the DGCL, the undersigned
hereby certifies that the surviving corporation's total assets, as defined in 8
Del. C. (S) 503(i), are not less than $10,000,000.00.
- ------
<PAGE>
IN WITNESS WHEREOF, the Corporation has caused this Certificate of
Ownership and Merger to be executed by its duly authorized officer this 23rd day
of February, 1998.
JP FOODSERVICE, INC.
By: /s/ Lewis Hay, III
---------------------------------
Name: Lewis Hay, III
Office: Executive Vice President
-2-
<PAGE>
EXHIBIT A
RESOLUTIONS OF MERGER
WHEREAS, JP Foodservice, Inc., a Delaware corporation (the
"Corporation"), owns all of the outstanding shares of the capital stock of JP
Name Sub, Inc., a Delaware corporation (the "Subsidiary"); and
WHEREAS, the Board of Directors of the Corporation has deemed it
advisable that the Subsidiary be merged with and into the Corporation pursuant
to Section 253 of the General Corporation Law of the State of Delaware (the
"DGCL");
NOW, THEREFORE, BE IT RESOLVED, that the Subsidiary be merged with and
into the Corporation pursuant to Section 253 of the DGCL (the "Merger");
RESOLVED, FURTHER, that the Corporation shall be the corporation
surviving the Merger and shall continue its corporate existence under the DGCL,
including, without limitation, the provisions of Section 259 of the DGCL, and
shall possess all of the rights and assets of the constituent corporations and
be subject to, and be deemed to have hereby assumed, all the liabilities and
obligations of each of the constituent corporations in accordance with the
provisions of the DGCL;
RESOLVED, FURTHER, that by virtue of the Merger and without any action
on the part of the holder thereof, each then outstanding share of common stock
of the Subsidiary shall be canceled and no consideration shall be issued in
respect thereof;
RESOLVED, FURTHER, that the Restated Certificate of Incorporation of
the Corporation, as in effect immediately prior to the effective time of the
Merger, shall continue in full force and effect as the certificate of
incorporation of the surviving corporation, until amended as provided by law,
except that upon the effective time of the Merger, in accordance with Section
253(b) of the DGCL, Article I of the Restated Certificate of Incorporation of
the Corporation shall be, and hereby is, amended to change the name of the
Corporation from "JP Foodservice, Inc." to "U.S. Foodservice." Pursuant to
Section 104 of the DGCL, the filed Certificate of Ownership and Merger shall
have the effect of striking the text of Article I of the Restated Certificate of
Incorporation of the Corporation in its entirety and inserting in lieu thereof
the following:
"ARTICLE I
NAME
The name of the corporation is U.S. Foodservice (the "Corporation")."
<PAGE>
RESOLVED, FURTHER, that the By-laws of the Corporation, as in effect
immediately prior to the effective time of the Merger, shall continue in full
force and effect as the By-laws of the surviving corporation until amended or
repealed as therein provided, except that the By-laws of the Corporation shall
be, and hereby are, amended to delete the name "JP Foodservice, Inc." wherever
it may therein appear, and substitute therefor in all such places the name "U.S.
Foodservice";
RESOLVED, FURTHER, that the Chairman of the Board, the President, any
Vice President and any other proper officers of the Corporation be, and they
hereby are, authorized and directed to make, execute and acknowledge, in the
name and under the corporate seal of the Corporation, a Certificate of Ownership
and Merger for the purpose of effecting the Merger and to file the same in the
office of the Secretary of State of the State of Delaware, and to do all other
acts and things that may be necessary or appropriate to carry out and effectuate
the purpose and intent of the resolutions relating to the Merger.
-2-
<PAGE>
RESTATED
CERTIFICATE OF INCORPORATION
OF
JP FOODSERVICE, INC.
JP Foodservice, Inc., a corporation organized and existing under the laws
of the State of Delaware, hereby certifies as follows:
1. The name under which the corporation was originally incorporated is JPF
Holdings, Inc. and the original Certificate of Incorporation of the corporation
was filed with the Secretary of State of the State of Delaware on June 22, 1989.
2. This Restated Certificate of Incorporation restates and integrates and
does not further amend the provisions of the Certificate of Incorporation of the
corporation as heretofore amended or supplemented, and there is no discrepancy
between those provisions and the provisions of this Restated Certificate of
Incorporation.
3. This Restated Certificate of Incorporation has been duly adopted in
accordance with the provisions of Section 245 of the General Corporation Law of
the State of Delaware.
4. The text of the Certificate of Incorporation of the corporation is
hereby restated and integrated to read in its entirety as follows:
ARTICLE I
NAME
The name of the corporation is JP Foodservice, Inc. (the "Corporation").
ARTICLE II
REGISTERED OFFICE AND REGISTERED AGENT
The address of the Corporation's registered office in the State of Delaware
is 1013 Centre Road, in the City of Wilmington, County of New Castle. The name
of the Corporation's registered agent at such address is Corporation Service
Company.
<PAGE>
ARTICLE III
PURPOSE
The purpose or purposes for which the Corporation is organized are to
engage in any lawful act or activity for which corporations may be organized
under the General Corporation Law of the State of Delaware as from time to time
amended (the "General Corporation Law").
ARTICLE IV
CAPITAL STOCK
The Corporation shall have the authority to issue a total of one hundred
fifty-five million (155,000,000) shares of capital stock, each with a par value
of $0.01, consisting of one hundred fifty million (150,000,000) shares of Common
Stock and five million (5,000,000) shares of Preferred Stock.
ARTICLE V
COMMON STOCK
Except as required by law, all shares of Common Stock shall be identical in
all respects and shall entitle the holders thereof to the same rights and
privileges, subject to the same qualifications, limitations and restrictions.
Except as required by law, the holders of shares of Common Stock shall be
entitled to one vote per share of Common Stock on all matters on which
stockholders of the Corporation have the right to vote.
ARTICLE VI
PREFERRED STOCK
Section A. Preferred Stock. The Corporation is authorized to issue shares
---------------
of Preferred Stock from time to time in one or more series as may from time to
time be determined by the Board of Directors of the Corporation (the "Board"),
each of such series to be distinctly designated. The voting powers, preferences
and relative, participating, optional and other special rights, and the
qualifications, limitations or restrictions thereof, if any, of each such series
may differ from those of any and all other series of Preferred Stock at any time
outstanding, and the Board is hereby expressly granted authority to fix or
alter, by resolution or resolutions, the designation, number, voting powers,
preferences and relative, participating, optional, and other special rights, and
the qualifications, limitations and restrictions, of each such series,
including, but without limiting the generality of the foregoing, the following:
2
<PAGE>
1. The distinctive designation of, and the number of shares of Preferred
Stock that shall constitute, such series, which number (except where otherwise
provided by the Board in the resolution establishing such series) may be
increased (but not above the total number of shares of Preferred Stock) or
decreased (but not below the number of shares of such series then outstanding)
from time to time by like action of the Board.
2. The rights in respect of dividends, if any, of such series of Preferred
Stock, the extent of the preference or relation, if any, of such dividends to
the dividends payable on any other class or classes or any other series of the
same or other class or classes of capital stock of the Corporation, and whether
such dividends shall be cumulative or noncumulative.
3. The right, if any, of the holders of such series of Preferred Stock to
convert the same into, or exchange the same for, shares of any other class or
classes or of any other series of the same or any other class or classes of
capital stock of the Corporation, and the terms and conditions of such
conversion or exchange.
4. Whether or not shares of such series of Preferred Stock shall be
subject to redemption, and the redemption price or prices and the times at
which, and the terms and conditions on which, shares of such series of Preferred
Stock may be redeemed.
5. The rights, if any, of the holders of such series of Preferred Stock
upon the voluntary or involuntary liquidation, dissolution or winding-up of the
Corporation or in the event of any merger or consolidation of or sale of assets
by the Corporation.
6. The terms of any sinking fund or redemption or purchase account, if
any, to be provided for shares of such series of the Preferred Stock.
7. The voting powers, if any, of the holders of any series of Preferred
Stock generally or with respect to any particular matter, which may be less
than, equal to or greater than one vote per share, and which may, without
limiting the generality of the foregoing, include the right, voting as a series
by itself or together with the holders of any other series of Preferred Stock or
all series of Preferred Stock as a class, to elect one or more directors of the
Corporation generally or under such specific circumstances and on such
conditions as shall be provided in the resolution or resolutions of the Board
adopted pursuant hereto, including, without limitation, in the event there shall
have been a default in the payment of dividends on or redemption of any one or
more series of Preferred Stock.
3
<PAGE>
Section B. Rights of Preferred Stock.
-------------------------
1. After the provisions with respect to preferential dividends on any
series of Preferred Stock (fixed in accordance with the provisions of Section
(A) of this Article VI), if any, shall have been satisfied and after the
Corporation shall have complied with all the requirements, if any, with respect
to redemption of, or the setting aside of sums as sinking funds or redemption or
purchase accounts with respect to, any series of Preferred Stock (fixed in
accordance with the provisions of Section (A) of this Article VI), and subject
further to any other conditions that may be fixed in accordance with the
provisions of Section (A) of this Article VI, then and not otherwise the holders
of Common Stock shall be entitled to receive such dividends as may be declared
from time to time by the Board.
2. In the event of the voluntary or involuntary liquidation, dissolution
or winding-up of the Corporation, after distribution in full of the preferential
amounts, if any (fixed in accordance with the provisions of Section (A) of this
Article VI), to be distributed to the holders of Preferred Stock by reason
thereof, the holders of Common Stock shall, subject to the additional rights, if
any (fixed in accordance with the provisions of Section (A) of this Article VI),
of the holders of any outstanding shares of Preferred Stock, be entitled to
receive all of the remaining assets of the Corporation, tangible or intangible,
of whatever kind available for distribution to stockholders ratably in
proportion to the number of shares of Common Stock held by them respectively.
3. Except as may otherwise be required by law, and subject to the
provisions of such resolution or resolutions as may be adopted by the Board
pursuant to Section (A) of this Article VI granting the holders of one or more
series of Preferred Stock exclusive voting powers with respect to any matter,
each holder of Common Stock may have one vote in respect to each share of Common
Stock held on all matters voted upon by the stockholders.
4. The number of authorized shares of Preferred Stock and each class of
Common Stock may, without a class or series vote, be increased or decreased from
time to time by the affirmative vote of the holders of shares having a majority
of the total number of votes which may be cast in the election of directors of
the Corporation by all stockholders entitled to vote in such an election, voting
together as a single class.
The Certificate of Designations with respect to the Corporation's Series A
Junior Participating Preferred Stock, as filed with the Secretary of State of
the State of Delaware on February 28, 1996 and attached hereto as Annex A, is
hereby incorporated by reference herein and made a part hereof.
4
<PAGE>
ARTICLE VII
BY-LAWS
The Board is expressly authorized to adopt, amend or repeal the By-laws of
the Corporation.
ARTICLE VIII
ELECTION OF DIRECTORS
The directors of the Corporation shall not be required to be elected by
written ballots unless the By-laws of the Corporation so provide.
ARTICLE IX
BOARD OF DIRECTORS
Section A. Classified Board. The Board, other than those directors
----------------
elected by the holders of any series of Preferred Stock as provided for or fixed
pursuant to the provisions of Article VI hereof, shall be divided into three
classes, as nearly equal in number as the then-authorized number of directors
constituting the Board permits, with the term of office of one class expiring
each year and with each director serving for a term ending at the third annual
meeting of stockholders of the Corporation following the annual meeting at which
such director was elected. One class of directors shall be initially elected for
a term expiring at the annual meeting of stockholders to be held in 1995,
another class shall be initially elected for a term expiring at the annual
meeting of stockholders to be held in 1996, and another class shall be initially
elected for a term expiring at the annual meeting of stockholders to be held in
1997. Members of each class shall hold office until their successors are elected
and qualified. At each succeeding annual meeting of the stockholders of the
Corporation, the successors of the class of directors whose term expires at that
meeting shall be elected by a plurality vote of all votes cast at such meeting
to hold office for a term expiring at the annual meeting of stockholders held in
the third year following the year of their election.
Section B. Vacancies. Except as otherwise provided for or fixed pursuant
---------
to the provisions of Article VI hereof relating to the rights of the holders of
any series of Preferred Stock to elect additional directors, newly created
directorships resulting from any increase in the authorized number of directors
and any vacancies on the Board resulting from death, resignation,
disqualification, removal or other cause shall be filled only by the affirmative
vote of a majority of the remaining directors then in office, even though less
than a quorum of the Board. Any director elected in accordance with the
preceding sentence shall hold office for the remainder of the full term of the
class of directors in which the new directorship was created or in which the
vacancy occurred and until such director's successor
5
<PAGE>
shall have been duly elected and qualified. No decrease in the number of
directors constituting the Board shall shorten the term of any incumbent
director.
Section C. Directors Elected by Holders of Preferred Stock. During any
-----------------------------------------------
period when the holders of any series of Preferred Stock have the right to elect
additional directors as provided for or fixed pursuant to the provisions of
Article VI hereof, then upon commencement and for the duration of the period
during which such right continues (i) the then otherwise total authorized number
of directors of the Corporation shall automatically be increased by such
specified number of directors, and the holders of such Preferred Stock shall be
entitled to elect the additional directors so provided for or fixed pursuant to
such provisions, and (ii) each such additional director shall serve until such
director's successor shall have been duly elected and qualified, or until such
director's right to hold such office terminates pursuant to such provisions,
whichever occurs earlier. Except as otherwise provided by the Board in the
resolution or resolutions establishing such series, whenever the holders of any
series of Preferred Stock having such right to elect additional directors are
divested of such right pursuant to the provisions of such stock, the terms of
office of all such additional directors elected by the holders of such stock, or
elected to fill any vacancies resulting from death, resignation,
disqualification or removal of such additional directors, shall forthwith
terminate and the total and authorized number of directors of the Corporation
shall be reduced accordingly. Notwithstanding the foregoing, whenever, pursuant
to the provisions of Article VI hereof, the holders of any one or more series of
Preferred Stock shall have the right, voting separately as a series or together
with holders of other such series, to elect directors at an annual or special
meeting of stockholders, the election, term of office, filling of vacancies and
other features of such directorships shall be governed by the terms of the
Restated Certificate of Incorporation and the Certificate of Designation
applicable thereto, and such directors so elected shall not be divided into
classes pursuant to this Article IX unless expressly provided by such terms.
Section D. Number of Directors Constituting the Board. The number of
------------------------------------------
directors that shall constitute the full Board, other than any directors elected
by the holders of any series of Preferred Stock as provided for or fixed
pursuant to the provisions of Article VI hereof, shall be fixed by the By-laws
of the Corporation.
ARTICLE X
NO ACTION BY WRITTEN CONSENT OF STOCKHOLDERS
Except as otherwise provided for or fixed pursuant to the provisions of
Article VI hereof relating to the rights of the holders of any series of
Preferred Stock, no action that is required or permitted to be taken by the
stockholders of the Corporation at any annual or special meeting of stockholders
may be effected by written consent of stockholders in lieu of a meeting of
stockholders.
6
<PAGE>
ARTICLE XI
DIRECTOR NOMINATION PROCEDURE;
ANNUAL MEETING BUSINESS
Section A. Director Nomination Procedure. Except as otherwise provided
-----------------------------
for or fixed pursuant to the provisions of Article VI hereof relating to the
rights of the holders of any series of Preferred Stock, nominations for the
election of directors may be made by the affirmative vote of a majority of the
Board or a duly authorized committee thereof or by any holder of record of
shares of capital stock of the Corporation entitled to vote generally for the
election of directors; provided that any stockholder may nominate one or more
--------
persons for election as directors at a meeting only if written notice of such
stockholder's intention to make such nomination or nominations has been given,
either by personal delivery or by United States mail, postage prepaid, to the
Secretary of the Corporation not later than (i) with respect to an election to
be held at an annual meeting of stockholders (other than the first annual
meeting of stockholders), ninety (90) days prior to the date that is one year
from the date of the immediately preceding meeting of stockholders and (ii) with
respect to an election to be held at the first annual meeting of stockholders or
at a special meeting of stockholders for the election of directors, the close of
business on the seventh day following the date on which notice of the meeting is
first given to stockholders. For the purposes of this Section (A) of this
Article XI, the date notice of a meeting is deemed to have been first given
shall include, but not be limited to, the date on which disclosure of the date
of the meeting is first made in a press release reported by the Dow Jones News
Services, Associated Press or comparable national news service, or in a document
publicly filed by the Corporation with the Securities and Exchange Commission
pursuant to Section 13, 14 or 15(d) (or the rules and regulations thereunder) of
the Securities Exchange Act of 1934, as amended. Each such notice to the
Secretary shall set forth the following information: (i) the name and address of
record of the stockholder who intends to make the nomination, (ii) a
representation that the stockholder is a holder of record of stock of the
Corporation entitled to vote generally for the election of directors at such
meeting and intends to appear in person or by proxy at the meeting to nominate
the person or persons specified in the notice, (iii) the name, age, business and
residential addresses and principal occupation or employment of each nominee,
(iv) a description of all arrangements or understandings between the stockholder
and each proposed nominee and any other person or persons (naming such person or
persons) pursuant to which the nomination or nominations are to be made by the
stockholder, (v) such other information regarding each proposed nominee as would
be required to be included in a proxy statement filed pursuant to the rules and
regulations of the Securities and Exchange Commission and (vi) the written
consent of each proposed nominee to serve as a director of the Corporation if so
elected. The Corporation may require the proposed nominee to furnish such other
information as may reasonably be required by the Corporation to determine the
eligibility of such
7
<PAGE>
proposed nominee to serve as a director of the Corporation. The presiding
officer of the meeting may, if the facts warrant, determine that a nomination
was not made in accordance with the foregoing procedure, and if such officer
should so determine, such officer shall so declare to the meeting and the
defective nomination shall be disregarded.
Section B. Annual Meeting Business. At an annual meeting of the
-----------------------
stockholders, only such business shall be conducted as shall have been properly
brought before the meeting. To be properly brought before an annual meeting,
business must be (i) specified in the notice of meeting (or any supplement
thereto) given by or at the direction of the Board, (ii) otherwise properly
brought before the meeting by or at the direction of the Board or (iii)
otherwise properly brought before the meeting by a stockholder. For business to
be properly brought before an annual meeting by a stockholder, the stockholder
must have given timely notice thereof in writing to the Secretary of the
Corporation. To be timely, a stockholder's notice must be received at the
principal executive offices of the Corporation (i) not less than sixty (60) days
in advance of such meeting if such meeting is to be held on a day which is
within thirty (30) days preceding the anniversary of the previous year's annual
meeting or ninety (90) days in advance of such meeting if such meeting is to be
held on or after the anniversary of the previous year's annual meeting, and (ii)
with respect to any other annual meeting of stockholders, on or before the close
of business on the 15th day following the date (or the first date, if there be
more than one) of public disclosure of the date of such meeting. For the
purposes of this Section (B) of this Article XI, the date of public disclosure
of a meeting shall include, but not be limited to, the date on which disclosure
of the date of the meeting is first made in a press release reported by the Dow
Jones News Services, Associated Press or comparable national news service, or in
a document publicly filed by the Corporation with the Securities and Exchange
Commission pursuant to Section 13, 14 or 15(d) (or the rules and regulations
thereunder) of the Securities Exchange Act of 1934, as amended. A stockholder's
notice to the Secretary of the Corporation shall set forth as to each matter the
stockholder proposes to bring before the annual meeting (i) a brief description
of the business desired to be brought before the annual meeting and the reasons
for conducting such business at the annual meeting, (ii) the name, age and
business and residential addresses, as they appear on the Corporation's records,
of the stockholder proposing such business, (iii) the class and number of shares
of the Corporation which are beneficially owned by the stockholder and (iv) any
material interest of the stockholder in such business. Notwithstanding anything
in the By-laws of the Corporation to the contrary, no business shall be
conducted at an annual meeting except in accordance with the procedures set
forth herein. The Chairman of the annual meeting shall, if the facts warrant,
determine and declare to the meeting that business was not properly brought
before the meeting and in accordance with the provisions hereof, and if the
Chairman should so determine, the Chairman shall so declare to the meeting and
any such business not properly brought before the meeting shall not be
transacted.
8
<PAGE>
ARTICLE XII
DIRECTOR LIABILITY
A director of the Corporation shall not be personally liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except for liability (i) for any breach of the director's
duty of loyalty to the Corporation or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) under Section 174 of the General Corporation Law or (iv)
for any transaction from which the director derived any improper personal
benefit. If the General Corporation Law is amended after the filing of this
Restated Certificate of Incorporation to authorize corporate action further
eliminating or limiting the personal liability of directors, then the liability
of a director of the Corporation shall be eliminated or limited to the fullest
extent permitted by the General Corporation Law, as so amended. No modification
or repeal of the provisions of this Article XII shall adversely affect any right
or protection of any director of the Corporation existing at the date of such
modification or repeal or create any liability or adversely affect any such
right or protection for any acts or omissions of such director occurring prior
to such modification or repeal.
IN WITNESS WHEREOF, this Restated Certificate of Incorporation, which
restates and integrates and does not further amend the provisions of the
Certificate of Incorporation of the Corporation as heretofore amended or
supplemented and which has been duly adopted in accordance with Section 245 of
the General Corporation Law, as the Corporation has received payment for its
capital stock, has been executed by its Executive Vice President and Secretary
this January 8, 1998.
JP FOODSERVICE, INC.
By:/s/ LEWIS HAY, III
-------------------------------------
Name: Lewis Hay, III
Title: Executive Vice President
Attest:
By:/s/ DAVID M. ABRAMSON
-------------------------------------
Name: David M. Abramson
Title: Secretary
9
<PAGE>
ANNEX A
-------
CERTIFICATE OF DESIGNATIONS
of
SERIES A JUNIOR PARTICIPATING PREFERRED STOCK
of
JP FOODSERVICE, INC.
(Pursuant to Section 151 of the
Delaware General Corporation Law)
-------------------------------
JP Foodservice, Inc., a corporation organized and existing under the
General Corporation Law of the State of Delaware (hereinafter called the
"Corporation"), hereby certifies that the following resolution was adopted by
the Board of Directors of the Corporation as required by Section 151 of the
General Corporation Law at a meeting duly called and held on February 19, 1996:
RESOLVED, that pursuant to the authority granted to and vested in the
Board of Directors of this Corporation (hereinafter called the "Board of
Directors" or the "Board") in accordance with the provisions of the Certificate
of Incorporation, the Board of Directors hereby creates a series of Preferred
Stock, par value $.01 per share (the "Preferred Stock"), of the Corporation and
hereby states the designation and number of shares, and fixes the relative
rights, preferences, and limitations thereof as follows:
Series A Junior Participating Preferred Stock:
Section 1. Designation and Amount. The shares of such series shall be
----------------------
designated as "Series A Junior Participating Preferred Stock" (the "Series A
Preferred Stock") and the number of shares constituting the Series A Preferred
Stock shall be 350,000. Such number of shares may be increased or decreased by
resolution of the Board of Directors; provided, that no decrease shall reduce
--------
the number of shares of Series A Preferred Stock to a number less than the
number of shares then outstanding plus the number of shares reserved for
issuance upon the exercise of outstanding options, rights or warrants or
<PAGE>
upon the conversion of any outstanding securities issued by the Corporation
convertible into Series A Preferred Stock.
Section 2. Dividends and Distributions.
---------------------------
(a) Subject to the rights of the holders of any shares of any series of
Preferred Stock (or any similar stock) ranking prior and superior to the
Series A Preferred Stock with respect to dividends, the holders of shares
of Series A Preferred Stock, in preference to the holders of Common Stock,
par value $.01 per share (the "Common Stock"), of the Corporation, and of
any other junior stock, shall be entitled to receive, when, as and if
declared by the Board of Directors out of funds legally available for the
purpose, quarterly dividends payable in cash on the first day of March,
June, September and December in each year (each such date being referred to
herein as a "Quarterly Dividend Payment Date"), commencing on the first
Quarterly Dividend Payment Date after the first issuance of a share or
fraction of a share of Series A Preferred Stock, in an amount per share
(rounded to the nearest cent) equal to the greater of (a) $1 or (b) subject
to the provision for adjustment hereinafter set forth, 100 times the
aggregate per share amount of all cash dividends, and 100 times the
aggregate per share amount (payable in kind) of all non-cash dividends or
other distributions, other than a dividend payable in shares of Common
Stock or a subdivision of the outstanding shares of Common Stock (by
reclassification or otherwise), declared on the Common Stock since the
immediately preceding Quarterly Dividend Payment Date or, with respect to
the first Quarterly Dividend Payment Date, since the first issuance of any
share or fraction of a share of Series A Preferred Stock. In the event the
Corporation shall at any time declare or pay any dividend on the Common
Stock payable in shares of Common Stock, or effect a subdivision or
combination or consolidation of the outstanding shares of Common Stock (by
reclassification or otherwise than by payment of a dividend in shares of
Common Stock) into a greater or lesser number of shares of Common Stock,
then in each such case the amount to which holders of shares of Series A
Preferred Stock were entitled immediately prior to such event under clause
(b) of the preceding sentence shall be adjusted by multiplying such amount
by a fraction, the numerator of which is the number of shares of Common
Stock outstanding immediately after such event and the denominator of which
is the number of shares of Common Stock that were outstanding immediately
prior to such event.
<PAGE>
(b) The Corporation shall declare a dividend or distribution on the
Series A Preferred Stock as provided in paragraph (A) of this Section
immediately after it declares a dividend or distribution on the Common
Stock (other than a dividend payable in shares of Common Stock); provided
that, in the event no dividend or distribution shall have been declared on
the Common Stock during the period between any Quarterly Dividend Payment
Date and the next subsequent Quarterly Dividend Payment Date, a dividend of
$1 per share on the Series A Preferred Stock shall nevertheless be payable
on such subsequent Quarterly Dividend Payment Date.
(c) Dividends shall begin to accrue and be cumulative on outstanding
shares of Series A Preferred Stock from the Quarterly Dividend Payment Date
next preceding the date of issue of such shares, unless the date of issue
of such shares is prior to the record date for the first Quarterly Dividend
Payment Date, in which case dividends on such shares shall begin to accrue
from the date of issue of such shares, or unless the date of issue is a
Quarterly Dividend Payment Date or is a date after the record date for the
determination of holders of shares of Series A Preferred Stock entitled to
receive a quarterly dividend and before such Quarterly Dividend Payment
Date, in either of which events such dividends shall begin to accrue and be
cumulative from such Quarterly Dividend Payment Date. Accrued but unpaid
dividends shall not bear interest. Dividends paid on the shares of Series A
Preferred Stock in an amount less than the total amount of such dividends
at the time accrued and payable on such shares shall be allocated pro rata
on a share-by-share basis among all such shares at the time outstanding.
The Board of Directors may fix a record date for the determination of
holders of shares of Series A Preferred Stock entitled to receive payment
of a dividend or distribution declared thereon, which record date shall be
not more than 60 days prior to the date fixed for the payment thereof.
Section 3. Voting Rights. The holders of shares of Series A Preferred
-------------
Stock shall have the following voting rights:
(a) Subject to the provision for adjustment hereinafter set forth, each
share of Series A Preferred Stock shall entitle the holder thereof to 100
votes on all matters submitted to a vote of the stockholders of the
Corporation. In the event the Corporation shall at any time declare or pay
any dividend on the Common Stock payable in
<PAGE>
shares of Common Stock, or effect a subdivision or combination or
consolidation of the outstanding shares of Common Stock (by
reclassification or otherwise than by payment of a dividend in shares of
Common Stock) into a greater or lesser number of shares of Common Stock,
then in each such case the number of votes per share to which holders of
shares of Series A Preferred Stock were entitled immediately prior to such
event shall be adjusted by multiplying such number by a fraction, the
numerator of which is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is the number of
shares of Common Stock that were outstanding immediately prior to such
event.
(b) Except as otherwise provided herein, in any other Certificate of
Designations creating a series of Preferred Stock or any similar stock, or
by law, the holders of shares of Series A Preferred Stock and the holders
of shares of Common Stock and any other capital stock of the Corporation
having general voting rights shall vote together as one class on all
matters submitted to a vote of stockholders of the Corporation.
(c) Except as set forth herein, or as otherwise provided by law,
holders of Series A Preferred Stock shall have no special voting rights and
their consent shall not be required (except to the extent they are entitled
to vote with holders of Common Stock as set forth herein) for taking any
corporate action.
Section 4. Certain Restrictions.
--------------------
(a) Whenever quarterly dividends or other dividends or distributions
payable on the Series A Preferred Stock as provided in Section 2 are in
arrears, thereafter and until all accrued and unpaid dividends and
distributions, whether or not declared, on shares of Series A Preferred
Stock outstanding shall have been paid in full, the Corporation shall not:
(i) declare or pay dividends, or make any other distributions, on
any shares of stock ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Series A Preferred Stock;
(ii) declare or pay dividends, or make any other distributions, on
any shares of stock ranking on a parity (either as to dividends or upon
liquidation, dissolution or winding up) with the Series A Preferred
Stock, except dividends paid ratably on the
<PAGE>
Series A Preferred Stock and all such parity stock on which dividends
are payable or in arrears in proportion to the total amounts to which
the holders of all such shares are then entitled;
(iii) redeem or purchase or otherwise acquire for consideration
shares of any stock ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Series A Preferred Stock,
provided that the Corporation may at any time redeem, purchase or
otherwise acquire shares of any such junior stock in exchange for shares
of any stock of the Corporation ranking junior (either as to dividends
or upon dissolution, liquidation or winding up) to the Series A
Preferred Stock; or
(iv) redeem or purchase or otherwise acquire for consideration any
shares of Series A Preferred Stock, or any shares of stock ranking on a
parity with the Series A Preferred Stock, except in accordance with a
purchase offer made in writing or by publication (as determined by the
Board of Directors) to all holders of such shares upon such terms as the
Board of Directors, after consideration of the respective annual
dividend rates and other relative rights and preferences of the
respective series and classes, shall determine in good faith will result
in fair and equitable treatment among the respective series or classes.
(b) The Corporation shall not permit any subsidiary of the Corporation
to purchase or otherwise acquire for consideration any shares of stock of
the Corporation unless the Corporation could, under paragraph (A) of this
Section 4, purchase or otherwise acquire such shares at such time and in
such manner.
Section 5. Reacquired Shares. Any shares of Series A Preferred Stock
-----------------
purchased or otherwise acquired by the Corporation in any manner whatsoever
shall be retired and cancelled promptly after the acquisition thereof. All such
shares shall upon their cancellation become authorized but unissued shares of
Preferred Stock and may be reissued as part of a new series of Preferred Stock
subject to the conditions and restrictions on issuance set forth herein, in the
Certificate of Incorporation, or in any other Certificate of Designations
creating a series of Preferred Stock or any similar stock or as otherwise
required by law.
<PAGE>
Section 6. Liquidation, Dissolution or Winding Up. Upon any
--------------------------------------
liquidation, dissolution or winding up of the Corporation, no distribution
shall be made (1) to the holders of shares of stock ranking junior (either
as to dividends or upon liquidation, dissolution or winding up) to the
Series A Preferred Stock unless, prior thereto, the holders of shares of
Series A Preferred Stock shall have received $100 per share, plus an amount
equal to accrued and unpaid dividends and distributions thereon, whether or
not declared, to the date of such payment, provided that the holders of
shares of Series A Preferred Stock shall be entitled to receive an
aggregate amount per share, subject to the provision for adjustment
hereinafter set forth, equal to 100 times the aggregate amount to be
distributed per share to holders of shares of Common Stock, or (2) to the
holders of shares of stock ranking on a parity (either as to dividends or
upon liquidation, dissolution or winding up) with the Series A Preferred
Stock, except distributions made ratably on the Series A Preferred Stock
and all such parity stock in proportion to the total amounts to which the
holders of all such shares are entitled upon such liquidation, dissolution
or winding up. In the event the Corporation shall at any time declare or
pay any dividend on the Common Stock payable in shares of Common Stock, or
effect a subdivision or combination or consolidation of the outstanding
shares of Common Stock (by reclassification or otherwise than by payment of
a dividend in shares of Common Stock) into a greater or lesser number of
shares of Common Stock, then in each such case the aggregate amount to
which holders of shares of Series A Preferred Stock were entitled
immediately prior to such event under the proviso in clause (1) of the
preceding sentence shall be adjusted by multiplying such amount by a
fraction the numerator of which is the number of shares of Common Stock
outstanding immediately after such event and the denominator of which is
the number of shares of Common Stock that were outstanding immediately
prior to such event.
Section 7. Consolidation, Merger, etc. In case the Corporation shall
--------------------------
enter into any consolidation, merger, combination or other transaction in
which the shares of Common Stock are exchanged for or changed into other
stock or securities, cash and/or any other property, then in any such case
each share of Series A Preferred Stock shall at the same time be similarly
exchanged or changed into an amount per share, subject to the provision for
adjustment hereinafter set forth, equal to 100 times the aggregate amount
of stock, securities, cash and/or any other property (payable in kind), as
the case may be, into which or for which each share of Common Stock is
changed or exchanged. In the event the Corporation shall at
<PAGE>
any time declare or pay any dividend on the Common Stock payable in shares
of Common Stock, or effect a subdivision or combination or consolidation of
the outstanding shares of Common Stock (by reclassification or otherwise
than by payment of a dividend in shares of Common Stock) into a greater or
lesser number of shares of Common Stock, then in each such case the amount
set forth in the preceding sentence with respect to the exchange or change
of shares of Series A Preferred Stock shall be adjusted by multiplying such
amount by a fraction, the numerator of which is the number of shares of
Common Stock outstanding immediately after such event and the denominator
of which is the number of shares of Common Stock that were outstanding
immediately prior to such event.
Section 8. No Redemption. The shares of Series A Preferred Stock
-------------
shall not be redeemable.
Section 9. Rank. The Series A Preferred Stock shall rank, with respect
----
to the payment of dividends and the distribution of assets, junior to all
series of any other class of the Corporation's Preferred Stock.
Section 10. Amendment. The Certificate of Incorporation of the
---------
Corporation shall not be amended in any manner which would materially alter
or change the powers, preferences or special rights of the Series A
Preferred Stock so as to affect them adversely without the affirmative vote
of the holders of at least two-thirds of the outstanding shares of Series A
Preferred Stock, voting together as a single class.
IN WITNESS WHEREOF, this certificate of Designations is executed on
behalf of the Corporation by its Senior Vice President and Chief Financial
Officer and attested by its Assistant Secretary this 27th day of February,
1996.
/s/ Lewis Hay, III
------------------------------
Lewis Hay, III
Senior Vice President
Chief Financial Officer
Attest:
/s/ George T. Megas
- ------------------------------
George T. Megas
Vice President and
Assistant Secretary
<PAGE>
EXHIBIT 3.2
AMENDED AND RESTATED
BY-LAWS
OF
U.S. FOODSERVICE
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office of the
Corporation in the State of Delaware is 1013 Centre Road, in the City of
Wilmington, Delaware 19805, in the County of New Castle. The name of its
registered agent at such address is Corporation Service Company.
Section 2. Other Offices. The Corporation may also have offices at
such other places both within and without the State of Delaware as the Board of
Directors may from time to time determine or the business of the Corporation may
require.
ARTICLE II
STOCKHOLDERS MEETINGS
Section 1. Places of Meetings. All meetings of stockholders shall be
held at such place or places in or outside of the State of Delaware as shall be
designated from time to time by the Board of Directors and stated in the notice
of meeting or waiver of notice thereof, subject to any provisions of the laws of
the State of Delaware.
Section 2. Annual Meetings. Unless otherwise determined from time to
time by the Board of Directors, the annual meeting of stockholders shall be held
each year for the election of directors and the transaction of such other
business as may properly come before the meeting at such date and time as may be
designated by the Board of Directors. Written notice of the time and place of
the annual meeting shall be given by mail to each stockholder entitled to vote
at such meeting, at the stockholder's address as it appears on the records of
the Corporation, not less than ten (10) nor more than sixty (60) days prior to
the scheduled date thereof.
Section 3. Special Meetings. A special meeting of the stockholders
of the Corporation may be called at any time by the Chairman of the Board or by
the Board of Directors pursuant to a resolution adopted by a majority of the
total number of directors which the Corporation would have if there were no
vacancies. Written notice of the date, time, place and specific purpose or
purposes for which such meeting is called shall be given by mail to each
stockholder entitled to vote thereat at such stockholder's address as it appears
on the records of the Corporation not less than (10) nor more than sixty (60)
days prior to the scheduled date thereof.
<PAGE>
Business transacted at any special meeting of stockholders shall be limited to
the purposes stated in the notice.
Section 4. Voting. At all meetings of stockholders, each stockholder
entitled to vote on the record date as determined under these By-Laws or, if not
so determined, as prescribed under the laws of the State of Delaware, shall be
entitled to one vote for each share of stock standing on record in such
stockholder's name, subject to any restrictions or qualifications set forth in
the Restated Certificate of Incorporation of the Corporation or any amendment
thereto (the "Restated Certificate of Incorporation").
Section 5. Quorum; Voting. At any stockholders meeting, a majority
of the number of shares of stock outstanding and entitled to vote thereat,
present in person or by proxy, shall constitute a quorum, but a smaller interest
may adjourn any meeting from time to time, and the meeting may be held as
adjourned without further notice, subject to such limitations as may be imposed
under the laws of the State of Delaware. When a quorum is present at any
meeting, the affirmative vote of the holders of a majority of the number of
shares of stock entitled to vote thereon, present in person or by proxy, shall
decide any question brought before such meeting unless such question is one upon
which a different vote is required by express provision of the Restated
Certificate of Incorporation, these By-Laws, the rules or regulations of the New
York Stock Exchange, Inc. or any law or other rule or regulation applicable to
the Corporation, in which case such express provision shall govern.
Section 6. Inspectors of Election; Opening and Closing the Polls.
The Board of Directors may, by resolution, appoint one or more inspectors, which
inspector or inspectors may include individuals who serve the Corporation in
other capacities, including, without limitation, as officers, employees, agents
or representatives of the Corporation, to act at a meeting of stockholders and
make a written report thereof. One or more persons may be designated as
alternative inspectors to replace any inspector who fails to act. If no
inspector or alternate has been appointed to act, or if all inspectors or
alternates who have been appointed are unable to act at a meeting of
stockholders, the chairman of the meeting shall appoint one or more inspectors
to act at the meeting. Each inspector, before discharging his or her duties,
shall take and sign an oath faithfully to execute the duties of inspector with
strict impartiality and according to the best of his or her ability. The
inspectors shall have the duties prescribed by the General Corporation Law of
the State of Delaware.
The chairman of the meeting shall fix and announce at the meeting the
date and time of the opening and the closing of the polls for each matter upon
which the stockholders will vote at the meeting.
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<PAGE>
Section 7. List of Stockholders. At least ten (10) days before every
meeting of stockholders, a complete list of the stockholders entitled to vote at
the meeting, arranged in alphabetical order and showing the address and the
number of shares registered in the name of each stockholder, shall be prepared
by the secretary or the transfer agent in charge of the stock ledger of the
Corporation. Such list shall be open for examination by any stockholder as
required by the laws of the State of Delaware. The stock ledger shall be the
only evidence as to who are the stockholders entitled to examine such list or
the books of the Corporation or to vote in person or by proxy at such meeting.
Section 8. Written Consent in Lieu of Meeting. Except as otherwise
provided for or fixed pursuant to the provisions of the Restated Certificate of
Incorporation relating to the rights of the holders of any series of preferred
stock, no action that is required or permitted to be taken by the stockholders
of the Corporation at any annual or special meeting of stockholders may be
effected by written consent of stockholders in lieu of a meeting of
stockholders.
ARTICLE III
BOARD OF DIRECTORS
Section 1. Number and Qualification. The authorized number of
directors that shall constitute the full Board of Directors of the Corporation
shall be fixed from time to time by resolution of the Board of Directors. The
Board of Directors, other than those directors elected by the holders of any
series of preferred stock, shall be divided into three classes, as nearly equal
in number as the then-authorized number of directors constituting the Board
permits, with the term of office of one class expiring each year and with each
director serving for a term ending at the third annual meeting of stockholders
of the Corporation following the annual meeting at which such director was
elected. One class of directors shall be initially elected for a term expiring
at the annual meeting of stockholders to be held in 1995, another class shall be
initially elected for a term expiring at the annual meeting of stockholders to
be held in 1996, and another class shall be initially elected for a term
expiring at the annual meeting of stockholders to be held in 1997. Members of
each class shall hold office until their successors are elected and qualified.
At each succeeding annual meeting of the stockholders of the Corporation, the
successors of the class of directors whose term expires at that meeting shall be
elected by a plurality vote of all votes cast at such meeting to hold office for
a term expiring at the annual meeting of stockholders held in the third year
following the year of their election. Directors need not be stockholders of the
Corporation. Notwithstanding any other provision of these By-Laws, (i) no
person who has attained 70 years of age may be elected to the Board, other than
pursuant to the Agreement and Plan of Merger dated as of June 30, 1997 among the
Corporation, Hudson Acquisition Corp. and Rykoff-Sexton, Inc., and (ii) any
director who attains 70 years of age after such director's election to the Board
may serve for the entire term of the class of the Board to which such director
was elected. The
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<PAGE>
requirements of the preceding sentence shall not apply to any director of the
Corporation elected to the Board prior to June 29, 1997.
Section 2. Powers. The business and affairs of the Corporation shall
be carried on by or under the direction of the Board of Directors, which shall
have all the powers authorized by the laws of the State of Delaware, subject to
such limitations as may be provided by the Restated Certificate of Incorporation
or these By-Laws. Except as otherwise expressly provided herein or in the
Restated Certificate of Incorporation, the vote of the majority of directors
present at a meeting at which a quorum is present shall be the act of the Board
of Directors.
Section 3. Compensation. The Board of Directors may from time to
time by resolution authorize the payment of fees or other compensation to the
directors for services as such to the Corporation, including, but not limited
to, fees for attendance at all meetings of the Board or of the executive or
other committees, and determine the amount of such fees and compensation.
Nothing herein contained shall be construed to preclude any director from
serving the Corporation in any other capacity and receiving compensation
therefor in amounts authorized or otherwise approved from time to time by the
Board.
Section 4. Meetings and Quorum. Meetings of the Board of Directors
may be held either in or outside of the State of Delaware. At all meetings of
the Board, a majority of the then authorized number of directors shall
constitute a quorum. If a quorum shall not be present at any meeting of the
Board of Directors, the directors present thereat may adjourn the meeting from
time to time, without notice other than announcement at the meeting, until a
quorum shall be present.
The first meeting of the Board of Directors after the election of a
new class of directors shall be held immediately after the annual meeting of
stockholders and at the same place, and no notice of such meeting shall be
necessary to the newly elected directors in order legally to constitute the
meeting, provided a quorum shall be present. In the event such meeting is not
held at such time and place, the meeting may be held at such time and place as
shall be specified in a notice given as hereinafter provided for special
meetings of the Board of Directors, or as shall be specified in a written waiver
signed by all the directors.
Regular meetings of the Board of Directors may be held without notice
at such time and at such place as shall from time to time be determined by the
Board. Notice of special meetings shall be given to each director on one (1)
day's notice to each director, either personally, by mail, telegram, facsimile,
personal delivery or similar means. Special meetings may be called by the
president or the Chairman of the Board of Directors and shall be called by the
president or secretary in the manner and on the notice set forth above upon the
written request of a
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<PAGE>
majority of the total number of directors which the Corporation would have if
there were no vacancies.
Notice of any meeting shall state the time and place of such meeting,
but need not state the purposes thereof unless otherwise required by the laws of
the State of Delaware, the Restated Certificate of Incorporation, these By-Laws
or the Board of Directors.
Section 5. Executive Committee. The Board of Directors may, by
resolution adopted by a majority of the total number of directors which the
Corporation would have if there were no vacancies, designate an Executive
Committee to exercise, subject to applicable provisions of law, all the powers
of the Board in the management of the business and affairs of the Corporation
when the Board is not in session, including without limitation the power to
declare dividends and to authorize the issuance of the Corporation's capital
stock, and may, by resolution similarly adopted, designate one or more other
committees, including such committees specified in Section 6 of this Article
III. The Executive Committee shall consist of two or more directors of the
Corporation. The Board may designate one or more directors as alternate members
of the Executive Committee, who may replace any absent member at any meeting of
the Executive Committee. The members of the Executive Committee present at any
meeting, whether or not constituting a quorum, may unanimously appoint another
member of the Board to act at the meeting in the place of any such absent
member. The Executive Committee shall keep written minutes of its proceedings
and shall report such proceedings to the Board when required.
A majority of the Executive Committee may determine its action and fix
the time and place of its meetings, unless the Board shall otherwise provide.
Notice of such meetings shall be given to each member of the Executive Committee
in the manner provided for in Section 4 of this Article III. The Board shall
have power at any time to fill vacancies in, to change the membership of, or to
dissolve the Executive Committee.
Section 6. Other Committees.
(a) The Board shall appoint the following standing committees, the
members of which shall serve at the pleasure of the Board: a Nominating
Committee, a Compensation Committee and an Audit Committee. The Board may
appoint such other committees among the directors of the Corporation as it deems
necessary and appropriate for the proper conduct of the Corporation's business
and may appoint such officers, agents or employees of the Corporation to assist
the committees of the Board as it deems necessary and appropriate. Meetings of
committees may be called by the chairman of the committee on one (1) day's
notice to each committee member, either personally, by mail, telegram, facsimile
or similar means and shall be called by the chairman of the committee in like
manner
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<PAGE>
and on like notice on the written request of a committee member. Each committee
shall keep regular minutes of its meetings and report the same to the Board of
Directors when required.
(b) One or more directors of the Corporation shall be appointed to act
as a Nominating Committee. The Nominating Committee shall be responsible for
proposing to the Board nominees for election as directors and shall possess and
may exercise such additional powers and authority as may be delegated to it by
the Board from time to time. The Nominating Committee shall report its actions
to the Board at the next meeting of the Board following such actions. Vacancies
in the membership of the Nominating Committee shall be filled by the Board of
Directors.
(c) One or more directors of the Corporation shall be appointed to act
as a Compensation Committee, each of whom shall be directors who are not also
officers or employees of the Corporation or its subsidiaries or any other
individual having a relationship which, in the opinion of the Board of
Directors, would interfere with the exercise of independent judgment in carrying
out the responsibilities of a director (each such director, an "Unaffiliated
Director"). The Compensation Committee shall be responsible for establishing
salaries, bonuses and other compensation for the executive officers of the
Corporation and for administering the Corporation's benefit plans, and shall
possess and may exercise such additional powers and authority as may be
delegated to it by the Board from time to time. The Compensation Committee
shall report its actions to the Board at the next meeting of the Board following
such actions. Vacancies in the membership of the Compensation Committee shall
be filled by the Board of Directors.
(d) One or more Unaffiliated Directors of the Corporation shall be
appointed to act as an Audit Committee. The Audit Committee shall have general
oversight responsibility with respect to the Corporation's financial reporting.
In performing its oversight responsibility, the Committee shall make
recommendations to the Board of Directors as to the selection, retention, or
change in the independent accountants of the Corporation, review with the
independent accountants the scope of their examination and other matters
(relating to both audit and non-audit activities), and review generally the
internal auditing procedures of the Corporation. In undertaking the foregoing
responsibilities, the Audit Committee shall have unrestricted access, if
necessary, to personnel of the Corporation and documents and shall be provided
with the resources and assistance necessary to discharge its responsibilities,
including periodic reports from management assessing the impact of regulation,
accounting, and reporting of other significant matters that may affect the
Corporation. The Audit Committee shall review the financial reporting and
adequacy of internal controls of the Corporation, consult with the internal
auditors and certified public accountants, and from time to time, but not less
than annually, report to the Board. Vacancies in the membership of the Audit
Committee shall be filled by the Board of Directors.
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<PAGE>
Section 7. Conference Telephone Meetings. Any one or more members of
the Board of Directors or any committee thereof may participate in meetings by
means of a conference telephone or similar communications equipment and such
participation in a meeting shall constitute presence in person at the meeting.
Section 8. Action Without Meetings. Any action required or permitted
to be taken at any meeting of the Board of Directors or any committee thereof
may be taken without a meeting to the extent and in the manner authorized by the
laws of the State of Delaware.
Section 9. Transactions With Affiliates. No transaction, agreement
or understanding between the Corporation (or any of its subsidiaries) and any
affiliate of the Corporation that, along with its affiliates and associates,
beneficially owns 10% or more of the outstanding common stock of the Corporation
shall be valid and effective unless such transaction, agreement or understanding
shall have been approved or adopted or authorized, as the case may be, by the
Board of Directors or the Executive Committee.
ARTICLE IV
OFFICERS
Section 1. Titles and Election. The officers of the Corporation
shall be the president, a secretary and a treasurer, who shall initially be
elected as soon as convenient by the Board of Directors and thereafter, in the
absence of earlier resignations or removals, shall be elected at the first
meeting of the Board following the annual meeting of stockholders. Each officer
shall hold office at the pleasure of the Board except as may otherwise be
approved by the Board, or until such officer's earlier resignation, removal
under these By-Laws or other termination of employment. Any person may hold
more than one office if the duties can be consistently performed by the same
person, to the extent permitted by the laws of the State of Delaware.
The Board of Directors, in its discretion, may also at any time elect
or appoint a Chairman of the Board of Directors, who shall be a director, a Vice
Chairman of the Board, who shall be a director, and one or more vice presidents,
assistant secretaries and assistant treasurers and such other officers as it may
deem advisable, each of whom shall hold office at the pleasure of the Board,
except as may otherwise be approved by the Board, or until such officer's
earlier resignation, removal or other termination of employment, and shall have
such authority and shall perform such duties as shall be prescribed or
determined from time to time by the Board or, in case of officers other than the
Chairman of the Board or the Vice Chairman of the Board, if not so prescribed or
determined by the Board, as the chief executive officer or the then senior
executive officer may prescribe or determine. The Board of Directors may
require any officer or other
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<PAGE>
employee or agent to give bond for the faithful performance of duties in such
form and with such sureties as the Board may require.
Section 2. Duties. Subject to such extension, limitations, and other
provisions as the Board of Directors or these By-Laws may from time to time
prescribe or determine, the following officers shall have the following powers
and duties:
(a) Chairman, Vice Chairman and Chief Executive Officer. The Chairman
of the Board, when present, shall preside at all meetings of the stockholders
and of the Board of Directors and shall be charged with general supervision of
the management and policy of the Corporation, and shall have such other powers
and perform such other duties as the Board of Directors may prescribe from time
to time. The Chairman of the Board shall be the chief executive officer of the
Corporation, shall exercise the powers and authority and perform all of the
duties commonly incident to such office and shall perform such other duties as
chief executive officer as the Board of Directors shall specify from time to
time. The Vice Chairman of the Board of Directors shall, during the absence at
a meeting of stockholders of the Corporation or of the Board, or disability, of
the Chairman of the Board, have the powers and perform the duties of the
Chairman of the Board and shall also perform such other duties and may exercise
such other powers as from time to time may be assigned to him by the Board.
(b) President. The president shall act in a general executive
capacity, shall report to the Chairman of the Board and chief executive officer
and shall assist the Chairman of the Board in the administration and operation
of the Corporation's business and general supervision of its policies and
affairs. The president shall, in the absence at a meeting of stockholders of
the Corporation or of the Board, or because of the inability to act, of the
Chairman of the Board and the Vice Chairman of the Board, perform all duties of
the Chairman of the Board and preside at all meetings of the stockholders and of
the Board of Directors, if he is a director.
(c) Vice President. The vice president or vice presidents shall
perform such duties as may be assigned to them from time to time by the Board of
Directors or by the president if the Board does not do so. In the absence or
disability of the president, the vice presidents in order of seniority may,
unless otherwise determined by the Board, exercise the powers and perform the
duties pertaining to the office of president, except that if one or more senior
vice presidents has been elected or appointed, the person holding such office in
order of seniority shall exercise the powers and perform the duties of the
office of president.
(d) Secretary. The secretary, or in the secretary's absence, an
assistant secretary shall keep the minutes of all meetings of stockholders and
of the Board of Directors, give and serve all notices, attend to such
correspondence as may
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<PAGE>
be assigned to such officer, keep in safe custody the seal of the Corporation,
and affix such seal to all such instruments properly executed as may require it,
and shall have such other duties and powers as may be prescribed or determined
from time to time by the Board of Directors or by the president if the Board
does not do so.
(e) Treasurer. The treasurer, subject to the order of the Board of
Directors, shall have the care and custody of the moneys, funds, valuable papers
and documents of the Corporation (other than such officer's own bond, if any,
which shall be in the custody of the president), and shall have, under the
supervision of the Board of Directors, all the powers and duties commonly
incident to such office. The treasurer shall deposit all funds of the
Corporation in such bank or banks, trust company or trust companies, or with
such firm or firms doing a banking business as may be designated by the Board of
Directors or by the president if the Board does not do so. The treasurer may
endorse for deposit or collection all checks, notes and similar instruments
payable to the Corporation or to its order. The treasurer shall keep accurate
books of account of the Corporation's transactions, which shall be the property
of the Corporation and, together with all of the property of the Corporation in
such officer's possession, shall be subject at all times to the inspection and
control of the Board of Directors. The treasurer shall be subject in every way
to the order of the Board of Directors, and shall render to the Board of
Directors and/or the president of the Corporation, whenever they may require it,
an account of all transactions and of the financial condition of the
Corporation. In addition to the foregoing, the treasurer shall have such duties
as may be prescribed or determined from time to time by the Board of Directors
or by the president if the Board does not do so.
(f) Delegation of Authority. The Board of Directors may at any time
delegate the powers and duties of any officer for the time being to any other
officer, director or employee.
(g) Compensation. The compensation of the Chairman of the Board, the
Vice Chairman of the Board and the chief executive officer shall be fixed by the
Board of Directors, and the fact that any officer is a director shall not
preclude such officer from receiving compensation or from voting upon the
resolution providing the same. The compensation of all other officers of the
Corporation shall be fixed by the chief executive officer or, during his absence
or disability, by the Board.
ARTICLE V
RESIGNATIONS AND VACANCIES
Section 1. Resignations. Any director or officer may resign at any
time by giving written notice thereof to the Board of Directors, the president
or the secretary. Any such resignation shall take effect at the time specified
therein or, if
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the time be not specified, upon receipt thereof; and unless otherwise specified
therein, the acceptance of any resignation shall not be necessary to make it
effective.
Section 2. Vacancies.
(a) Directors. Except for the rights of the holders of any series of
preferred stock to elect additional directors, newly created directorships
resulting from any increase in the authorized number of directors and any
vacancies on the Board of Directors resulting from death, resignation,
disqualification, removal, or other cause shall be filled only by the
affirmative vote of a majority of the remaining directors then in office, even
though less than a quorum of the Board of Directors. Any director elected in
accordance with the preceding sentence shall hold office for the remainder of
the full term of the class of directors in which the new directorship was
created or in which the vacancy occurred and until such director's successor is
duly elected and has been qualified. The directors also may reduce the
authorized number of directors by the number of vacancies on the Board, provided
that such reduction does not reduce the Board to less than the minimum
authorized by the laws of the State of Delaware. No decrease in the number of
directors constituting the Board of Directors shall shorten the term of any
incumbent director.
(b) Officers. The Board of Directors may at any time or from time to
time fill any vacancy among the officers of the Corporation.
ARTICLE VI
CAPITAL STOCK
Section 1. Certificate of Stock. Every stockholder shall be entitled
to a certificate or certificates for shares of the capital stock of the
Corporation in such form as may be prescribed or authorized by the Board of
Directors, duly numbered and setting forth the number and kind of shares
represented thereby. Such certificates shall be signed by the Chairman of the
Board, the president or a vice president and by the treasurer or an assistant
treasurer or by the secretary or an assistant secretary. Any or all of such
signatures may be in facsimile if and to the extent authorized under the laws of
the State of Delaware.
In case any officer, transfer agent or registrar who has signed or
whose facsimile signature has been placed on a certificate has ceased to be such
officer, transfer agent or registrar before the certificate has been issued,
such certificate may nevertheless be issued and delivered by the Corporation
with the same effect as if such person were such officer, transfer agent or
registrar at the date of issue.
Section 2. Transfer of Stock. Shares of the capital stock of the
Corporation shall be transferable only upon the books of the Corporation upon
the surrender of the certificate or certificates properly assigned and endorsed
for
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transfer. If the Corporation has a transfer agent or agents or transfer clerk
and registrar of transfers acting on its behalf, the signature of any officer or
representative thereof may be in facsimile.
The Board of Directors may appoint a transfer agent and one or more
co-transfer agents and a registrar and one or more co-registrars of transfer and
may make or authorize the transfer agents to make all such rules and regulations
deemed expedient concerning the issue, transfer and registration of shares of
stock.
Section 3. Record Dates.
(a) In order that the Corporation may determine the stockholders
entitled to notice of or to vote at any meeting of stockholders or any
adjournment thereof or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock or for the purpose of any
other lawful action, the Board of Directors may fix in advance a record date
which, in the case of a meeting, shall not be less than ten (10) nor more than
sixty (60) days prior to the scheduled date of such meeting and which, in the
case of any other action, shall be not more than the maximum number of days
prior to any such action permitted by the laws of the State of Delaware.
(b) If no such record date is fixed by the Board, the record date
shall be that prescribed by the laws of the State of Delaware.
(c) A determination of stockholders of record entitled to notice of or
to vote at a meeting of stockholders shall apply to any adjournment of the
meeting; provided, however, that the Board of Directors may fix a new record
date for the adjourned meeting.
Section 4. Lost Certificates. In case of loss or mutilation or
destruction of a stock certificate, a duplicate certificate may be issued upon
such terms as may be determined or authorized by the Board of Directors or by
the president if the Board does not do so.
ARTICLE VII
FISCAL YEAR, BANK DEPOSITS, CHECK, ETC.
Section 1. Fiscal Year. The fiscal year of the Corporation shall
commence or end at such time as the Board of Directors may designate.
Section 2. Bank Deposits, Checks, etc. The funds of the Corporation
shall be deposited in the name of the Corporation or of any division thereof in
such banks or trust companies in the United States or elsewhere as may be
designated from time to time by the Board of Directors, or by such officer or
officers as the Board may authorize to make such designations.
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All checks, drafts or other orders for the withdrawal of funds from
any bank account shall be signed by such person or persons as may be designated
from time to time by the Board of Directors. The signatures on checks, drafts
or other orders for the withdrawal of funds may be in facsimile if authorized in
the designation.
ARTICLE VIII
BOOKS AND RECORDS
Section 1. Place of Keeping Books. Unless otherwise expressly
required by the laws of the State of Delaware, the books and records of the
Corporation may be kept outside of the State of Delaware.
Section 2. Examination of Books. Except as may otherwise be provided
by the laws of the State of Delaware, the Restated Certificate of Incorporation
or these By-Laws, the Board of Directors shall have power to determine from time
to time whether and to what extent and at what times and places and under what
conditions any of the accounts, records and books of the Corporation are to be
open to the inspection of any stockholder. No stockholder shall have any right
to inspect any account or book or document of the Corporation except as
prescribed by statute or authorized by express resolution of the stockholders or
of the Board of Directors.
ARTICLE IX
NOTICES
Section 1. Requirements of Notice. Whenever notice is required to be
given by statute, the Restated Certificate of Incorporation or these By-Laws, it
shall not mean personal notice unless so specified, but such notice may be given
in writing by depositing the same in a post office, letter box, or mail chute
postpaid and addressed to the person to whom such notice is directed at the
address of such person on the records of the Corporation, and such notice shall
be deemed given at the time when the same shall be thus mailed.
Section 2. Waivers. Any stockholder, director or officer may, in
writing or by telegram or cable, at any time waive any notice or other formality
required by statute, the Restated Certificate of Incorporation or these By-Laws.
Such waiver of notice, whether given before or after any meeting or action,
shall be deemed equivalent to notice. Presence of a stockholder either in
person or by proxy at any stockholders meeting and presence of any director at
any meeting of the Board of Directors shall constitute a waiver of such notice
as may be required by any statute, the Restated Certificate of Incorporation or
these By-Laws.
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ARTICLE X
SEAL
The corporate seal of the Corporation shall consist of two concentric
circles between which shall be the name of the Corporation and the date of its
incorporation, and in the center of which shall be inscribed "Corporate Seal,
Delaware."
ARTICLE XI
POWERS OF ATTORNEY
The Board of Directors may authorize one or more of the officers of
the Corporation to execute powers of attorney delegating to named
representatives or agents power to represent or act on behalf of the
Corporation, with or without power of substitution.
In the absence of any action by the Board, the president, any vice
president, the secretary or the treasurer of the Corporation may execute for and
on behalf of the Corporation waivers of notice of stockholders meetings and
proxies for such meetings in any company in which the Corporation may hold
voting securities.
ARTICLE XII
INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 1. Definitions. As used in this article, the term "person"
means any past, present or future director or officer of the Corporation or any
subsidiary or operating division thereof.
Section 2. Indemnification Granted. The Corporation shall indemnify,
to the full extent and under the circumstances permitted by the General
Corporation Law of the State of Delaware in effect from time to time, any person
as defined above, made or threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative, by reason of the fact that such person is or
was a director or officer of the Corporation or a subsidiary or operating
division thereof, or is or was an employee or agent of the Corporation, or is or
was serving at the specific request of the Corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, or by reason of any action alleged to have been taken or
omitted in such capacity, against costs, charges, expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by such person or on such person's behalf in connection with such
action, suit or proceeding and any appeal therefrom, if such person acted in
good faith and in a manner he or she reasonably believed to be in or not opposed
to the best interests of the Corporation, and, with respect to any criminal
action or proceeding, had no reasonable cause to believe that his or her conduct
was unlawful. The termination of any action, suit, or proceeding by
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judgment, order, settlement, conviction, or upon a plea of nolo contendere or
its equivalent, shall not, of itself, create a presumption that the person did
not act in good faith and in a manner which he or she reasonably believed to be
in or not opposed to the best interests of the Corporation, and, with respect to
any criminal action or proceeding, had reasonable cause to believe that such
conduct was unlawful.
Section 3. Requirements for Indemnification. The Corporation shall
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action or suit by or in the right of the
Corporation to procure a judgment in its favor by reason of the fact that such
person is or was a director, officer, employee or agent of the Corporation, or a
subsidiary thereof or a designated officer of an operating division of the
Corporation, or is or was serving at the specific request of the Corporation as
a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, or by reason of any action alleged to
have been taken or omitted in such capacity, against costs, charges and expenses
(including attorneys' fees) actually and reasonably incurred by such person or
on such person's behalf in connection with the defense or settlement of such
action or suit and any appeal therefrom, if such person acted in good faith and
in a manner that such person reasonably believed to be in or not opposed to the
best interest of the Corporation except that no indemnification shall be made in
respect of any claim, issue or matter as to which such person shall have been
adjudged to be liable to the Corporation unless and only to the extent that the
Court of Chancery of Delaware or the court in which such action or suit was
brought shall determine upon application that, despite the adjudication of such
liability but in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such costs, charges and expenses
which the Court of Chancery or such other court shall deem proper.
Section 4. Success on Merits of Any Action. Notwithstanding any
other provision of this Article, to the extent that a director, officer,
employee or agent of the Corporation or any subsidiary or operating division
thereof has been successful on the merits or otherwise, including, without
limitation, the dismissal of an action without prejudice, in defense of any
action, suit or proceeding referred to in this Article, or in defense of any
claim, issue or matter therein, such person shall be indemnified against all
costs, charges and expenses (including attorneys' fees) actually and reasonably
incurred by such person or on such person's behalf in connection therewith.
Section 5. Determination of Standard of Conduct. Any indemnification
under Sections 2 and 3 of this Article (unless ordered by a court) shall be paid
by the Corporation only after a determination has been made (1) by the Board of
Directors by a majority vote of a quorum consisting of directors who were not
parties to such action, suit or proceeding, or (2) if such quorum is not
obtainable, or even if obtainable, a quorum of disinterested directors so
directs, by
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<PAGE>
independent legal counsel in a written opinion, or (3) by the stockholders, that
indemnification of the director, officer, employee or agent is proper in the
circumstances of the specific case because such person has met the applicable
standard of conduct set forth in Sections 2 and 3 of this Article.
Section 6. Advance Payment; Representation by Corporation. Costs,
charges and expenses (including attorneys' fees) incurred by a person referred
to in Sections 2 and 3 of this Article in defending a civil or criminal action,
suit or proceeding shall be paid by the Corporation in advance of the final
disposition of such action, suit or proceeding; provided, however, that the
payment of such costs, charges and expenses incurred by a director or officer in
such capacity as officer or director (and not in any other capacity and which
service was or is rendered by such person while a director or officer) in
advance of the final disposition of such action, suit or proceeding shall be
made only upon receipt of an undertaking by or on behalf of the director or
officer to repay all amounts so advanced in the event that it shall ultimately
be determined that such director or officer is not entitled to be indemnified by
the Corporation as authorized in this Article. Such costs, charges and expenses
incurred by other employees and agents may be so paid upon such terms and
conditions, if any, as the Board of Directors deems appropriate. The
Corporation may, in the manner set forth above, and upon approval of such
director, officer, employee or agent, authorize the Corporation's counsel to
represent such person, in any action, suit or proceeding, whether or not the
Corporation is a party to such action, suit or proceeding.
Section 7. Procedure for Obtaining Indemnity. Any indemnification
under Sections 2, 3 and 4, or advance of costs, charges and expenses under
Section 6, of this Article shall be made promptly, and in any event within sixty
(60) days, of the written notice of the director, officer, employee or agent.
The right to indemnification or advances as granted by this Article shall be
enforceable by the director, officer, employee or agent in any court of
competent jurisdiction if the Corporation denies such request, in whole or in
part, or if no disposition thereof is made within sixty (60) days. Such
person's costs and expenses incurred in connection with successfully
establishing a right to indemnification, in whole or in part, in any action
shall also be indemnified by the Corporation. It shall be a defense to any such
action (other than an action brought to enforce a claim for the advance of
costs, charges and expenses under Section 6 of this Article where the required
undertaking, if any, has been received by the Corporation) that the claimant has
not met the standard of conduct set forth in Section 2 or 3 of this Article, but
the burden of proving such defense shall be on the Corporation. Neither failure
of the Corporation (including its Board of Directors, its independent legal
counsel, and its stockholders) to have made a determination that indemnification
of the claimant is proper in the circumstances because such person has met the
applicable standard of conduct set forth in Section 2 or 3 of this Article, nor
the fact that there has been an actual determination by the Corporation
(including its Board of Directors, its independent legal counsel, and its
stockholders) that the claimant
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<PAGE>
has not met such applicable standard of conduct, shall be a defense to the
action or create a presumption that the claimant has not met the applicable
standard of conduct.
Section 8. Indemnification Not Exclusive. This right of
indemnification shall not be deemed exclusive of any other rights to which a
person indemnified herein may be entitled by law, agreement, vote of
stockholders or disinterested directors or otherwise, and shall continue as to a
person who has ceased to be a director, officer, designated officer, employee or
agent and shall inure to the benefit of the heirs, executors, administrators and
other legal representatives of such person. It is not intended that the
provisions of this Article be applicable to, and they are not to be construed as
granting indemnity with respect to, matters as to which indemnification would be
in contravention of the laws of Delaware or of the United States of America,
whether as a matter of public policy or pursuant to statutory provision.
Section 9. Invalidity of Certain Provisions. If this Article or any
portion hereof shall be invalidated on any ground by any court of competent
jurisdiction, then the Corporation shall nevertheless indemnify each director,
officer, employee and agent of the Corporation or any subsidiary or operating
division thereof as to costs, charges and expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement with respect to any action, suit
or proceeding, whether civil, criminal, administrative or investigative,
including any action by or in the right of the Corporation, to the full extent
permitted by any applicable portion of this Article that shall not have been
invalidated and to the full extent permitted by applicable law.
Section 10. Miscellaneous. The Board of Directors may also on behalf
of the Corporation grant indemnification to any individual other than a person
defined herein to such extent and in such manner as the Board in its sole
discretion may from time to time and at any time determine.
ARTICLE XIII
AMENDMENTS
These By-Laws may be adopted, amended or repealed by the affirmative
vote of a majority of the directors then in office.
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EXHIBIT 5.1
March 9, 1998
U.S. Foodservice
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 337,239 shares of common stock (the "Common Stock") of
U.S. Foodservice, 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 is 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 Securities and Exchange Commission
thereunder.
Very truly yours,
Miles & Stockbridge P.C.
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 (No. 333-41795) of
U.S. Foodservice (formerly JP Foodservice, Inc.) 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-36
of U.S. Foodservice Inc.'s Form 8-K/A-1 dated March 9, 1998. We also consent
to the references to us under the heading "Experts" in
such Prospectus.
PRICE WATERHOUSE LLP
Linthicum, Maryland
March 6, 1998
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
The Board of Directors
U.S. Foodservice:
We consent to the incorporation by reference in this registration statement
on Form S-3 (No. 333-41795) of U.S. Foodservice (formerly JP Foodservice, Inc.)
of our report dated March 4, 1998, relating to the consolidated balance sheet
of U.S. Foodservice and Subsidiaries as of June 28, 1997 and the related
consolidated statement of operations, stockholders' equity, and cash flows for
the year then ended, which report appears in the Form 8-K/A of U.S. Foodservice
dated March 9, 1998 and to the reference to our firm under the heading "Experts"
in such registration statement.
KPMG PEAT MARWICK LLP
Baltimore, Maryland
March 6, 1998
<PAGE>
CONSENT OF INDEPENDENT ACCOUNTANTS
The Board of Directors
Valley Industries, Inc. and
Z Leasing Company:
We consent to the incorporation by reference in the registration statement of
U.S. Foodservice (formerly JP Foodservice, Inc.) on Form S-3 (No. 333-41795) 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, 1995 and 1994 and the related combined
statements of earnings, stockholders' and partners' equity, and cash flows for
each of the years in the three-year period ended January 31, 1996, which report
appears in the Form 8-K/A of U.S. Foodservice dated March 9, 1998 and to the
reference to our firm under the heading "Experts" in such registration
statement of U.S. Foodservice.
KPMG PEAT MARWICK LLP
Baltimore, Maryland
March 6, 1998
<PAGE>
EXHIBIT 23.3
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Pre-Effective Amendment No. 1 to the Registration
Statement on Form S-3 (No. 333-41795) of our report dated August 14, 1997,
originally included in Rykoff-Sexton, Inc.'s Form 10-K, as amended by
Form 10-K/A, for the fiscal year ended June 28, 1997, and subsequently included
in U.S. Foodservice's (formerly JP Foodservice, Inc.) Form 8-K/A-1 dated
March 9, 1998, and to all references to our Firm included in this
Registration Statement.
/s/ ARTHUR ANDERSEN LLP
Philadelphia, Pennsylvania
March 9, 1998
<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, (i) a Registration Statement on Form S-3 (or other
applicable form), (ii) all amendments thereto (including post-effective
amendments), and (iii) all other documents that may be required in connection
therewith (including a Registration Statement filed under Rule 462(b) of the
Securities Act of 1933, as amended), for the purpose of registering under the
Securities Act of 1933 up to 375,000 shares of the Corporation's Common Stock
which may be sold by selling stockholders for sale to the public. By execution
of this Power of Attorney, the undersigned ratifies and confirms all that each
of the aforesaid attorneys-in-fact, or his substitute or substitutes, may do or
cause to be done by virtue hereof.
Signature Title Date
--------- ----- ----
/s/ James L. Miller
- --------------------- Chairman of the Board, January 22, 1998
James L. Miller President and Chief
Executive Officer
(Principal Executive
Officer)
/s/ Lewis Hay, III
- --------------------- Director, Senior Vice January 22, 1998
Lewis Hay, III President and Chief
Financial Officer
(Principal Financial
Officer)
/s/ George T. Megas
- --------------------- Vice President - Finance January 22, 1998
George T. Megas (Principal Accounting
Officer)
/s/ Michael J. Drabb
- --------------------- Director January 22, 1998
Michael J. Drabb
/s/ David M. Abramson
- --------------------- Director January 22, 1998
David M. Abramson
<PAGE>
/s/ Eric E. Glass
- ------------------------------ Director January 22, 1998
Eric E. Glass
/s/ Mark P. Kaiser
- ------------------------------ Director January 22, 1998
Mark P. Kaiser
/s/ Paul I. Latta, Jr.
- ------------------------------ Director January 22, 1998
Paul I. Latta, Jr.
/s/ Dean R. Silverman
- ------------------------------ Director January 22, 1998
Dean R. Silverman
/s/ Jeffrey D. Serkes
- ------------------------------ Director January 22, 1998
Jeffrey D. Serkes
/s/ James P. Miscoll
- ------------------------------ Director January 22, 1998
James P. Miscoll
/s/ Bernard Sweet
- ------------------------------ Director January 22, 1998
Bernard Sweet
/s/ James I. Maslon
- ------------------------------ Director January 22, 1998
James I. Maslon
/s/ Neil I. Sell
- ------------------------------ Director January 22, 1998
Neil I. Sell
/s/ Albert J. Fitzgibbons, III
- ------------------------------ Director January 22, 1998
Albert J. Fitzgibbons, III
/s/ Matthias B. Bowman
- ------------------------------ Director January 22, 1998
Matthias B. Bowman
