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FORM 8-A/A
AMENDMENT NO. 1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
U.S. FOODSERVICE
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(Exact name of registrant as specified in its charter)
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Delaware 52-1634568
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(State of incorporation or organization) (I.R.S. Employer Identification No.)
9755 Patuxent Woods Drive, Columbia, Maryland 21046
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(Address of principal executive offices) (Zip Code)
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If this form relates to the registration of a class of securities pursuant to
Section 12(b) of the Exchange Act and is effective pursuant to General
Instruction A.(c), check the following box. [x]
If this form relates to the registration of a class of securities pursuant to
Section 12(g) of the Exchange Act and is effective pursuant to General
Instruction A.(d), check the following box. [_]
Securities Act registration statement file number to which this form relates:
___________________ (if applicable)
Securities to be registered pursuant to Section 12(b) of the Act:
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Title of each class Name of exchange on which
to be so registered each class is to be registered
Common Stock ($.01 par value per share) New York Stock Exchange, Inc.
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Securities to be registered pursuant to Section 12(g) of the Act:
None
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(Title of class)
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(Title of class)
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Item 1. Description of Registrant's Securities to be Registered.
As of the date of this amendment, U.S. Foodservice's authorized capital
stock consists of 150,000,000 shares of common stock, par value $.01 per share,
and 5,000,000 shares of preferred stock, par value $.01 per share. No shares of
preferred stock are outstanding. No series of preferred stock has been
designated other than the shares of Series A Junior Participating Preferred
Stock referred to below. From time to time, we may amend our certificate of
incorporation to increase our authorized capital stock available for issuance
for purposes our board of directors may determine to be in the best interests of
U.S. Foodservice and our stockholders. These purposes could include additional
offerings of shares for cash and acquisitions of foodservice businesses, as well
as the declaration of stock splits and stock dividends and other general
corporate purposes.
The following summary description of our capital stock is not complete and
is subject to the provisions of the U.S. Foodservice certificate of
incorporation and bylaws and the provisions of applicable law. Copies of our
certificate of incorporation and bylaws have been filed or incorporated by
reference as exhibits to this registration statement on Form 8-A.
Common Stock
Subject to any prior rights of any holders of preferred stock then
outstanding, holders of common stock are entitled to such dividends as may be
declared from time to time by the U.S. Foodservice board of directors out of
funds legally available for dividend payments. Each holder of common stock is
entitled to one vote for each share owned by the holder on all matters
submitted to a vote of common stockholders. Shares of common stock are not
entitled to any cumulative voting rights. If there is a liquidation,
dissolution or winding up of U.S. Foodservice, holders of common stock are
entitled to share equally and ratably in any assets remaining after the payment
of all debt and other liabilities, subject to the prior rights, if any, of
holders of preferred stock. Holders of common stock have no preemptive or other
subscription or conversion rights. The common stock is not subject to
redemption.
Preferred Share Purchase Rights
Each outstanding share of common stock has or will have attached to it one
preferred share purchase right, which we refer to as a "right." Under our
shareholder rights plan, the rights generally will be triggered upon the
acquisition, or actions that would result in the acquisition, of 10% or more of
our common stock by any person or group. For investors eligible to report their
ownership of our common stock on Schedule 13G under the Securities Exchange Act
of 1934, the rights generally will be triggered if such investors acquired, or
took actions that would result in the acquisition of, 15% or more of the common
stock. If triggered, these rights would entitle each registered holder of our
common stock other than the acquiror to purchase, for the exercise price of each
right held by such stockholder, one one-hundredth of a share of Series A Junior
Participating Preferred Stock of U.S. Foodservice. In addition, if triggered,
these rights would entitle our stockholders other than the acquiror to purchase,
instead of the preferred stock and for the exercise price, shares of our common
stock having a market value of two times the exercise price. Further, if a
company acquires us in a merger or other business combination, or if we sell
more than 50% of our consolidated assets or earning power, these rights will
entitle our stockholders other than the acquiror to purchase, for the exercise
price, shares of the common stock of the acquiring company having a market value
of two times the exercise price. The terms of the rights are further described
in a registration statement on Form 8-A which we have filed with the SEC.
Our shareholder rights plan may discourage a third party from making a
proposal to acquire U.S. Foodservice which we have not solicited or do not
approve, even if the acquisition would be beneficial to our stockholders. As a
result, our stockholders who wish to participate in such a transaction may not
have an opportunity to do so.
Preferred Stock
Under the U.S. Foodservice certificate of incorporation, the board of
directors has the authority, without further action by U.S. Foodservice
stockholders, to issue up to 5,000,000 shares of preferred stock in one or more
series and to fix the voting powers, designations, preferences and the relative
participating, optional or other special rights and qualifications, limitations
and restrictions of each series, including dividend rights, conversion rights,
voting rights, terms of redemption, liquidation preferences and the number of
shares constituting any series. To date, the board of directors has fixed only
the terms of the preferred stock, which it has designated as Series A Junior
Participating Preferred Stock, issuable upon exercise of the rights. Because
the board of directors has the power to establish the preferences and rights of
the shares of any additional series of preferred stock, it may afford holders
of any preferred stock preferences, powers and rights, including voting rights,
senior to the rights of holders of the common stock, which could adversely
affect the holders of the common stock.
Anti-Takeover Effect of Our Charter and Bylaw Provisions
The U.S. Foodservice certificate of incorporation and bylaws contain
certain provisions that could make it more difficult to consummate an
acquisition of U.S. Foodservice by means of a tender offer, a proxy contest or
otherwise.
Classified Board of Directors. The certificate of incorporation and bylaws
provide that the board of directors will be divided into three classes of
directors, with the classes as nearly equal in number as possible. As a result,
approximately one-third of the board of directors will be elected each year. The
classification of the board of directors will make it more difficult for an
acquiror or for other stockholders to change the composition of the board of
directors. The certificate of incorporation provides that, subject to any rights
of holders of preferred stock to elect additional directors under specified
circumstances, the number of directors will be fixed in the manner provided in
the bylaws. The bylaws provide that the number of directors will be fixed from
time to time exclusively by resolution adopted by directors constituting a
majority of the total number of directors that U.S. Foodservice would have if
there were no vacancies on the board of directors. In addition, the certificate
of incorporation provides that, subject to any rights of holders of preferred
stock, and unless the board of directors otherwise determines, newly created
directorships resulting from any increase in the authorized number of directors
and any vacancies on the board of directors will be filled only by the
affirmative vote of a majority of the remaining directors, though less than a
quorum.
No Stockholder Action by Written Consent. The certificate of
incorporation provides that, subject to the rights of any holders of preferred
stock to act by written consent instead of a meeting, stockholder action
may be taken only at an annual meeting or special meeting of stockholders and
may not be taken by written consent instead of a meeting. Failure to satisfy
any of the requirements for a stockholder meeting could delay, prevent or
invalidate stockholder action.
Stockholder Advance Notice Procedure. The certificate of incorporation
establishes an advance notice procedure for stockholders to make nominations of
candidates for election as directors or to bring other business before an annual
meeting of U.S. Foodservice stockholders. The stockholder notice procedure
provides that only persons that are nominated for election as directors by a
majority of the board of directors, or a duly authorized board committee, or by
a stockholder of record who has given timely written notice to the secretary of
U.S. Foodservice before the meeting at which directors are to be elected, will
be eligible for election as directors. This notice is required to include
specified information about the stockholder and each proposed director nominee,
a description of all arrangements or understandings between the stockholder and
each proposed nominee and any other persons, other information regarding each
proposed nominee that would be required to be included in a proxy statement
filed under SEC rules and regulations, and the written consent of each proposed
nominee to serve as a director if elected. The stockholder notice procedure also
provides that the only business that may be conducted at an annual meeting is
business which has been brought before the meeting by, or at the direction of,
the board of directors or by a stockholder who has given timely written notice
to the secretary of U.S. Foodservice. This notice is required to include a brief
description of the business desired to be brought before the meeting and the
reasons for conducting that business at the meeting, any material interest of
the stockholder in that business, and specified information about the
stockholder and the stockholder's ownership of U.S. Foodservice capital stock.
Section 203 of the Delaware General Corporation Law
U.S. Foodservice is subject to section 203 of the Delaware general
corporation law, which, with specified exceptions, prohibits a Delaware
corporation from engaging in any "business combination" with any "interested
stockholder" for a period of three years following the time that the
stockholder became an interested stockholder unless:
. before that time, the board of directors of the corporation approved
either the business combination or the transaction which resulted in the
stockholder becoming an interested stockholder;
. upon consummation of the transaction which resulted in the stockholder
becoming an interested stockholder, the interested stockholder owned at
least 85% of the voting stock of the corporation outstanding at the time
the transaction commenced, excluding for purposes of determining the
number of shares outstanding those shares owned by persons who are
directors and also officers and by employee stock plans in which
employee participants do not have the right to determine confidentially
whether shares held subject to the plan will be tendered in a tender or
exchange offer; or
. at or after that time, the business combination is approved by the board
of directors and authorized at an annual or special meeting of
stockholders, and not by written consent, by the affirmative vote of at
least 66 2/3% of the outstanding voting stock which is not owned by the
interested stockholder.
Section 203 defines "business combination" to include the following:
. any merger or consolidation of the corporation with the interested
stockholder;
. any sale, transfer, pledge or other disposition of 10% or more of the
assets of the corporation involving the interested stockholder;
. subject to specified exceptions, any transaction that results in the
issuance or transfer by the corporation of any stock of the corporation
to the interested stockholder;
. any transaction involving the corporation that has the effect of
increasing the proportionate share of the stock of any class or series
of the corporation beneficially owned by the interested stockholder; or
. any receipt by the interested stockholder of the benefit of any loans,
advances, guarantees, pledges or other financial benefits provided by or
through the corporation.
In general, section 203 defines an "interested stockholder" as any entity or
person beneficially owning 15% or more of the outstanding voting stock of the
corporation and any entity or person affiliated with or controlling or
controlled by that entity or person.
The application of section 203 may make it difficult and expensive for a
third party to pursue a takeover attempt we approve even if a change in control
of U.S. Foodservice would be beneficial to the interests of our stockholders.
Director Liability and Indemnification of Directors and Officers
The Delaware general corporation law provides that a corporation may
eliminate or limit the personal liability of each director to the corporation
or its stockholders for monetary damages for breach of fiduciary duty as a
director except for liability for any breach of the director's duty of loyalty
to the corporation or its stockholders, for acts or omissions not in good faith
or that involve intentional misconduct or a knowing violation of law, in
respect of unlawful dividend payments or stock redemptions or repurchases and
for any transaction from which the director derives an improper personal
benefit. The U.S. Foodservice certificate of incorporation provides for the
elimination and limitation of the personal liability of directors for monetary
damages to the fullest extent permitted by the Delaware general corporation
law. In addition, the certificate of incorporation provides that if the
Delaware general corporation law is amended to authorize the further
elimination or limitation of the liability of a director, then the liability of
the directors will be eliminated or limited to the fullest extent permitted by
the Delaware general corporation law, as so amended. The effect of this
provision is to eliminate the rights of U.S. Foodservice and its stockholders,
through stockholder derivative suits on behalf of U.S. Foodservice, to recover
monetary damages against a director for breach of the fiduciary duty of care as
a director, including breaches resulting from negligent or grossly negligent
behavior, except in the situations described above. The provision does not limit
or eliminate the rights of U.S. Foodservice or any stockholder to seek non-
monetary relief such as an injunction or rescission upon breach of a director's
duty of care. This provision is consistent with section 102(b)(7) of the
Delaware general corporation law, which is designed, among other things, to
encourage qualified individuals to serve as directors of Delaware corporations.
The U.S. Foodservice bylaws provide that U.S. Foodservice will, to the
fullest extent permitted by the Delaware general corporation law, as amended
from time to time, indemnify, and advance expenses to, each of its currently
acting and former directors and officers.
Listing of Common Stock
The common stock is listed on the New York Stock Exchange.
Transfer Agent and Registrar
ChaseMellon Shareholder Services, L.L.C. serves as transfer agent and
registrar for the common stock.
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Item 2. Exhibits.
1. Restated Certificate of Incorporation of the Registrant. Filed
as Exhibit 3.1 to the Registrant's Registration Statement on Form
S-3 (Commission File No. No. 333-59785) and incorporated herein
by reference.
2. Amended and Restated By-Laws of the Registrant. Filed as Exhibit
4.2 to the Registrant's Registration Statement on Form S-3
(Commission File No. 333-81323) and incorporated herein by
reference.
3. Specimen certificate representing Common Stock, par value $.01
per share, of the Registrant. Filed as Exhibit 4.1 to the
Registrant's Registration Statement on Form S-3 (Commission File
No. 333-27275) and incorporated herein by reference.
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange Act
of 1934, the registrant has duly caused this registration statement to be signed
on its behalf by the undersigned, thereunto duly authorized.
U.S. FOODSERVICE
By: /s/ David M. Abramson
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David M. Abramson
Executive Vice President and
General Counsel
Date: June 25, 1999
