<PAGE>
As filed with the Securities and Exchange Commission on June 22, 1999
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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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)
Delaware 52-1634568
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
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9755 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, Esq.
Executive Vice President and General Counsel
U.S. Foodservice
9755 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:
Richard J. Parrino, Esq.
Hogan & Hartson L.L.P.
555 Thirteenth Street, N.W.
Washington, D.C. 20004
(202) 637-5600
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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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<TABLE>
<CAPTION>
Proposed Proposed
Title of Each Class of Amount Maximum Maximum
Securities to be to be Offering Price Aggregate Amount of
Registered Registered(1) per Share(2) Offering Price(2)(3) Registration Fee(3)
- ------------------------ ------------- -------------- -------------------- -------------------
<S> <C> <C> <C> <C>
Common Stock, par value
$.01 per share......... 25,000 shares $42.35 $1,058,750 $294.33
</TABLE>
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(1) Pursuant to Rule 429 under the Securities Act, 12,925 shares of Common
Stock are being carried forward from Registration Statement No. 333-59785
and 1,446,480 shares of Common Stock are being carried forward from
Registration Statement No. 333-67553. Filing fees of $140.21 associated
with 12,925 shares were previously paid with Registration Statement No.
333-59785 and filing fees of $19,780.35 associated with 1,446,480 shares
were previously paid with Registration Statement No. 333-67553.
(2) Estimated pursuant to Rule 457(c) under the Securities Act solely for the
purpose of calculating the registration fee.
(3) In accordance with Rule 457(c), the proposed maximum aggregate offering
price and registration fee are based upon the average of the high and low
prices for the Registrant's Common Stock on the New York Stock Exchange,
Inc. on June 21, 1999.
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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 Section 8(A) of
the Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(A),
may determine.
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<PAGE>
PROSPECTUS
1,484,405 SHARES
U.S. FOODSERVICE
COMMON STOCK
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U.S. Foodservice is one of the nation's largest broadline foodservice
distributors, offering a comprehensive range of food and related products to
restaurants, hotels, health care facilities, cafeterias, schools and other
foodservice customers nationwide. This prospectus relates to the offer and sale
from time to time of up to 1,484,405 shares of our common stock by the U.S.
Foodservice stockholders named in this prospectus. We will not receive any
proceeds from the sale of such shares.
Our common stock is listed on the New York Stock Exchange and trades on the
exchange under the ticker symbol "UFS." On June 21, 1999, the last reported
sale price of our common stock on the New York Stock Exchange was $42.19 per
share.
Our principal executive offices are located at 9755 Patuxent Woods Drive,
Columbia, Maryland 21046, and our telephone number at that address is (410)
312-7100.
-----------
See "Risk Factors" beginning on page 3 for information that you should
consider before purchasing the shares offered by this prospectus.
-----------
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved these securities or determined if this
prospectus is truthful or complete. Any representation to the contrary is a
criminal offense.
-----------
The date of this prospectus is , 1999.
The information in this prospectus is not complete and may be changed. We may
not sell these securities until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an
offer to sell these securities and it is not soliciting an offer to buy these
securities in any state where the offer or sale is not permitted.
<PAGE>
If it is against the law in any state to make an offer to sell the shares,
or to solicit an offer from someone to buy the shares, then this prospectus
does not apply to any person in that state, and no offer or solicitation is
made by this prospectus to any such person.
You should rely only on the information provided or incorporated by
reference in this prospectus or any supplement. Neither we nor any of the
selling stockholders have authorized anyone to provide you with different
information. You should not assume that the information in this prospectus or
any supplement is accurate as of any date other than the date on the front of
such documents.
TABLE OF CONTENTS
<TABLE>
<S> <C>
Risk Factors................................................................ 3
Cautionary Note Regarding Forward-Looking Statements........................ 7
Where You Can Find More Information......................................... 8
About U.S. Foodservice...................................................... 10
Use of Proceeds............................................................. 10
Selling Stockholders........................................................ 11
Plan of Distribution........................................................ 12
Legal Matters............................................................... 14
Experts..................................................................... 14
</TABLE>
2
<PAGE>
RISK FACTORS
In addition to the other information contained and incorporated by reference
in this prospectus, you should carefully consider the following risk factors
relating to U.S. Foodservice and our common stock before purchasing the shares
offered by this prospectus.
Our business has low profit margins and is sensitive to national and
regional economic conditions.
Foodservice distribution companies like U.S. Foodservice purchase, store,
market and transport food and related products to establishments that prepare
and serve meals to be eaten away from home. Our industry is characterized by
relatively high inventory turnover with relatively low profit margins. We sell
a significant portion of our products at prices that are based on the cost of
the products plus a percentage markup. As a result, our profit levels may be
reduced during periods of food price deflation, even though our gross profit
percentage may remain relatively constant. Such a reduction could have a
material adverse effect on our business, operating results and financial
condition.
The foodservice distribution industry is sensitive to national and regional
economic conditions. Economic downturns could have an adverse impact on the
demand for our products. These downturns may reduce consumer spending at
restaurants and other foodservice institutions we supply.
Our distribution and administrative expenses are relatively fixed in the
short term. As a result, unexpected decreases in our net sales, such as those
due to severe weather conditions, can have a significant short-term adverse
impact on our operating income. Our operating results also may be adversely
affected by difficulties we may encounter in collecting our accounts receivable
and in maintaining our profit margins in times of unexpected increases in fuel
costs.
We are subject to risks associated with our acquisitions of other
foodservice businesses.
Since we became a public company in November 1994, we have acquired a
substantial number of foodservice businesses as part of our growth strategy of
supplementing internal expansion with acquisitions. Our acquisitions may not
improve our financial performance in the short or long term as we expect.
Acquisitions will enhance our earnings only if we can successfully integrate
those businesses into our marketing programs, centralized purchasing
operations, distribution network and information systems. Our ability to
integrate acquired businesses may be adversely affected by factors that include
customer resistance to our product brands and distribution system, our failure
to retain management and sales personnel, difficulties in converting different
information systems to our proprietary systems, the size of the acquired
business and the allocation of limited management resources among various
integration efforts. In addition, we may not eliminate as many redundant costs
as we anticipated in selecting our acquisition candidates. One or more of our
acquisition candidates also may have liabilities or adverse operating issues
that we failed to discover prior to the acquisition. Difficulties in
integrating acquired businesses, as well as liabilities or adverse operating
issues relating to acquired businesses, could have a material adverse effect on
our business, operating results and financial condition.
Even if acquired companies eventually contribute to an increase in our
profitability, the acquisitions may adversely affect our earnings in the short
term. Our earnings may decrease as a result of transaction-related expenses we
record for the quarter in which we complete an acquisition. Our earnings may be
further reduced by the higher operating and administrative expenses we
typically incur in the quarters immediately following an acquisition as we seek
to integrate the acquired business into our operations. The amortization of
goodwill and depreciation resulting from acquisitions also may contribute to
reduced earnings.
A significant portion of the growth in our revenues in recent years has
resulted from acquisitions. We may not be able to increase our revenues or
earnings through new acquisitions at the same rates we have achieved
3
<PAGE>
through our past acquisitions. For example, we were able to triple our revenues
directly as a result of our acquisition of Rykoff-Sexton, Inc. in our 1998
fiscal year. As the foodservice distribution industry continues to consolidate,
we may find it more difficult to identify suitable acquisition candidates than
we did in the past. We may also find that the acquisition terms are not as
favorable as those in our prior acquisitions.
The way in which we pay for acquired businesses also involves risks. Many of
our past acquisitions have been structured as stock-for-stock transactions.
Continuing volatility in the U.S. securities markets and fluctuations in our
stock price may increase the risk that our stock-for-stock acquisitions could
dilute our earnings per share. We also pay cash for some businesses. In the
past, we have obtained funds for some of our cash acquisitions through
additional bank borrowings or by issuing common stock. If we increase our bank
borrowings or issue debt securities to finance future acquisitions, we will
increase our level of indebtedness and interest expense, while if we issue
additional common stock, we may dilute the ownership of our stockholders. In
addition, we may not be able to obtain the funds we need on acceptable terms.
These risks in the way we finance acquisitions could have a material adverse
effect on our business, operating results and financial condition.
Our stock price has fluctuated over a wide range, and could fluctuate
significantly in the future, as a result of our operating performance and
conditions in our industry.
From time to time, there may be significant volatility in the market price
for our common stock. Since our common stock began to trade publicly in
November 1994, its market price has fluctuated over a wide range. During our
last four complete fiscal quarters, the high last reported sale price of our
common stock on the New York Stock Exchange was $52.50 and the low last
reported sale price of our common stock was $31.50. A number of factors
involving U.S. Foodservice and the foodservice distribution industry could
contribute to future fluctuations in our stock price. These factors include the
following:
. quarterly operating results of U.S. Foodservice or other distributors of
food and related goods, which could affect the attractiveness of our
stock compared to the securities of foodservice companies with better
results or companies in other businesses;
. changes in general conditions in the economy or the foodservice
distribution industry, which could affect the demand for our products
and our operating results;
. our failure to complete and successfully integrate acquisitions of other
foodservice companies, which could adversely affect our operating
results and our ability to grow; and
. severe weather conditions, which could result in unexpected decreases in
our net sales.
The failure to attain year 2000 compliance may have an adverse impact on our
business.
We and other companies we do business with rely on numerous computer
programs in managing day-to-day operations. We have undertaken a program to
address the Year 2000 issue, which is a general term used to describe the
various problems that may result from the improper processing of dates and
date-sensitive calculations by computers and other machinery as the year 2000
is approached and reached. Our failure to correct a Year 2000 problem could
result in a material interruption in, or a material failure of, our normal
business activities or operations. Our Year 2000 program is focused on both our
internal computer systems and third-party computer systems, including the
systems of some of our important suppliers and customers. As of March 27, 1999,
we expect to continue to incur internal staff costs and other expenses of up to
$4 million to complete our Year 2000 compliance work with respect to our major
information systems. It is possible that we will have to increase this estimate
as we complete our assessment of the impact of the Year 2000 issue on our
business. In addition, we may have to replace or upgrade systems or equipment
at a substantial cost. We cannot be sure that we will be able to resolve the
Year 2000 issue in 1999. If we fail to resolve the Year 2000 issue, or if our
important suppliers and customers fail to resolve their Year 2000 issues as
they relate to U.S. Foodservice, the Year 2000 problem could have a material
adverse effect on our business, operating results and financial condition.
4
<PAGE>
A labor dispute or work stoppage involving our employees, many of whom are
union members, could adversely affect our business.
As of March 27, 1999, approximately 3,000 of our employees were members of
approximately 40 different local unions associated with the International
Brotherhood of Teamsters and other labor organizations. These employees
represented approximately 26% of our full-time employees and approximately 27%
of the employees employed in our warehouse and distribution operations. A labor
dispute or work stoppage resulting from our failure to conclude new collective
bargaining agreements or from other factors could have a material adverse
effect on our business, operating results and financial condition.
The foodservice distribution industry is highly competitive.
Our industry is extremely fragmented, with over 3,000 companies in operation
in 1998. The number and diverse nature of these companies result in highly
competitive conditions. Our competition includes not only other broadline
distributors, which provide a comprehensive range of food and related products
from a single source of supply, but also specialty distributors and system
distributors. Specialty distributors generally supply one or two product
categories, while system distributors typically supply a narrow range of
products to a limited number of multi-unit businesses operating in a broad
geographical area. We compete in each of our markets with at least one other
large national distribution company, generally Sysco Corporation or Alliant
Foodservice, Inc., as well as with numerous regional and local distributors. In
seeking acquisitions of other foodservice businesses, we compete against both
other foodservice distribution companies and financial investors. Our failure
to compete successfully could have a material adverse effect on our business,
operating results and financial condition.
We currently have significant indebtedness and may incur additional
indebtedness in the future.
At March 27, 1999, our ratio of total debt to total capitalization was
approximately 51.0%. Our total capitalization is the sum of our total debt and
capital lease obligations plus our stockholders' equity. Our ratio of total
debt to total capitalization as of March 27, 1999 would have been approximately
60.2% if we had included as debt $325 million of accounts receivable
securitization arrangements. In accordance with generally accepted accounting
principles, we do not account for these arrangements as debt on our balance
sheet, but many lenders consider these arrangements in their credit decisions.
We may incur additional indebtedness in the future, subject to limitations
contained in the instruments governing our indebtedness, to finance capital
expenditures or for other general corporate purposes, including acquisitions.
We cannot assure you that our business will continue to generate cash flow at
or above the levels required to service our indebtedness and meet our other
cash needs. If our business fails to generate sufficient operating cash flow in
the future, or if we fail to obtain cash from other sources such as asset sales
or additional financings, we will be restricted in our ability to continue to
make acquisitions for cash and to invest in expansion or replacement of our
distribution facilities, information systems and equipment. Such a failure
could have a material adverse effect on our business, operating results and
financial condition. In addition, because a majority of our indebtedness bears
interest at floating rates, a material increase in interest rates could
adversely affect our ability to meet our liquidity requirements.
Our success largely depends on our ability to retain our senior management.
We largely depend for our success on the efforts of members of our senior
management. Our key senior managers have many years of experience in broadline
foodservice distribution with U.S. Foodservice and other companies, as well as
in the acquisition and integration of foodservice businesses. They have
developed and coordinated implementation of U.S. Foodservice's business
strategy since our formation in 1989. If we were to lose the services of one or
more of our key senior managers, our business, operating results and financial
condition could be materially adversely affected.
5
<PAGE>
Product liability claims could have an adverse effect on our business.
Like any other seller of food and processor of meats, we face an inherent
risk of exposure to product liability claims if the products we sell cause
injury or illness. We have obtained primary and excess umbrella liability
insurance with respect to product liability claims. We cannot assure you,
however, that this insurance will continue to be available at a reasonable
cost, or, if available, will be adequate to cover liabilities. We generally
seek contractual indemnification from parties supplying our products, but any
such indemnification is limited, as a practical matter, to the creditworthiness
of the indemnifying party. If we do not have adequate insurance or contractual
indemnification available, product liabilities relating to defective products
could have a material adverse effect on our business, operating results and
financial condition.
Future sales of our common stock in the public market could adversely affect
our stock price and our ability to raise funds in new stock offerings.
Future sales of substantial amounts of our common stock in the public
market, or the perception that such sales could occur, could adversely affect
prevailing market prices for our common stock and could impair our ability to
raise capital through future offerings of equity securities. Of the 49.6
million shares of our common stock outstanding at May 6, 1999, approximately
1.4 million shares were eligible for sale in the public market in accordance
with Rule 144 under the Securities Act of 1933.
As of May 6, 1999, we also were required by various registration rights
agreements, with limited exceptions, to maintain a continuously effective
registration statement covering resales of up to approximately 1.5 million
shares of common stock we issued to stockholders of acquired businesses. This
prospectus forms a part of such a registration statement. We expect to grant
registration rights to the stockholders of other foodservice businesses we may
acquire in the future. The exercise of registration rights granted by U.S.
Foodservice is subject to notice requirements, timing restrictions and volume
limitations which may be imposed by the underwriters of an offering. U.S.
Foodservice is required to bear the expenses of all these registrations, except
for underwriting discounts and commissions.
We do not anticipate that we will pay cash dividends on our common stock.
We have never paid cash dividends on our common stock and we do not
anticipate that we will pay cash dividends in the foreseeable future. We may
pay cash dividends only if we comply with financial tests and other
restrictions contained in our credit facility agreements.
Provisions in our charter and bylaws and in Delaware law could discourage
takeover attempts we oppose even if our stockholders might benefit from a
change in control of U.S. Foodservice.
Provisions in our charter and bylaws and in the Delaware general corporation
law may make it difficult and expensive for a third party to pursue a takeover
attempt we oppose even if a change in control of U.S. Foodservice would be
beneficial to the interests of our stockholders. The charter and bylaw
provisions include a requirement that our board of directors be divided into
three classes, with approximately one-third of the directors to be elected each
year. This classification of directors makes it more difficult for an acquiror
or for other stockholders to change the composition of the board of directors.
In addition, the board of directors 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 each series without stockholder approval. The ability
to issue preferred stock could discourage unsolicited acquisition proposals or
make it more difficult for a third party to gain control of U.S. Foodservice,
or otherwise could adversely affect the market price of our common stock.
Further, as a Delaware corporation, we are subject to section 203 of the
Delaware general corporation law. This section generally prohibits us from
engaging in mergers and other business combinations with stockholders that
beneficially own 15% or more of our voting stock and with their affiliates,
unless our directors or stockholders approve the business combination in the
prescribed manner.
6
<PAGE>
We have adopted a shareholder rights plan which could discourage hostile
acquisitions of control in which our stockholders may wish to participate.
In 1996, our board of directors adopted a "poison pill" shareholder rights
plan, which 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. Under our shareholder rights plan, preferred share
purchase rights, which are attached to our common stock, generally will be
triggered upon the acquisition, or actions that would result in the
acquisition, of 10% or more of the 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, those rights would 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 our stockholders other than the acquiror to purchase, for the
exercise price, shares of our common stock having a market value of two times
the exercise price. In addition, 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.
CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus and the information incorporated by reference in it, as well
as any prospectus supplement that accompanies it, include "forward-looking
statements" within the meaning of Section 27A of the Securities Act and Section
21E of the Securities Exchange Act of 1934. We intend the forward-looking
statements to be covered by the safe harbor provisions for forward-looking
statements in these sections. All statements regarding our expected financial
position and operating results, our business strategy and our financing plans
and similar matters are forward-looking statements. These statements can
sometimes be identified by our use of forward-looking words such as "may,"
"will," "anticipate," "estimate," "expect" or "intend." We cannot promise you
that our expectations in such forward-looking statements will turn out to be
correct. Our actual results could be materially different from our
expectations. Important factors that could cause our actual results to be
materially different from our expectations include those discussed in this
prospectus under the caption "Risk Factors."
7
<PAGE>
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and other
information with the SEC under the Securities Exchange Act. Our Securities
Exchange Act file number for those SEC filings is 0-24954. You may read and
copy any document we file at the following SEC public reference rooms in
Washington, D.C. and at the following SEC regional offices:
450 Fifth Street, N.W. 7 World Trade Center 500 West Madison
Room 1024 Suite 1300 Street
Washington, D.C. New York, New York Suite 1400
20549 10048 Chicago, Illinois
60661
You may obtain information on the operation of the public reference rooms by
calling the SEC at 1-800-SEC-0330.
We file information electronically with the SEC. Our SEC filings also are
available from the SEC's Internet site at http://www.sec.gov, which contains
reports, proxy and information statements, and other information regarding
issuers that file electronically.
You also may inspect our SEC filings and other information concerning U.S.
Foodservice at the offices of the New York Stock Exchange located at 20 Broad
Street, New York, New York 10005.
This prospectus is part of a registration statement we filed with the SEC.
The SEC allows us to "incorporate by reference" certain documents we file with
it, which means that we can disclose important information to you by referring
you to those documents. The information incorporated by reference is considered
to be part of this prospectus, and information that we file later with the SEC
will automatically update and supersede this information. We incorporate by
reference the documents listed below and any future filings we will make with
the SEC under Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act
until all of the selling stockholders sell all of the shares or the offering is
otherwise terminated:
1. our Annual Report on Form 10-K for our fiscal year ended June 27, 1998,
which we filed on September 25, 1998, including the information we
incorporated by reference in our Form 10-K from our definitive proxy
statement for our 1998 annual meeting of stockholders, which we filed on
October 9, 1998;
2. our first amendment to our Annual Report on Form 10-K/A-1, which we
filed on January 14, 1999, and our second amendment to our Annual Report
on Form 10-K/A-2, which we filed on March 4, 1999;
3. our Quarterly Report on Form 10-Q for our fiscal quarter ended September
26, 1998, which we filed on November 10, 1998, our Quarterly Report on
Form 10-Q for our fiscal quarter ended December 26, 1998, which we filed
on February 9, 1999, and our Quarterly Report on Form 10-Q for our
fiscal quarter ended March 27, 1999, which we filed on May 10, 1999;
4. our amendment to our Quarterly Report on Form 10-Q/A-1 for our fiscal
quarter ended September 26, 1998, which we filed on January 14, 1999;
5. our Current Reports on Form 8-K which we filed on September 11, 1998,
December 18, 1998, March 26, 1999 and April 22, 1999;
6. the description of our common stock contained in our registration
statement on Form 8-A which we filed on December 20, 1996, including any
amendments or reports we file for the purpose of updating this
description; and
8
<PAGE>
7. the description of the preferred share purchase rights attached to our
common stock which is contained in our registration statement on Form 8-
A which we filed on December 20, 1996, including any amendments or
reports we file for the purpose of updating this description.
We will provide a copy of the information we incorporate by reference, at no
cost, to each person to whom this prospectus is delivered. To request a copy of
any or all of this information, you should write or telephone us at the
following address and telephone number:
Investor Relations
U.S. Foodservice
9755 Patuxent Woods Drive
Columbia, Maryland 21046
Telephone: (410) 312-7100
9
<PAGE>
ABOUT U.S. FOODSERVICE
U.S. Foodservice, formerly JP Foodservice, Inc., is one of the nation's
largest broadline foodservice distributors based on fiscal year 1998 net sales
of $5.5 billion. We sell food and related products to restaurants and other
institutional foodservice establishments through our national distribution
network, which provides geographic access to more than 85% of the U.S.
population. We market and distribute more than 40,000 national and proprietary
brand items to over 130,000 foodservice customers, including restaurants,
hotels, healthcare facilities, cafeterias and schools. This broad product line
allows us to meet substantially all of the food and related supply needs of our
diverse customer base of independent "street" and multi-unit "chain"
businesses, which include Ruby Tuesday, Subway, Buffet's Inc., Perkins Family
Restaurants and Pizzeria Uno.
We supplement our internal expansion with an active program of strategic
acquisitions to take advantage of growth opportunities from ongoing
consolidation in the fragmented foodservice distribution industry. We seek to
increase penetration of our current markets through acquisitions of small,
privately owned distributors which we fold into our existing operations and to
expand into new markets through acquisitions of larger-sized distributors.
On December 23, 1997, we acquired Rykoff-Sexton by merger. At the time of
the acquisition, Rykoff-Sexton was the nation's third largest broadline
foodservice distributor based on net sales. Rykoff-Sexton, which is now called
U.S. Foodservice, Inc., operates as our wholly owned subsidiary. In the merger,
holders of Rykoff-Sexton common stock received U.S. Foodservice common stock
representing approximately 50% of our outstanding common stock after the
merger. We have accounted for our acquisition of Rykoff-Sexton as a pooling of
interests in accordance with generally accepted accounting principles.
U.S. Foodservice is a holding company that conducts its operations through
wholly owned subsidiaries. When we refer in this prospectus to U.S.
Foodservice, we mean U.S. Foodservice and its consolidated subsidiaries. On
February 27, 1998, we changed our corporate name from JP Foodservice, Inc. to
U.S. Foodservice to reflect our expanded distribution capabilities throughout
the country. When we refer in this prospectus to U.S. Foodservice prior to
February 27, 1998, we mean JP Foodservice, Inc. and its consolidated
subsidiaries.
USE OF PROCEEDS
The selling stockholders will receive all of the net proceeds from the sale
of their shares. Accordingly, U.S. Foodservice will not receive any proceeds
from the sale of the shares.
10
<PAGE>
SELLING STOCKHOLDERS
The selling stockholders include former owners of four foodservice
businesses we have acquired: Lone Star Institutional Grocers, Inc., J.H. Haar &
Sons, L.L.C., Joseph Webb Foods, Inc. and Sofco, Inc. We issued 12,925 of the
shares to C. Donald Stahl in consideration for our acquisition of Lone Star
Institutional Grocers in the first quarter of fiscal 1999. We issued 550,543 of
the shares to Geoffrey Haar, the former member of J.H. Haar & Sons, in
consideration for our acquisition of J.H. Haar & Sons in the second quarter of
fiscal 1999. We issued 896,057 of the shares to the former stockholders of
Joseph Webb Foods, J. Christopher Reyes, M. Jude Reyes and David K. Reyes, in
consideration for our acquisition of Joseph Webb Foods in the second quarter of
fiscal 1999. We issued of the shares to CEX Holdings, Inc. in
consideration for our acquisition of its wholly-owned subsidiary, Sofco, in the
fourth quarter of fiscal 1999. We have registered the shares under the
Securities Act in accordance with registration rights we granted to the selling
stockholders in connection with the acquisition of their businesses. Our
registration of the shares does not necessarily mean that any selling
stockholder will sell all or any of the shares listed below.
The following table sets forth certain information with respect to the
selling stockholders. Assuming all of the shares offered by this prospectus are
sold, none of the selling stockholders will own common stock after this
offering that will represent 1% or more of the outstanding common stock.
<TABLE>
<CAPTION>
Name of Shares Beneficially Shares Shares Beneficially
Beneficial Owner Owned Prior to Offering Offered Owned After Offering
---------------- ----------------------- ------- --------------------
<S> <C> <C> <C>
C. Donald Stahl............ 12,925 12,925 0
Geoffrey Haar.............. 550,543 550,543 0
J. Christopher Reyes....... 358,423 358,423 0
M. Jude Reyes.............. 358,423 358,423 0
David K. Reyes............. 179,211 179,211 0
CEX Holdings, Inc. ........
</TABLE>
C. Donald Stahl served as President and a director of Lone Star
Institutional Grocers before we acquired that company. We currently employ Mr.
Stahl as a branch-level manager.
Geoffrey Haar served as President of J.H. Haar & Sons before we acquired
that company. We currently employ Mr. Haar as a branch-level president.
Before we acquired Joseph Webb Foods, J. Christopher Reyes served as a
director, President and Secretary of Joseph Webb Foods, M. Jude Reyes served as
a director and Vice President of Joseph Webb Foods, and David K. Reyes served
as a director, Vice President and Assistant Treasurer of Joseph Webb Foods. We
do not currently employ any of these persons. We are obligated to issue
additional shares to the former stockholders of Joseph Webb Foods if the
business we acquired from them achieves specified sales targets.
11
<PAGE>
PLAN OF DISTRIBUTION
The shares may be sold or distributed from time to time by the selling
stockholders named in this prospectus, by their donees or transferees, or by
their other successors in interest. The selling stockholders may sell their
shares at market prices prevailing at the time of sale, at prices related to
such prevailing market prices, at negotiated prices, or at fixed prices, which
may be changed. Each selling stockholder reserves the right to accept or
reject, in whole or in part, any proposed purchase of shares, whether the
purchase is to be made directly or through agents.
The selling stockholders may offer their shares at various times in one or
more of the following transactions:
. in ordinary brokers' transactions and transactions in which the broker
solicits purchasers;
. in transactions involving cross or block trades or otherwise on the New
York Stock Exchange;
. in transactions in which brokers, dealers or underwriters purchase the
shares as principal and resell the shares for their own accounts
pursuant to this prospectus;
. in transactions "at the market" to or through market makers in the
common stock or into an existing market for the common stock;
. in other ways not involving market makers or established trading
markets, including direct sales of the shares to purchasers or sales of
the shares effected through agents;
. through transactions in options, swaps or other derivatives which may or
may not be listed on an exchange;
. in privately negotiated transactions;
. in transactions to cover short sales; or
. in a combination of any of the foregoing transactions.
The selling stockholders also may sell their shares in accordance with Rule 144
under the Securities Act.
From time to time, one or more of the selling stockholders may pledge or
grant a security interest in some or all of the shares owned by them. If the
selling stockholders default in performance of their secured obligations, the
pledgees or secured parties may offer and sell the shares from time to time by
this prospectus. The selling stockholders also may transfer and donate shares
in other circumstances. The number of shares beneficially owned by selling
stockholders will decrease as and when the selling stockholders transfer or
donate their shares or default in performing obligations secured by their
shares. The plan of distribution for the shares offered and sold under this
prospectus will otherwise remain unchanged, except that the transferees,
donees, pledgees, other secured parties or other successors in interest will be
selling stockholders for purposes of this prospectus.
A selling stockholder may sell short the common stock. The selling
stockholder may deliver this prospectus in connection with such short sales and
use the shares offered by this prospectus to cover such short sales.
A selling stockholder may enter into hedging transactions with broker-
dealers. The broker-dealers may engage in short sales of the common stock in
the course of hedging the positions they assume with the selling stockholder,
including positions assumed in connection with distributions of the shares by
such broker-dealers. A selling stockholder also may enter into option or other
transactions with broker-dealers that involve the delivery of the shares to the
broker-dealers, who may then resell or otherwise transfer such shares. In
addition, a selling stockholder may loan or pledge shares to a broker-dealer,
which may sell the loaned shares or, upon a default by the selling stockholder
of the secured obligation, may sell or otherwise transfer the pledged shares.
The selling stockholders may use brokers, dealers, underwriters or agents to
sell their shares. The persons acting as agents may receive compensation in the
form of commissions, discounts or concessions. This
12
<PAGE>
compensation may be paid by the selling stockholders or the purchasers of the
shares for whom such persons may act as agent, or to whom they may sell as
principal, or both. The compensation as to a particular person may be less than
or in excess of customary commissions. The selling stockholders and any agents
or broker-dealers that participate with the selling stockholders in the offer
and sale of the shares may be deemed to be "underwriters" within the meaning of
the Securities Act. Any commissions they receive and any profit they realize on
the resale of the shares by them may be deemed to be underwriting discounts and
commissions under the Securities Act. Neither we nor any selling stockholders
can presently estimate the amount of such compensation.
If a selling stockholder sells shares in an underwritten offering, the
underwriters may acquire the shares for their own account and resell the shares
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. In such event, we will set forth in a supplement to this
prospectus the names of the underwriters and the terms of the transactions,
including any underwriting discounts, concessions or commissions and other
items constituting compensation of the underwriters and broker-dealers. The
underwriters from time to time may change any public offering price and any
discounts, concessions or commissions allowed or reallowed or paid to broker-
dealers. Unless otherwise set forth in a supplement, the obligations of the
underwriters to purchase the shares will be subject to certain conditions, and
the underwriters will be obligated to purchase all of the shares specified in
the supplement if they purchase any of the shares.
We have advised the selling stockholders that during such time as they may
be engaged in a distribution of the shares, they are required to comply with
Regulation M under the Securities Exchange Act. With certain exceptions,
Regulation M prohibits any selling stockholder, any affiliated purchasers and
other persons who participate in such a distribution from bidding for or
purchasing, or attempting to induce any person to bid for or purchase, any
security which is the subject of the distribution until the entire distribution
is complete.
Under our registration rights agreements with the selling stockholders, we
are 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. We estimate these expenses will total
approximately $120,000.
We have 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.
It is possible that a significant number of shares could be sold at the same
time. Such sales, or the perception that such sales could occur, may adversely
affect prevailing market prices for the common stock.
This offering by any selling stockholder will terminate on the date
specified in the selling stockholder's registration rights agreement with U.S.
Foodservice or, if earlier, on the date on which the selling stockholder has
sold all of his shares.
13
<PAGE>
LEGAL MATTERS
For purposes of this offering, Hogan & Hartson L.L.P., Washington, D.C., has
given its opinion as to the validity of the shares offered by the former
stockholder of Lone Star Institutional Grocers, Inc., and Miles & Stockbridge
P.C., Baltimore, Maryland, has given its opinion as to the validity of the
shares offered by the other selling stockholders.
EXPERTS
U.S. Foodservice. The consolidated financial statements of U.S. Foodservice
as of June 28, 1997 and June 27, 1998 and for the years then ended incorporated
by reference in this prospectus have been incorporated by reference herein and
in the registration statement in reliance upon the report of KPMG LLP,
independent certified public accountants, incorporated herein by reference and
upon the authority of said firm as experts in auditing and accounting.
The consolidated financial statements of U.S. Foodservice, formerly JP
Foodservice, Inc., for the year ended June 29, 1996 incorporated by reference
in this prospectus have been so incorporated in reliance on the report of
PricewaterhouseCoopers 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,
for the year 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 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 for the fiscal years ended June
28, 1997 and April 27, 1996 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.
14
<PAGE>
PART II
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 by the Company in connection
with the sale and distribution of the securities being registered. All amounts
except the SEC registration fee are estimated.
<TABLE>
<CAPTION>
Item Amount
---- ------
<S> <C>
SEC registration fee.................................................. $ 294
Printing expenses..................................................... *
Legal fees and expenses............................................... *
Accounting fees and expenses.......................................... *
Transfer Agent and Registrar fees..................................... *
Miscellaneous......................................................... *
-----
Total............................................................... $ *
=====
</TABLE>
- --------
* To be filed by amendment.
Item 15. Indemnification of Directors and Officers
Reference is made to the provisions of Article XII of the registrant's
Restated Certificate of Incorporation filed as Exhibit 4.1 hereto and the
provisions of Article XII of the registrant's Amended and Restated By-laws
filed as Exhibit 4.2 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 such person
reasonably believed to be or not opposed to the best interests of the
registrant and had no reason to believe that such person's 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.
II-1
<PAGE>
In the registration rights agreements with the registrant 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:
<TABLE>
<C> <S> <C>
4.1 Restated Certificate of Incorporation of the Company
(incorporated by reference to Exhibit 3.1 to the Company's
Registration Statement on Form S-3 (Commission File No. 333-
59785)).
+4.2 Amended and Restated By-Laws of the Company.
4.3 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)).
4.4 Rights Agreement, dated as of February 19, 1996, between U.S.
Foodservice and The Bank of New York, as Rights Agent (the
"Rights Agreement") (incorporated by reference to Exhibit 1 to
the Company's Registration Statement on Form 8-A dated February
22, 1996).
4.5 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)).
4.6 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)).
4.7 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 filed on July 2, 1997).
4.8 Amendment No. 4 to Rights Agreement, dated as of December 23,
1997 (incorporated by reference to the Company's Current Report
on Form 8-K filed on January 7, 1998).
4.9 Amendment No. 5 to Rights Agreement, dated as of March 25, 1999
(incorporated by reference to the Company's Current Report on
Form 8-K filed on March 26, 1999).
4.10 Amendment No. 6 to Rights Agreement, dated as of April 22, 1999
(incorporated by reference to the Company's Current Report on
Form 8-K filed on April 22, 1999).
*5.1 Opinion of Miles & Stockbridge P.C., counsel to the Company,
regarding the validity of the securities being offered by certain
of the selling stockholders.
+23.1 Consent of PricewaterhouseCoopers LLP, Independent Accountants.
+23.2 Consents of KPMG 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).
*23.5 Consent of Hogan & Hartson L.L.P.
+24 Power of Attorney (included on signature page).
</TABLE>
- --------
+Filed herewith.
* To be filed by amendment.
(b) Financial Statement Schedules
Either not applicable or shown in the financial statements or notes thereto.
II-2
<PAGE>
Item 17. Undertakings
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) to include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) to reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the
maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement;
(iii) to include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if
the information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the registrant pursuant to
section 13 or section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities Exchange Act
of 1934) 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.
The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act of
1933, 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 the 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.
(2) For the purpose of determining any liability under the Securities Act
of 1933, each post-effective amendment that contains a form of prospectus
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.
II-3
<PAGE>
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
registrant pursuant to the General Corporation Law of the State of Delaware,
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, the registrant has been advised that
in the opinion of the Securities and Exchange Commission such indemnification
is against public policy as expressed in the Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the registrant of expenses incurred or
paid by a director, officer, or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Columbia, State of Maryland, on June 22, 1999.
U.S. FOODSERVICE
/s/ James L. Miller
By: _________________________________
James L. Miller
President and Chief Executive
Officer (Duly Authorized Officer)
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints James L. Miller, David M. Abramson and George T.
Megas, and each of them, as his true and lawful attorneys-in-fact and agents,
with full power of substitution and resubstitution, for him and in his name,
place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments), to this registration statement, and to
file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
connection therewith and about the premises, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents, or any of them, or their or his
substitute or substitutes, may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ James L. Miller- Chairman of the Board, June 22, 1999
______________________________________ President and Chief
James L. Miller Executive Officer
(Principal Executive
Officer)
/s/ George T. Megas Senior Vice President and June 22, 1999
______________________________________ Chief Financial Officer
George T. Megas (Principal Financial
Officer)
/s/ Robert A. Soule Vice President and Chief June 22, 1999
______________________________________ Accounting Officer
Robert A. Soule (Principal
Accounting Officer)
/s/ Lewis Hay, III Director June 22, 1999
______________________________________
Lewis Hay, III
/s/ Michael J. Drabb Director June 22, 1999
______________________________________
Michael J. Drabb
</TABLE>
II-5
<PAGE>
<TABLE>
<S> <C> <C>
/s/ David M. Abramson Director June 22, 1999
______________________________________
David M. Abramson
/s/ Eric E. Glass Director June 22, 1999
______________________________________
Eric E. Glass
/s/ Mark P. Kaiser Director June 22, 1999
______________________________________
Mark P. Kaiser
/s/ Paul I. Latta, Jr. Director June 22, 1999
______________________________________
Paul I. Latta, Jr.
Director
______________________________________
Dean R. Silverman
/s/ Jeffrey D. Serkes Director June 22, 1999
______________________________________
Jeffrey D. Serkes
/s/ James P. Miscoll Director June 22, 1999
______________________________________
James P. Miscoll
/s/ Bernard Sweet Director June 22, 1999
______________________________________
Bernard Sweet
</TABLE>
II-6
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit
Number Exhibits
------- --------
<C> <S> <C>
4.1 Restated Certificate of Incorporation of the Company
(incorporated by reference to Exhibit 3.1 to the Company's
Registration Statement on Form S-3 (Commission File No. 333-
59785)).
+ 4.2 Amended and Restated By-Laws of the Company.
4.3 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)).
4.4 Rights Agreement, dated as of February 19, 1996, between U.S.
Foodservice and The Bank of New York, as Rights Agent (the
"Rights Agreement") (incorporated by reference to Exhibit 1 to
the Company's Registration Statement on Form 8-A dated February
22, 1996).
4.5 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)).
4.6 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)).
4.7 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 filed on July 2, 1997).
4.8 Amendment No. 4 to Rights Agreement, dated as of December 23,
1997 (incorporated by reference to the Company's Current Report
on Form 8-K filed on January 7, 1998).
4.9 Amendment No. 5 to Rights Agreement, dated as of March 25, 1999
(incorporated by reference to the Company's Current Report on
Form 8-K filed on March 26, 1999).
4.10 Amendment No. 6 to Rights Agreement, dated as of April 22, 1999
(incorporated by reference to the Company's Current Report on
Form 8-K filed on April 22, 1999).
* 5.1 Opinion of Miles & Stockbridge P.C., counsel to the Company,
regarding the validity of the securities being offered by
certain of the selling stockholders.
+23.1 Consent of PricewaterhouseCoopers LLP, Independent Accountants.
+23.2 Consents of KPMG 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).
*23.5 Consent of Hogan & Hartson L.L.P.
+24 Power of Attorney (included on signature page).
</TABLE>
- --------
+ Filed herewith.
*To be filed by amendment.
<PAGE>
EXHIBIT 4.2
-----------
EXPLANATORY NOTE
On April 22, 1999, U.S. Foodservice's Board of Directors approved
amendments to the Company's Amended and Restated By-Laws pursuant to which the
following Articles and Sections were amended and restated in their entirety:
Article II Section 3 Article VII Section 2
Section 4
Section 5 Article VIII Section 2
Section 7
Section 8 Article IX Section 1
Section 2
Article III Section 1
Section 3 Article XI Entire Article XI
Section 4
Section 5 Article XII Section 2
Section 6 Section 3
Section 8 Section 4
Section 5
Article IV Section 1 Section 7
Section 2 Section 9
Article V Section 2 Article XIII Entire Article XIII
Article VI Section 2
Section 3
Section 4
In addition, as part of these amendments, a new Section 7 was added to Article
II and Section 9 of Article III was deleted in its entirety.
Filed herewith is a copy of the Amended and Restated By-Laws of U.S.
Foodservice which incorporates the foregoing amendments.
<PAGE>
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, and such special meeting may not be called by any other person or
persons. 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
<PAGE>
than (10) nor more than sixty (60) days prior to the scheduled date thereof.
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 voting powers, 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 voting power of the 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 voting
power of the 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.
Section 7. Conduct of Meetings. The date and time of the opening and
--------------------
the closing of the polls for each matter upon which the stockholders will vote
at a meeting shall be announced at the meeting by the person presiding over the
meeting. The Board of Directors may, to the extent not prohibited by law, adopt
by
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resolution such rules and regulations for the conduct of the meeting of
stockholders as it shall deem appropriate. Except to the extent inconsistent
with such rules and regulations as adopted by the Board of Directors, the
chairman of any meeting of stockholders shall have the right and authority to
prescribe such rules, regulations and procedures and to do all such acts as, in
the judgment of such chairman, are appropriate for the proper conduct of the
meeting. Such rules, regulations or procedures, whether adopted by the Board of
Directors or prescribed by the chairman of the meeting, may to the extent not
prohibited by law include, without limitation, the following: (i) the
establishment of an agenda or order of business for the meeting; (ii) rules and
procedures for maintaining order at the meeting and the safety of those present;
(iii) limitations on attendance at or participation in the meeting to
stockholders of record of the Corporation, their duly authorized and constituted
proxies or such other persons as the chairman of the meeting shall determine;
(iv) restrictions on entry to the meeting after the time fixed for the
commencement thereof; and (v) limitations on the time allotted to questions or
comments by participants. Unless and to the extent determined by the Board of
Directors or the chairman of the meeting, meetings of stockholders shall not be
required to be held in accordance with the rules of parliamentary procedure.
Section 8. 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 9. 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 of
Directors permits,
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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.
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 of Directors and (ii) any director who attains 70 years of age after such
director's election to the Board of Directors may serve for the entire term of
the class of the Board of Directors to which such director was elected. The
requirements of the preceding sentence shall not apply to any director of the
Corporation elected to the Board of Directors 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 of Directors or of the
executive committee or other committees of the Board of Directors, and determine
the amount of such fees and compensation. Nothing herein contained shall be
construed to preclude any director from serving the Corporation or any of its
subsidiaries in any other capacity and receiving compensation therefor in
amounts authorized or otherwise approved from time to time by the Board of
Directors.
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 of Directors, a majority of the total number of directors which the
Corporation would have if there were no vacancies 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.
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 of Directors. Notice of special meetings shall be given to each director
on
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24 hours notice to each director, either orally, by mail, overnight courier,
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 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 designate
-------------------
an Executive Committee to exercise, subject to applicable provisions of law, all
the powers of the Board of Directors in the management of the business and
affairs of the Corporation when the Board of Directors 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 the
committees specified in Section 6 of this Article III. The Executive Committee
shall consist of two or more directors of the Corporation. The Board of
Directors 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 of Directors 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 of Directors when
required.
A majority of the Executive Committee may determine its action and fix
the time and place of its meetings, unless the Board of Directors 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 of Directors 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 of Directors shall appoint the following standing
committees, the members of which shall serve at the pleasure of the Board of
Directors: a Nominating Committee, a Compensation Committee and an Audit
Committee. The Board of Directors 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 of
Directors as it
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<PAGE>
deems necessary and appropriate. Meetings of committees may be called by the
chairman of the committee on 24 hours notice to each committee member, either
orally, by mail, overnight courier, telegram, facsimile or similar means and
shall be called by the chairman of the committee in like manner 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 of Directors 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 of Directors from time to time. 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 a director who is not also an
officer or employee of the Corporation or any of 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 such officers of the Corporation as
shall be designated from time to time by the Board of Directors or Compensation
Committee and shall possess and may exercise such additional powers and
authority as may be delegated to it by the Board of Directors from time to time.
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), review generally the internal
auditing procedures of the Corporation and exercise such additional powers and
authority as may be delegated to it by the Board of Directors from time to time.
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, 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 by unanimous written consent without a meeting to the extent and in
the manner authorized by the laws of the State of Delaware.
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 annually by the
Board of Directors. Each officer shall hold office at the pleasure of the Board
of Directors except as may otherwise be approved by the Board of Directors, 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 and Chief Executive Officer, 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 of Directors, except as may otherwise
be approved by the Board of Directors, 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 of Directors or, in case of officers other than
the Chairman of the Board, if not so prescribed or determined by the Board of
Directors, 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 employee or agent to give bond for the faithful performance of duties in
such form and with such sureties as the Board of Directors 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:
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<PAGE>
(a) Chairman of the Board and Chief Executive Officer. The Chairman
-------------------------------------------------
of the Board and Chief Executive Officer (sometimes referred to herein as the
"Chairman of the Board"), when present, shall preside at all meetings of the
stockholders (unless another officer is authorized to do so by the Board of
Directors) 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.
(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 of Directors, or because of the inability to
act, of the Chairman of the Board, perform all duties of the Chairman of the
Board and preside at all meetings of the stockholders (except as provided in
paragraph (a) of this Section 2) 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 chief executive officer or the then senior executive officer
if the Board of Directors 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 of Directors, exercise the powers and perform the duties
pertaining to the office of president, except that if one or more executive vice
presidents or 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 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 chief executive officer or the then senior executive officer if the Board of
Directors 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
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<PAGE>
the Board of Directors, all the powers and duties commonly incident to such
office. 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 the chief executive
officer or the then senior executive officer 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 chief executive officer or the then senior executive officer
if the Board of Directors 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.
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 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 of Directors. 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.
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<PAGE>
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 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
capital stock.
Section 3. Record Dates. 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 or less than
the minimum number of days prior to any such action permitted by the laws of the
State of Delaware. If no such record date is fixed by the Board of Directors,
the record date shall be that prescribed by the laws of the State of Delaware.
A determination of stockholders of record entitled to notice of or to vote at a
meeting of stockholders
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<PAGE>
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 chief executive officer or the then senior executive officer if the Board of
Directors 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 of Directors may authorize to make such designations.
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 the laws of the State of Delaware or authorized by express
resolution of the Board of Directors.
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<PAGE>
ARTICLE IX
NOTICES
Section 1. Requirements of Notice. Whenever notice is required to be
----------------------
given by the laws of the State of Delaware, the Restated Certificate of
Incorporation or these By-Laws, it shall not mean personal notice unless so
specified.
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 the laws of the State of Delaware, 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 meeting of stockholders and
presence of any director at any meeting of the Board of Directors or any
committee thereof shall constitute a waiver of notice of such meeting to the
extent authorized by the laws of the State of Delaware.
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, and any officer of the Corporation may authorize one or more
persons, 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 of Directors, 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 meetings of
stockholders and proxies for such meetings in any company in which the
Corporation may hold voting securities.
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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 such a director or officer serving at the written
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 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 Relating to an Action or
---------------------------------------------------------
Suit by or in the Right of the Corporation. 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 or officer 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
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<PAGE>
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 or officer 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 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 independent legal counsel in a written opinion, or (3) by the
stockholders, that indemnification of the director or officer 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,
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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 or officer, authorize the Corporation's counsel to represent such
person, in any
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<PAGE>
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 or officer. The right to
indemnification or advances as granted by this Article shall be enforceable by
the director or officer 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
or advancement of expenses, 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 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
directors, its independent legal counsel, and its stockholders) that the
claimant 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 or
officer 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,
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<PAGE>
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 altered, amended or repealed, and new By-Laws may
be made, by the affirmative vote of a majority of the directors then in office.
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<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-3 of our report dated August 2, 1996, except as to Note 16,
which is as of September 10, 1996 and except as to the pooling of interests with
Valley Industries, Inc. and with Squeri Food Service, Inc. which is as of
November 14, 1996 relating to the financial statements and financial statement
schedules, which appears in U.S. Foodservice's (formerly JP Foodservice, Inc.)
Form 10-K/A-1/A-2 for the year ended June 27, 1998. We also consent to the
references to us under the heading "Experts" in such Registration Statement.
/s/ PRICEWATERHOUSECOOPERS LLP
PRICEWATERHOUSECOOPERS LLP
Baltimore, Maryland
June 21, 1999
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
The Board of Directors
U.S. Foodservice:
We consent to incorporation by reference in this registration statement on Form
S-3 of U.S. Foodservice of our report dated August 14, 1998, relating to the
consolidated balance sheets of U.S. Foodservice and Subsidiaries as of June 28,
1997 and June 27, 1998, and the related consolidated statements of operations,
stockholders' equity, and cash flows for the years then ended, which report
appears in the Form 10-K/A-2 of U.S. Foodservice for the year ended June 27,
1998 and to the reference to our firm under the heading "Experts" in such
registration statement.
/s/ KPMG LLP
Baltimore, Maryland
June 21, 1999
<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 on Form S-3 of our report dated June 17, 1996, with respect to
the combined statements of earnings, stockholders' and partners' equity, and
cash flows of Valley Industries, Inc. and Subsidiaries and Z Leasing Company (A
General Partnership) for the year ended January 31, 1996, which report appears
in the Form 10-K/A-2 of U.S. Foodservice for the year ended June 27, 1998 and to
the reference to our firm under the heading "Experts" in such registration
statement.
/s/ KPMG LLP
Baltimore, Maryland
June 21, 1999
<PAGE>
EXHIBIT 23.3
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Form S-3 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 Form 10-K
dated September 24, 1998, as amended by Form 10-K/A-2, and to all references to
our Firm included in this Registration Statement.
/s/ ARTHUR ANDERSEN LLP
Philadelphia, PA
June 21, 1999
