-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, FMYVxKLdUcSMizNOtQUZ6IEnkQ5XTWiAOSWlQ17dLT1Hr+1DapiMFF2Bt0BmgWZE 1o6Uq03tWSCZ9LBKGoY3Tg== 0000950131-97-005591.txt : 19970918 0000950131-97-005591.hdr.sgml : 19970918 ACCESSION NUMBER: 0000950131-97-005591 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 19970915 SROS: NYSE SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: JP FOODSERVICE INC CENTRAL INDEX KEY: 0000928395 STANDARD INDUSTRIAL CLASSIFICATION: WHOLESALE-GROCERIES & GENERAL LINE [5141] IRS NUMBER: 521634568 STATE OF INCORPORATION: DE FISCAL YEAR END: 0629 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: SEC FILE NUMBER: 005-43415 FILM NUMBER: 97680695 BUSINESS ADDRESS: STREET 1: 9830 PATUXENT WOODS WY CITY: COLUMBIA STATE: MD ZIP: 21046 BUSINESS PHONE: 4103127100 MAIL ADDRESS: STREET 1: 9830 PATUXENT WOODS WAY CITY: COLUMBIA STATE: MD ZIP: 21046 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: RYKOFF SEXTON INC CENTRAL INDEX KEY: 0000085973 STANDARD INDUSTRIAL CLASSIFICATION: WHOLESALE-GROCERIES & RELATED PRODUCTS [5140] IRS NUMBER: 952134693 STATE OF INCORPORATION: DE FISCAL YEAR END: 0629 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 613 BALITIMORE DRIVE CITY: WILHES-BARRE STATE: PA ZIP: 18702-7944 BUSINESS PHONE: 7178307103 MAIL ADDRESS: STREET 1: 613 BALTMORE DRIVE CITY: WILKES-BARRE STATE: PA ZIP: 18702-7944 FORMER COMPANY: FORMER CONFORMED NAME: RYKOFF S E & CO DATE OF NAME CHANGE: 19850124 SC 13D/A 1 AMDT #1 TO SCHEDULE 13D UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 SCHEDULE 13D Under the Securities Exchange Act of 1934 (Amendment No. 1) JP Foodservice, Inc. - -------------------------------------------------------------------------------- (Name of Issuer) Common Stock, Par Value $.10 Per Share - -------------------------------------------------------------------------------- (Title of Class of Securities) 46623210-5 - -------------------------------------------------------------------------------- (CUSIP Number) Richard J. Martin Executive Vice President and Chief Financial Officer Rykoff-Sexton, Inc. 613 Baltimore Dr. East Mountain Corporate Center Wilkes-Barre, PA 18702-7944 (717) 830-7100 - -------------------------------------------------------------------------------- (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) June 30, 1997 - -------------------------------------------------------------------------------- (Date of Event which Requires Filing of this Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition which is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(b)(3) or (4), check the following box [_]. SCHEDULE 13D
- -------------------------------------------------------------------------------- NAME OF REPORTING PERSON 1 S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON Rykoff-Sexton, Inc. I.R.S. Identification No. 95-2134693 - -------------------------------------------------------------------------------- CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* 2 (a) [_] (b) [_] - -------------------------------------------------------------------------------- SEC USE ONLY 3 - -------------------------------------------------------------------------------- SOURCE OF FUNDS* 4 WC, OO - -------------------------------------------------------------------------------- CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS 5 REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [_] - -------------------------------------------------------------------------------- CITIZENSHIP OR PLACE OF ORGANIZATION 6 Delaware - -------------------------------------------------------------------------------- SOLE VOTING POWER 7 NUMBER OF 4,495,149 shares (1) (See Item 5) SHARES BENEFICIALLY ------------------------------------------------------- OWNED BY SHARED VOTING POWER EACH REPORTING 8 PERSON WITH ------------------------------------------------------- SOLE DISPOSITIVE POWER 9 4,495,149 shares (1) (See Item 5) ------------------------------------------------------- SHARED DISPOSITIVE POWER 10 - -------------------------------------------------------------------------------- AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 11 4,495,149 shares (1) (See Item 5) - ------------------------------------------------------------------------------- CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (9) EXCLUDES CERTAIN SHARES* 12 [_] - ------------------------------------------------------------------------------- PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 9 13 16.8% (2) - ------------------------------------------------------------------------------- TYPE OF REPORTING PERSON 14 CO, HC - --------------------------------------------------------------------------------
(1) The reporting person disclaims beneficial ownership of all such shares pursuant to Rule 13d-4 under the Securities Exchange Act of 1934, as amended. Beneficial ownership of such shares is being reported hereunder solely as a result of the option (the "Option") granted pursuant to the JP Stock Option Agreement described in Item 4 hereof. Rykoff-Sexton, Inc. ("RSI") expressly disclaims any beneficial ownership of such shares of JP Common Stock which are obtainable by RSI upon exercise of the Option because the Option is exercisable only in the circumstances set forth in Item 4, none of which has occurred as of the date hereof. (2) Gives effect to the issuance of JP Common Stock subject to this option. 2 Item 1. Security and Issuer This statement relates to shares of common stock, par value $.10 per share (the "JP Common Stock"), of JP Foodservice, Inc. ("JP"). The address of JP's principal executive offices is 9830 Patuxent Woods Drive, Columbia, Maryland 21046. Item 2. Identity and Background (a) - (c) and (f). This Schedule 13D is being filed by Rykoff-Sexton, Inc., a corporation organized and existing under the laws of the State of Delaware. RSI is a distributor of food and related non-food items to restaurants and to other food providers. RSI's principal offices are located at 613 Baltimore Dr., East Mountain Corporate Center, Wilkes-Barre, Pennsylvania 18702-6980. Each executive officer and each director of RSI is a citizen of the United States, other than Mark Van Stekelenburg and Jan W. Jeurgens, who are both citizens of the Netherlands. The name, business address, and present principal occupation of each executive officer and director is set forth in Annex A to this Schedule 13D, which is specifically incorporated herein by reference. Merrill Lynch Capital Partners, Inc., Merrill Lynch Capital Appreciation Partnership No. B-XVIII, L.P., Merrill Lynch Kecalp L.P. 1994, ML Offshore LBO Partnership No. B-XVIII, ML IBK Positions, Inc., MLCP Associates L.P. No. II, MLCP Associates L.P. No. IV, Merrill Lynch Kecalp L.P. 1991, Merrill Lynch Capital Appreciation Partnership No. XIII, L.P., ML Offshore LBO Partnership No. XIII, ML Employees LBO Partnership NO. I, L.P., Merrill Lynch Kecalp L.P. 1981, and Merchant Banking L.P. No. II (each, an "ML Entity" and collectively, the "ML Entities") beneficially own approximately 36.4% of the outstanding RSI common stock. However, the ML Entities have entered into a Standstill Agreement, dated May 17, 1996, and, as a result thereof, are not deemed to be controlling persons of RSI. The preceding summary of the Standstill Agreement is qualified in its entirety by reference to the full text of such agreement, which is included as Exhibit 10.39 to RSI's Annual Report on Form 10-K for the fiscal year ended April 27, 1996, filed July 26, 1996 ("RSI 10-K"), and is hereby incorporated herein by reference. (d) - (e). During the last five years, neither RSI nor, to the best knowledge of RSI, any executive officer or director of RSI, has been (i) convicted in a criminal proceeding (excluding traffic violations and similar misdemeanors), or (ii) a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding has been or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws. Item 3. Source and Amount of Fund or Other Consideration Pursuant to the JP Stock Option Agreement described in Item 4 (the "JP Stock Option Agreement"), JP has granted to RSI an option (the "Option") to purchase up to 4,495,149 shares of JP Common Stock at a price of $30.125 per share, exercisable only upon the occurrence of certain events. The exercise of the Option to purchase the full number of shares of JP Common Stock currently covered thereby would require aggregate funds of approximately $135,416,364. If RSI were to purchase shares of JP Common Stock pursuant to the JP Stock Option Agreement, RSI currently anticipates that such funds would be provided from RSI's working capital and from borrowings from other sources yet to be determined. Item 4. Purpose of Transaction On June 30, 1997, RSI, Hudson Acquisition Corp., a Delaware corporation and a wholly-owned subsidiary of JP ("Acquisition Corp."), and JP entered into a Agreement and Plan of Merger (as amended, the "Merger Agreement"), pursuant to which RSI will be merged with and into Acquisition Corp. (the "Merger"). On September 3, 1997, the parties to the Merger Agreement entered into Amendment No. 1 to Merger Agreement ("Amendment No. 1"). The JP Common Stock issued and outstanding will remain issued and outstanding shares of common stock of JP and will not be affected by the Merger. The Merger will be a tax-free reorganization and will be accounted for as a pooling of interests. The Merger is subject to a number of conditions set forth in the Merger Agreement. The Merger Agreement, as originally executed and delivered, is included as Exhibit 1 hereto and is hereby incorporated herein by reference. Amendment No. 1 is included as Exhibit 1.1 hereto and is hereby incorporated herein by reference. 3 As a condition and inducement to RSI's entering into the Merger Agreement (and a reciprocal stock option agreement), JP entered into the JP Stock Option Agreement with RSI. Pursuant to the JP Stock Option Agreement, JP has granted to RSI an option to purchase up to 4,495,149 shares (the "Option Shares") of JP Common Stock at a price of $30.125 per share, exercisable only upon the occurrence of certain events. Under certain circumstances set forth in the JP Stock Option Agreement, RSI, as grantee of the Option, may surrender the Option to JP in exchange for a formula payment based on the difference (reduced by the amount of any termination fee paid by JP to RSI pursuant to the Merger Agreement) between the price paid to JP or its stockholders in certain competing transactions involving the acquisition of JP and exercise price of the Option. The JP Stock Option Agreement is included as Exhibit 2 hereto and is hereby incorporated herein by reference. Pursuant to the Merger Agreement, upon completion of the transaction, Jim Miller, current Chairman, President and Chief Executive Officer of JP, will be Chairman and Chief Executive Officer of the combined company, and Mark Van Stekelenburg, current Chairman and Chief Executive Officer of RSI, will be Vice Chairman and President of the combined company. The company's board will consist of the nine current JP directors, seven current RSI directors, and one new independent director to be added after closing. Pursuant to the Merger Agreement, JP has agreed, during the period prior to the Merger, that neither it nor its subsidiaries shall pay dividends except for certain intercompany dividends. Except as stated in this Item 4, RSI has no plans or proposals which relate to or would result in any of the matters set forth in clauses (a) through (j) of Item 4 of Schedule 13D. The preceding summary of certain provisions of the Merger Agreement, Amendment No. 1 and the JP Stock Option Agreement, copies of which are filed as exhibits hereto, is not intended to be complete and is qualified in its entirety by reference to the full text of such agreements. Item 5. Interest in Securities of the Issuer (a) and (b). Pursuant to the JP Stock Option Agreement, RSI has the right, exercisable only in certain circumstances, none of which has occurred as of the date hereof, to acquire up to 4,495,149 shares of JP Common Stock, which represents beneficial ownership of approximately 19.9% of the shares of JP Common Stock currently outstanding. If RSI were to acquire such shares, it would have sole voting and, subject to certain restrictions set forth in the JP Stock Option Agreement, investment power with respect thereto. Because of the limited circumstances in which the option granted under the JP Stock Option Agreement is exercisable, RSI disclaims beneficial ownership of such shares of JP Common Stock subject to the JP Stock Option Agreement. To the best of RSI's knowledge, no executive officer or director of RSI beneficially owns any shares of JP Common Stock. (c) Except to the extent of transactions in a fiduciary capacity, there have been no transactions in shares of JP Common Stock by RSI, or, to the best knowledge of RSI, any of RSI's executive officers and directors during the past 60 days. (d) To the best of RSI's knowledge, no other person has the right to receive or the power to direct the receipt of dividends from, or the proceeds from the sale of, the JP Common Stock. (e) Not applicable. Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer On June 30, 1997, in connection with the execution of the Merger Agreement, the ML Entities, who hold in the aggregate approximately 36.4% of the outstanding shares (the "ML Shares") of RSI Common Stock as of such date, entered into a Support Agreement (as amended and restated, the "Support Agreement"), dated as of June 30, 1997, with JP, and acknowledged by RSI. Pursuant to the Support Agreement, inter alia, the ML Entities have agreed not ---------- to take certain actions during the term of the Support Agreement relating to the disposition of the businesses or assets of JP or RSI or their respective subsidiaries, or the acquisition of the voting securities of JP or RSI or their respective subsidiaries, or the merger or consolidation of JP or RSI or any of their respective subsidiaries with or into any corporation or other entity, other than the Merger or related transactions. The Support Agreement will terminate in the event that the Merger Agreement is terminated in accordance with its terms. The preceding summary of the Support Agreement is qualified in its entirety by reference to the full text of such Support Agreement, which is included as Exhibit 3 hereto and is hereby incorporated herein by reference. 4 A copy of the JP Stock Option Agreement is included as Exhibit 2 hereto and is incorporated herein by reference. The rights and obligations of RSI and JP under the JP Stock Option Agreement are subject to all required regulatory approvals. A copy of the Merger Agreement is included as Exhibit 1 hereto and a Copy of Amendment No. 1 is included as Exhibit 1.1 hereto, and each is incorporated herein by reference. Except as set forth in Items 3, 4, 5 and 6 neither RSI nor, to the best knowledge of RSI, any of its directors or executive officers, has any contracts, arrangements, understandings or relationships (legal or otherwise) with any other person with respect to any securities of JP. Item 7. Material to Be Filed as Exhibits 1. Agreement and Plan of Merger, dated as of June 30, 1997, by and between Rykoff-Sexton, Inc., Hudson Acquisition Corp. and JP Foodservice, Inc. (incorporated by reference to Exhibit 1 to the Schedule 13D of Rykoff- Sexton, Inc. filed on July 10, 1997). 1.1. Amendment No. 1 to Agreement and Plan of Merger, dated as of September 3, 1997, by and among Rykoff-Sexton, Inc., JP Foodservice, Inc., and Hudson Acquisition Corp. 2. Stock Option Agreement, dated as of June 30, 1997, by and between JP Foodservice, Inc., as issuer, and Rykoff-Sexton, Inc., as grantee (incorporated by reference to Exhibit 2 to the Schedule 13D of Rykoff- Sexton, Inc. filed on July 10, 1997). 3. Amended and Restated Support Agreement, dated as of June 30, 1997, by and between JP Foodservice, Inc., on the one hand, and the stockholders of Rykoff-Sexton, Inc. listed on the signature pages thereto, on the other hand, and acknowledged by Rykoff-Sexton, Inc. 4. Standstill Agreement, dated May 17, 1996, by and between Rykoff-Sexton, Inc., on the one hand, and the other Persons set forth on the signature pages thereto, on the other hand (incorporated by reference to Exhibit 10.39 of the RSI 10-K). 5. Stock Option Agreement, dated as of June 30, 1997, by and between Rykoff-Sexton, Inc., as issuer, and JP Foodservice, Inc., as grantee (incorporated by reference to Exhibit 99.2 of the RSI Form 8-K, filed July 10, 1997, dated as of June 30, 1997). Signature After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct. RYKOFF-SEXTON, INC. September 15, 1997 By: /s/ Richard J. Martin -------------------------- ---------------------------------- Date Richard J. Martin Executive Vice President and Chief Financial Officer 5 ANNEX A Identity and Background ----------------------- The following table sets forth the names, addresses and principal occupations of the executive officers and directors of Rykoff-Sexton, Inc. ("RSI"). Except as set forth below, the principal business address of each director and executive officer is the address of RSI, 613 Baltimore Dr., East Mountain Corporate Center, Wilkes-Barre, Pennsylvania 18702-6944. Each of such directors and executive officers is a citizen of the United States, other than Mark Van Stekelenburg and Jan W. Jeurgens, who are both citizens of the Netherlands.
Directors Name and Business Address Present Principal Occupation or Employment - --------------------------------------------------------------------------- Mark Van Stekelenburg Chairman of the Board, President and CEO of Rykoff-Sexton, Inc. Matthias B. Bowman Vice Chairman of Investment Banking at Merrill World Financial Center, Lynch & Co., Inc. and President of North Tower Merrill Lynch Capital Partners; Director 250 Vesey St. of SMG II Holdings Corporation New York, NY 10281 Richard Fink Chairman of G & K Services, Inc. 5995 Opus Parkway Minnetonka, MN 55343 Albert J. Fitzgibbons, III Partner of Stonington Partners, 767 Fifth Avenue, 48th Floor Inc.; Director of Borg-Warner New York, NY 10153 Automotive, Inc., Borg-Warner Security Corporation, Dictaphone Corporation and United Artists Theatre Circuit, Inc. Jan W. Jeurgens Retired Sunil C. Khanna Consultant to Merrill Lynch Capital Partners; 767 Fifth Avenue, 48th Floor Director of Pathmark Stores, Inc. and New York, NY 10153 Supermarkets General Holdings Corporation James I. Maslon Retired James P. Miscoll Director of American International Group, Inc., Coast Federal Financial, Inc., MK Gold Company, MotivePower Industries, Inc. and U.S. Rentals, Inc. Neil I. Sell Partner in the law firm of Maslon Edelman Borman & 3300 Norwest Center Brand, L.L.P.; Director of Grand Casinos, Inc. 90 South Seventh Street Minneapolis, MN 55402-4140 Bernard Sweet Director of G & K Services, Inc. Robert W. Williamson President & CEO of Merrill Lynch International World Financial Center, Banks North Tower 250 Vesey Street New York, NY 10281
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Executive Officers Name and Business Address Present Principal Occupation or Employment - --------------------------------------------------------------------------- Mark Van Stekelenburg Chairman of the Board, President and CEO of Rykoff-Sexton, Inc. Harold E. Feather Executive Vice President, Strategic Planning of Rykoff-Sexton, Inc. and Executive Vice President, Operations of Rykoff-Sexton, Inc.'s Distribution Division William J. Caskey Executive Vice President of Rykoff-Sexton, Inc. and Chief Executive Officer of Rykoff-Sexton, Inc.'s Marketing Division Robert J. Harter, Jr. Senior Vice President, Administration, General Counsel and Secretary of Rykoff-Sexton, Inc. Richard J. Martin Executive Vice President and Chief Financial Officer of Rykoff-Sexton, Inc. Timothy Buckley Vice President of Rykoff-Sexton, Inc. and President of Rykoff-Sexton, Inc.'s Targeted Specialty Services, Inc. subsidiary Kenneth B. Kozel Vice President and Treasurer of Rykoff-Sexton, Inc. Christopher Mellon Vice President and Controller of Rykoff-Sexton, Inc.
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Exhibit Number Description - -------------------------------------------------------------------------------- 1. Agreement and Plan of Merger, dated as of June 30, 1997, by and between Rykoff-Sexton, Inc., Hudson Acquisition Corp. and JP Foodservice, Inc. (incorporated by reference to Exhibit 1 to the Schedule 13D of Rykoff-Sexton, Inc. filed on July 10, 1997). 1.1. Amended No. 1 to Agreement and Plan of Merger, dated as of September 3, 1997, by and among Rykoff-Sexton, Inc., JP Foodservice, Inc. and Hudson Acquisition Corp. 2. Stock Option Agreement, dated as of June 30, 1997, by and between JP Foodservice, Inc., as issuer, and Rykoff-Sexton, Inc., as grantee (incorporated by reference to Exhibit 2 to the Schedule 13D of Rykoff-Sexton, Inc. filed on July 10, 1997). 3. Amended and Restated Support Agreement, dated as of June 30, 1997, by and between JP Foodservice, Inc., on the one hand, and the stockholders of Rykoff-Sexton, Inc. listed on the signature pages thereto, on the other hand, and acknowledged by Rykoff- Sexton, Inc. 4. Standstill Agreement, dated May 17, 1996, by and between Rykoff-Sexton, Inc., on the one hand, and the other Persons set forth on the signature pages thereto, on the other hand (incorporated by reference to Exhibit 10.39 of the RSI 10-K). 5. Stock Option Agreement, dated as of June 30, 1997, by and between Rykoff-Sexton, Inc., as issuer, and JP Foodservice, Inc., as grantee (incorporated by reference to Exhibit 99.2 of the RSI Form 8-K, filed July 10, 1997, dated as of June 30, 1997).
8 EX-1.1 2 AMND #1 TO AGREEMENT & PLAN OF MERGER 9/1/97 EXHIBIT 1.1 CONFORMED COPY AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF MERGER AMENDMENT NO. 1 (this "Amendment"), dated as of September 3, 1997, to the Agreement and Plan of Merger (the "Merger Agreement"), dated as of June 30, 1997, by and among JP Foodservice, Inc., a Delaware corporation ("JPFI"), Rykoff-Sexton, Inc., a Delaware corporation ("RSI"), and Hudson Acquisition Corp., a Delaware corporation and a wholly-owned subsidiary of JP Foodservice ("Acquisition"). WHEREAS, JPFI, RSI and Acquisition have previously executed and delivered the Merger Agreement; and WHEREAS, JPFI, RSI and Acquisition desire to amend the Merger Agreement as set forth herein and pursuant to Section 7.3 thereof; NOW, THEREFORE, JPFI, RSI and Acquisition agree as follows: 1. Amendment of Section 2.1(e) of Merger Agreement. The fourth line of subsection (i) of Section 2.1(e) of the Merger Agreement is hereby amended by deleting therefrom the word "exercisable" and substituting in its place the word "unexercised". 2. Amendment of Section 4.1(a) of Merger Agreement. Subsection (ii) of Section 4.1(a) of the Merger Agreement is hereby amended by deleting therefrom the words "does not exceed 250,000 shares of RSI Common Stock in the aggregate);" and substituting therefor the words "does not exceed the lesser of (x) 400,000 shares of RSI Common Stock in the aggregate and (y) the number of shares of RSI Common Stock subject to RSI Employee Stock Options issued during RSI's fiscal year ended June 28, 1997 and so long as no RSI Employee Stock Option issued pursuant to this Section 4.1(a) (ii) shall contain any terms providing for, or otherwise permit or give rise to any right to, accelerated vesting, the releasing of restrictions or any payment (in cash or otherwise) as a result of the consummation of the Merger or any of the other transactions contemplated by this Agreement)". 3. Governing Law. This Amendment shall be governed by, and construed in accordance with, the laws of the State of Delaware, regardless of the laws that might otherwise govern under applicable principles of conflict of laws thereof. 4. Counterparts. This Amendment may be executed in one or more counterparts, all of which shall be considered one and the same agreement and shall become effective when one or more counterparts have been signed by each of the parties and delivered to the other parties. 5. Merger Agreement Confirmed. Except as amended hereby, the Merger Agreement is ratified and confirmed in all respects. IN WITNESS WHEREOF, JPFI, RSI and Acquisition have caused this Agreement to be signed by their respective officers thereunto duly authorized, all as of the date first written above. JP FOODSERVICE, INC. By:/s/ David M. Abramson --------------------- Name: David M. Abramson Title: Senior Vice President and General Counsel RYKOFF-SEXTON, INC. By:/s/ Mark Van Stekelenburg ------------------------- Name: Mark Van Stekelenburg Title: Chairman and Chief Executive Officer HUDSON ACQUISITION CORP. By:/s/ David M. Abramson --------------------- Name: David M. Abramson Title: Senior Vice President and General Counsel [Amendment No. 1--Merger Agreement] 2 EX-3 3 AMND & RESTATED SUPPORT AGREEMENT 6/30/97 EXHIBIT 3 CONFORMED COPY AMENDED AND RESTATED SUPPORT AGREEMENT -------------------------------------- AMENDED AND RESTATED AGREEMENT, dated as of June 30, 1997, by and among JP FOODSERVICE, INC., a Delaware corporation ("JPFI") and the other persons whose names are set forth on the signature pages hereto (collectively, the "Stockholders"). WHEREAS, the parties hereto have previously entered into, and Rykoff- Sexton, Inc., a Delaware corporation ("Rykoff-Sexton"), has previously acknowledged, a Support Agreement, dated as of June 30, 1997 (the "Original Support Agreement"); and WHEREAS, concurrently with the execution and delivery of the Original Support Agreement, JPFI, Hudson Acquisition Corp., a Delaware corporation and a wholly-owned subsidiary of JPFI ("Merger Sub") and Rykoff-Sexton, entered into an Agreement and Plan of Merger (the "Merger Agreement"; capitalized terms used without definition herein having the meanings ascribed thereto in the Merger Agreement); WHEREAS, the Stockholders are the beneficial owners of the number of shares of Rykoff Common Stock set forth in Schedule I hereto (the "Subject Shares"); and WHEREAS, approval of the Merger Agreement by the stockholders of Rykoff is a condition to the consummation of the Merger; and WHEREAS, as a condition to its entering into the Merger Agreement, JPFI has required that the Stockholders agree, and the Stockholders have agreed, to enter into the Original Support Agreement; and WHEREAS, the parties to the Original Support Agreement, and Rykoff-Sexton, wish to amend and restate such Original Support Agreement, as set forth herein; NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements set forth herein, the parties hereto agree as follows: Section 1. Agreement to Vote. (a) Each Stockholder hereby agrees to attend the Rykoff Stockholders Meeting, in person or by proxy, and to vote (or cause to be voted) all Subject Shares, and any other voting securities of Rykoff, whether issued heretofore or hereafter, that such Stockholder owns or has the right to vote, for approval and adoption of the Merger Agreement and the Merger. Such agreement to vote shall apply also to any adjournment or adjournments of the Rykoff Stockholders Meeting, and to any other meeting of stockholders at which any item of business referred to in the preceding sentence is presented for approval. (b) To the extent inconsistent with the foregoing provisions of this Section 1, each Stockholder hereby revokes any and all previous proxies with respect to such Stockholder's Subject Shares or any other voting securities of Rykoff. Section 2. No Solicitation. No Stockholder shall, directly or indirectly, solicit or encourage (including by way of furnishing information), or authorize any individual, corporation or other entity to solicit or encourage (including by way of furnishing information), from any third party any inquiries or proposals relating to, or conduct negotiations or discussions with any third party with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes, or that may reasonably be expected to lead to, any proposal or offer relating to the disposition of business or assets of Rykoff or JPFI or their respective subsidiaries, or the acquisition of the voting securities of Rykoff or JPFI or their respective subsidiaries, or the merger or consolidation of Rykoff or JPFI or any of their respective subsidiaries with or to any corporation or other entity other than as provided in the Merger Agreement, the Option Agreements or the Support Agreement (and the Stockholders shall promptly notify JPFI of all of the relevant details relating to all inquiries and proposals which such Stockholders may receive relating to any such matters). Section 3. Securities Act Covenants and Representations. Each Stockholder hereby agrees and represents to JPFI as follows: (a) Such Stockholder has been advised that the offering, sale and delivery of JPFI Common Stock pursuant to the 2 Merger will be registered under the Securities Act on a Registration Statement on Form S-4. Such Stockholder has also been advised, however, that to the extent such Stockholder is considered an "affiliate" of Rykoff at the time the Merger Agreement is submitted to a vote of the stockholders of Rykoff any public offering or sale by such Stockholder of any shares of JPFI Common Stock received by such Stockholder in the Merger will, under current law, require either (i) the further registration under the Securities Act of any shares of JPFI Common Stock to be sold by such Stockholder, (ii) compliance with Rule 145 promulgated by the SEC under the Securities Act or (iii) the availability of another exemption from such registration under the Securities Act. (b) Such Stockholder has read this Agreement and the Merger Agreement and has discussed their requirements and other applicable limitations upon such Stockholder's ability to sell, transfer or otherwise dispose of shares of JPFI Common Stock, to the extent such Stockholder believed necessary, with such Stockholder's counsel or counsel for Rykoff. (c) Such Stockholder also understands that stop transfer instructions will be given to JPFI's transfer agent with respect to JPFI Common Stock and that a legend will be placed on the certificates for the JPFI Common Stock issued to such Stockholder, or any substitutions therefor, to the extent such Stockholder is considered an "affiliate" of Rykoff at the time the Merger Agreement is submitted to a vote of the stockholders of Rykoff. Section 4. Pooling Covenants and Representations. Each Stockholder hereby agrees and represents to JPFI that such Stockholder will not sell, transfer or otherwise dispose of any securities of Rykoff or of any shares of JPFI Common Stock received by such Stockholder in the Merger or other shares of capital stock of JPFI during the period beginning 30 days prior to the Effective Time and ending at such time as results covering at least 30 days of combined operations of Rykoff and JPFI have been published by JPFI, in the form of a quarterly earnings report, an effective registration statement filed with the SEC, a report to the SEC on Form 10-K, 10-Q or 8-K, or any other public filing or announcement which includes the combined results of operations, except for transfers or other dispositions that, taking into account the actions of other affiliates of Rykoff, 3 will not prevent JPFI from accounting for the Merger as a pooling of interests. Section 5. Further Assurances. Each of JPFI and the Stockholders shall execute and deliver such additional instruments and other documents and shall take such further actions as may be necessary or appropriate to effectuate, carry out and comply with all of its obligations under this Agreement. Without limiting the generality of the foregoing, none of JPFI or any of the Stockholders shall enter into any agreement or arrangement (or alter, amend or terminate any existing agreement or arrangement) if such action would materially impair the ability of any party to effectuate, carry out or comply with all the terms of this Agreement. Section 6. Representations and Warranties of JPFI. JPFI represents and warrants to each Stockholder as follows: Each of this Agreement and the Merger Agreement has been approved by the Board of Directors of JPFI, representing all necessary corporate action on the part of JPFI other than approval of the Merger Agreement by the stockholders of JPFI. Each of this Agreement and the Merger Agreement has been duly executed and delivered by a duly authorized officer of JPFI. Each of this Agreement and the Merger Agreement constitutes a valid and binding agreement of JPFI, enforceable against JPFI in accordance with its terms, except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws of general application which may affect the enforcement of creditors' rights generally and by general equitable principles. JPFI covenants and agrees that, effective as of the Effective Time, JPFI shall assume the rights and obligations of Rykoff under that certain Registration Rights Agreement, dated as of May 17, 1996, by and among Rykoff and the other persons whose signatures are set forth on the signature pages thereto pursuant to an agreement in form and substance satisfactory to JPFI and such other persons. Section 7. Representations and Warranties of Stockholders. Each Stockholder represents and warrants to JPFI that this Agreement (i) has been duly authorized, executed and delivered by such Stockholder and (ii) constitutes the valid and binding agreement of such Stockholder, enforceable against such Stockholder in accordance with its terms, except as may be 4 limited by applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws of general application which may affect the enforcement of creditors' rights generally and by general equitable principles. Each such Stockholder is the record and beneficial owner of the Subject Shares set forth opposite its respective name on Schedule I. The Subject Shares listed next to the name of such Stockholder on Schedule I hereto are the only voting securities of Rykoff owned (beneficially or of record) by such Stockholder. Neither the execution or delivery of this Agreement nor the consummation by such Stockholder of the transactions contemplated hereby will violate (a) the certificate of incorporation, by-laws, partnership agreement or other organizational document, as applicable, of any such Stockholder, or (b) any provisions of any law, rule or regulation applicable to such Stockholder or any contract or agreement to which such Stockholder is a party, other than such violations described in the foregoing clause (b) as would not prevent or materially delay the performance by such Stockholder of its obligations hereunder or impose any liability or obligation on JPFI. Each Stockholder agrees that, at or prior to the Effective Time, it shall represent to Rykoff and JPFI or their respective counsel that as of the Effective Time it has no plan or intention to (other than incident or pursuant to an Extraordinary Transaction) sell, exchange or otherwise dispose of, or enter into an agreement (a "Sales Agreement") to sell, exchange or otherwise dispose of, shares of JPFI Common Stock during the two-year period immediately following the Effective Time, and moreover that it is not subject to or obligated to enter into any agreement to sell, exchange or otherwise dispose of shares of JPFI Common Stock, if any resulting sale, exchange or disposition would (when taken in combination with actions by other Stockholders and assuming all Sales Agreements are consummated) cause the Stockholders in the aggregate to retain ownership for federal income tax purposes of less than the lesser of (i) 25% of the shares of JPFI Common Stock received by the Stockholders in the aggregate in the Merger or (ii) the Shortfall Percent of the shares of JPFI Common Stock issued in the Merger to stockholders of Rykoff. For purposes of these representations, the phrase "sell, exchange or otherwise dispose of" shall include entry into transactions whereby a Stockholder gives up substantially all the benefits and burdens of ownership in JPFI Common Stock or which otherwise constitute a transfer of ownership of such stock for federal income tax purposes. "Shortfall Percent" shall mean the greater of zero or that percentage which, when added to the following percentage, shall equal 45%: 100% minus the sum of (i) the percent of shares of JPFI Common Stock issuable in the Merger to stockholders of 5 Rykoff that is issuable to the Stockholders and (ii) the percent of shares of JPFI Common Stock issuable in the Merger to stockholders of Rykoff that is issuable to any other persons that can be identified immediately prior to the Effective Time as holding 5% or more of the total number of shares of Rykoff Common Stock outstanding at such time (for which purposes shares held by a family of mutual funds shall, to the extent possible, be identified with separate funds within such family and, to the extent so separately identifiable, treated as separate stockholders). Notwithstanding the foregoing, no Stockholder shall be required to provide the representations described herein if, as result of a change in law (including, without limitation, a change pursuant to Treasury regulations that may be applied, by election or otherwise, to the Merger), the facts intended to be reached by such representation are not a necessary condition for qualification of the Merger under Section 368 of the Internal Revenue Code of 1986, as amended. For purposes of this Section 7, an "Extraordinary Transaction" means a merger, consolidation or other business combination, tender or exchange offer, share exchange, restructuring, recapitalization or other similar transaction involving JPFI, so long as any such transaction is not arranged as part of an overall plan to which such Stockholder is a party and pursuant to which the Merger is also being consummated. Section 8. Effectiveness and Termination. It is a condition precedent to the effectiveness of this Agreement that the Merger Agreement shall have been executed and delivered and be in full force and effect. In the event the Merger Agreement is terminated in accordance with its terms, this Agreement shall automatically terminate and be of no further force or effect. Upon such termination, except for any rights any party may have in respect of any breach by any other party of its or his obligations hereunder, none of the parties hereto shall have any further obligation or liability hereunder. Section 9. Miscellaneous. -------------- (a) Notices, Etc. All notices, requests, demands or other communications required by or otherwise with respect to this Agreement shall be in writing and shall be deemed to have been duly given to any party when delivered personally (by courier service or otherwise), when delivered by telecopy and confirmed by return telecopy, or seven days after being mailed by 6 first-class mail, postage prepaid in each case to the applicable addresses set forth below: If to JPFI: 9830 Patuxent Woods Drive Columbia, Maryland 21046 Attn: David M. Abramson, Esq. Telecopy: (410) 312-7149 with a copy to: Wachtell, Lipton, Rosen & Katz 51 West 52nd Street New York, New York 10019 Attn: Edward D. Herlihy, Esq. Telecopy: (212) 403-2000 If to any Stockholder: Merrill Lynch Capital Partners, Inc. 225 Liberty Street New York, New York 10080-6123 Attn: James V. Caruso Telecopy: (212) 236-7364 with a copy to: Merrill Lynch & Co., Inc. World Financial Center North Tower 250 Vesey Street New York, New York 10281-1323 Attn: Marcia L. Tu, Esq. Telecopy: (212) 449-3207 and a copy to: Shearman & Sterling 599 Lexington Avenue New York, New York 10022 Attn: Bonnie Greaves, Esq. Telecopy: (212) 848-7179 7 If to Rykoff: Rykoff-Sexton, Inc. 1050 Warrenville Road Lisle, Illinois Telecopy No. (717) 830-7112 Attention: Robert J. Harter, Jr., Esq. with a copy to: Jones, Day, Reavis & Pogue 77 West Wacker Chicago, Illinois 10022 Telecopy No.: (312) 782-8585 Attention: Elizabeth Kitslaar, Esq. or to such other address as such party shall have designated by notice so given to each other party. (b) Amendments, Waivers. Etc. This Agreement may not be amended, changed, supplemented, waived or otherwise modified or terminated except by an instrument in writing signed by JPFI, each of the Stockholders and Rykoff. (c) Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of and be enforceable by the parties and their respective successors and assigns, including without limitation in the case of any corporate party hereto any corporate successor by merger or otherwise, and in the case of any individual party hereto any trustee, executor, heir, legatee or personal representative succeeding to the ownership of such party's Subject Shares or other securities subject to this Agreement. Notwithstanding any transfer of Subject Shares, the transferor shall remain liable for the performance of all obligations under this Agreement of the transferor. (d) Entire Agreement. This Agreement embodies the entire agreement and understanding among the parties relating to the subject matter hereof and supersedes all prior agreements and understandings relating to such subject matter, including without limitation the Original Support Agreement. There are no representations, warranties or covenants by the parties hereto relating to such subject matter other than those expressly set forth in this Agreement. 8 (e) Severability. If any term of this Agreement or the application thereof to any party or circumstance shall be held invalid or unenforceable to any extent, the remainder of this Agreement and the application of such term to the other parties or circumstances shall not be affected thereby and shall be enforced to the greatest extent permitted by applicable law, provided that in such event the parties shall negotiate in good faith in an attempt to agree to another provision (in lieu of the term or application held to be invalid or unenforceable) that will be valid and enforceable and will carry out the parties' intentions hereunder. (f) Specific Performance. The parties acknowledge that money damages are not an adequate remedy for violations of this Agreement and that any party may, in its sole discretion, apply to a court of competent jurisdiction for specific performance or injunctive or such other relief as such court may deem just and proper in order to enforce this Agreement or prevent any violation hereof and, to the extent permitted by applicable law, each party waives any objection to the imposition of such relief. (g) Remedies Cumulative. All rights, powers and remedies provided under this Agreement or otherwise available in respect hereof at law or in equity shall be cumulative and not alternative, and the exercise or beginning of the exercise of any thereof by any party shall not preclude the simultaneous or later exercise of any other such right, power or remedy by such party. (h) No Waiver. The failure of any party hereto to exercise any right, power or remedy provided under this Agreement or otherwise available in respect hereof at law or in equity, or to insist upon compliance by any other party hereto with its obligations hereunder, and any custom or practice of the parties at variance with the terms hereof, shall not constitute a waiver by such party of its right to exercise any such or other right, power or remedy or to demand such compliance. (i) No Third-Party Beneficiaries. This Agreement is not intended to be for the benefit of and shall not be en forceable by any person or entity who or which is not a party hereto. (j) Jurisdiction. Each party hereby irrevocably submits to the exclusive jurisdiction of the Court of Chancery in the State of Delaware or the United States District Court for the 9 Southern District of New York or any court of the State of New York located in the City of New York in any action, suit or proceeding arising in connection with this Agreement, and agrees that any such action, suit or proceeding shall be brought only in such court (and waives any objection based on forum non conveniens or any other objection to venue therein); provided, however, that such consent to jurisdiction is solely for the purpose referred to in this paragraph (j) and shall not be deemed to be a general submission to the jurisdiction of said Courts or in the States of Delaware or New York other than for such purposes. Each party hereto hereby waives any right to a trial by jury in connection with any such action, suit or proceeding. (k) Governing Law. This Agreement and all disputes hereunder shall be governed by and construed and enforced in accordance with the General Corporation Law of the State of Delaware to the fullest extent possible and otherwise by the internal laws of the State of New York without regard to principles of conflicts of law. (l) Name, Captions Gender. The name assigned this Agreement and the section captions used herein are for convenience of reference only and shall not affect the interpretation or construction hereof. Whenever the context may require, any pronoun used herein shall include the corresponding masculine, feminine or neuter forms. (m) Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all of which together shall constitute one instrument. Each counterpart may consist of a number of copies each signed by less than all, but together signed by all, the parties hereto. (n) Limitation on Liability. No Stockholder shall have any liability hereunder for any actions or omissions of any other Stockholder. (o) Expenses. JPFI and Rykoff shall each bear its own expenses, and Rykoff shall bear the reasonable expenses of the Stockholders, incurred in connection with this Agreement and the transactions contemplated hereby, except that in the event of a dispute concerning the terms or enforcement of this Agreement, the prevailing party in any such dispute shall be entitled to reimbursement of reasonable legal fees and disbursements from the other party or parties to such dispute. 10 IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the date first above written. JP FOODSERVICE, INC. By: /s/ James L. Miller --------------------- Name: James L. Miller Title: Chairman, President and Chief Executive Officer MERRILL LYNCH CAPITAL PARTNERS, INC. By: /s/ Matthias B. Bowman ---------------------- Name: Matthias B. Bowman Title: MERRILL LYNCH CAPITAL APPRECIATION PARTNERSHIP NO. B-XVIII, L.P. By: Merrill Lynch LBO Partners No. B-IV, L.P., as General Partner By: Merrill Lynch Capital Partners, Inc., as General Partner By: /s/ Matthias B. Bowman -------------------------- Name: Matthias B. Bowman Title: [AMENDED AND RESTATED SUPPORT AGREEMENT] MERRILL LYNCH KECALP L.P. 1994 By: KECALP Inc., as General Partner By: /s/ Matthias B. Bowman ---------------------- Name: Matthias B. Bowman Title: ML OFFSHORE LBO PARTNERSHIP NO. B-XVIII By: Merrill Lynch LBO Partners No. B-IV, L.P., as Investment General Partner By: Merrill Lynch Capital Partners, Inc., as General Partner By: /s/ Matthias B. Bowman ------------------------ Name: Matthias B. Bowman Title: ML IBK POSITIONS, INC. By: /s/ Matthias B. Bowman ------------------------- Name: Matthias B. Bowman Title: MLCP ASSOCIATES L.P. NO. II By: Merrill Lynch Capital Partners, Inc., as General Partner By: /s/ Matthias B. Bowman ------------------------- Name: Matthias B. Bowman [AMENDED AND RESTATED SUPPORT AGREEMENT] Title: MLCP ASSOCIATES L.P. NO. IV By: Merrill Lynch Capital Partners, Inc., as General Partner By: /s/ Matthias B. Bowman ---------------------- Name: Matthias B. Bowman Title: MERRILL LYNCH KECALP L.P. 1991 By: KECALP Inc., as General Partner By: /s/ Matthias B. Bowman ---------------------- Name: Matthias B. Bowman Title: MERRILL LYNCH CAPITAL APPRECIATION PARTNERSHIP NO. XIII, L.P. By: Merrill Lynch LBO Partners No. IV, L.P., as General Partner By: Merrill Lynch Capital Partners, Inc., as General Partner By: /s/ Matthias B. Bowman ---------------------- Name: Matthias B. Bowman Title: ML OFFSHORE LBO PARTNERSHIP NO. XIII By: Merrill Lynch LBO Partners No. IV, L.P., as Investment General Partner [AMENDED AND RESTATED SUPPORT AGREEMENT] By: Merrill Lynch Capital Partners, Inc., as General Partner By: /s/ Matthias B. Bowman ---------------------- Name: Matthias B. Bowman Title: ML EMPLOYEES LBO PARTNERSHIP NO. I, L.P. By: ML Employees LBO Managers, Inc., as General Partner By: /s/ Matthias B. Bowman ---------------------- Name: Matthias B. Bowman Title: [AMENDED AND RESTATED SUPPORT AGREEMENT] MERRILL LYNCH KECALP L.P. 1987 By: KECALP Inc., as General Partner By: /s/ Matthias B. Bowman ---------------------- Name: Matthias B. Bowman Title: MERCHANT BANKING L.P. NO. II By: Merrill Lynch MBP Inc., as General Partner By: /s/ Matthias B. Bowman ---------------------- Name: Matthias B. Bowman Title: Rykoff hereby consents to the entry by each Stockholder into this Agreement, and the consummation of the transactions expressly contemplated hereby, in each case for purposes of Section 3.1(a) of the that certain Standstill Agreement (the "Standstill Agreement"), dated as of May 17, 1996, by and between RSI and the ML Entities (as defined therein). Rykoff represents and warrants to JPFI that the entry by each Stockholder into this Agreement, and the consummation of the transactions expressly contemplated hereby, each has been previously approved by the affirmative vote of a majority of the Continuing Directors (as defined in the Standstill Agreement) of Rykoff at a meeting at which a Continuing Director Quorum (as defined in the Standstill Agreement) was present. Rykoff also hereby acknowledges and consents to its obligations pursuant to Section 9(o) hereof. RYKOFF-SEXTON, INC. By: /s/ Mark Van Stekelenburg ------------------------- Name: Mark Van Stekelenburg Title: Chairman and Chief Executive Officer [AMENDED AND RESTATED SUPPORT AGREEMENT] Schedule I ---------- Share Ownership Name of Stockholder Shares Owned Beneficially - ------------------- -------------------------
MERRILL LYNCH CAPITAL APPRECIATION 4,357,505 PARTNERSHIP NO. B-XVIII, L.P. MERRILL LYNCH KECALP L.P. 1994 67,879 ML OFFSHORE LBO PARTNERSHIP 2,192,382 NO. B-XVIII ML IBK POSITIONS, INC. 1,440,181 MLCP ASSOCIATES L.P. NO. II 52,257 MLCP ASSOCIATES L.P. NO. IV 13,575 MERRILL LYNCH KECALP L.P. 1991 189,793 MERRILL LYNCH CAPITAL APPRECIATION 1,620,103 PARTNERSHIP NO. XIII, L.P. ML OFFSHORE LBO PARTNERSHIP NO. XIII 41,188 ML EMPLOYEES LBO PARTNERSHIP 40,273 NO. I, L.P. MERRILL LYNCH KECALP L.P. 1987 30,434 MERCHANT BANKING L.P. NO. II 30,434
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