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UNITED STATES SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
Form 10-Q
(Mark One)
[X] QUARTERLY REPORT PURSUANT TO SECTION
13 OR 15(d) OF THE SECURITIES EXCHANGE
ACT OF 1934
For the quarterly period ended March 29, 2003
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the transition period from ____ to ____
Commission File Number 0-20539
PRO-FAC COOPERATIVE, INC.
(Exact Name of Registrant as Specified in its Charter)
New York 16-6036816
(State or other jurisdiction of (IRS Employer
incorporation or organization) Identification Number)
90 Linden Place, PO Box 30682, Rochester, NY 14603-0682
(Address of Principal Executive Offices) (Zip Code)
Registrant's Telephone Number, Including Area Code (585) 383-1850
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding twelve months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days.
YES X NO
------ --------
Indicate by check mark whether the Registrant is an accelerated filer (as
defined in Rule 12b-2 of the Exchange Act).
YES NO X
------ --------
Indicate the number of shares outstanding of each of the issuer's classes of
common stock as of the latest practicable date. As of May 13, 2003.
Common Stock - 1,927,226
PART I. FINANCIAL INFORMATION
ITEM I. FINANCIAL STATEMENTS
Pro-Fac Cooperative, Inc.
Consolidated Statements of Operations, Net Proceeds and Comprehensive Income
(Unaudited)
(Dollars in Thousands)
Three Months Ended Nine Months Ended
-------------------------- -----------------------
March 29, March 30, March 29, March 30,
2003 2002 2003 2002
---------- ------------ ---------- ----------
Net sales $ 0 $ 244,886 $ 103,726 $ 788,667
Cost of sales 0 (190,937) (80,644) (618,185)
---------- ---------- --------- ----------
Gross profit 0 53,949 23,082 170,482
Equity (loss)/income from Agrilink Holdings LLC (for the period December 29,
2002 to March 29, 2003 and the period August 19, 2002 to March 29, 2003,
respectively) (59) 0 3,593 0
Gain from transaction with Birds Eye Foods, Inc. and related agreements 1,186 0 9,176 0
Commercial market value adjustment 560 0 560 0
Selling, administrative, and general expense (for the period December 29, 2002
to March 29, 2003 and the period August 19, 2002 to March 29, 2003,
respectively) (329) 0 (1,139) 0
Selling, administrative, and general expense 0 (31,029) (15,468) (94,796)
Legal matters and settlement expenses (422) 0 (2,007) 0
Gain from pension curtailment 0 0 0 2,472
Other income 0 627 277 1,825
Restructuring 0 0 0 (2,622)
---------- ---------- --------- ---------
Operating income 936 23,547 18,074 77,361
Interest income 1 0 8 0
Interest expense 0 (15,951) (7,747) (51,643)
---------- ---------- --------- ---------
Income before taxes 937 7,596 10,335 25,718
Tax benefit/(provision) (for the period December 29, 2002 to
March 29, 2003 and the period August 19, 2002 to March 29, 2003,
respectively) 417 0 (1,118) 0
Tax provision 0 (2,163) (59) (7,707)
---------- ----------- ---------- ---------
Net income $ 1,354 $ 5,433 $ 9,158 $ 18,011
========== ========== ========= =========
Allocation of net proceeds:
Net income $ 1,354 $ 5,433 $ 9,158 $ 18,011
Dividends on common and preferred stock (1,980) (1,951) (6,368) (6,406)
---------- ---------- --------- ---------
Net (deficit)/proceeds (626) 3,482 2,790 11,605
Allocation from/(to) accumulated deficit 626 (1,633) (2,790) (5,153)
---------- ---------- --------- ---------
Net proceeds available to members $ 0 $ 1,849 $ 0 $ 6,452
========== ========== ========= =========
Estimated allocation of net proceeds available to members:
Payable to members currently $ 0 $ 462 $ 0 $ 1,613
Allocated to members but retained by the Cooperative:
Qualified retains 0 1,387 0 4,839
---------- ---------- --------- ---------
Net proceeds available to members $ 0 $ 1,849 $ 0 $ 6,452
========== ========== ========= ========
Net income $ 1,354 $ 5,433 $ 9,158 $ 18,011
Other comprehensive loss:
Unrealized loss on hedging activity (net of taxes) 0 (16) 0 (390)
---------- ---------- --------- ---------
Comprehensive income $ 1,354 $ 5,417 $ 9,158 $ 17,621
========== ========== ========= =========
The accompanying notes are an integral part of these consolidated financial
statements.
3
Pro-Fac Cooperative, Inc.
Consolidated Balance Sheets
(Unaudited)
(Dollars in Thousands) ASSETS March 29, June 29,
2003 2002
---------- -----------
Current assets:
Cash and cash equivalents $ 78 $ 14,686
Accounts receivable, trade and other, net 0 76,000
Accounts receivable from Birds Eye Foods, Inc. 11,424 0
Current portion of Transitional Services receivable from Birds Eye Foods, Inc. 525 0
Inventories, net 0 294,315
Current investment in CoBank 0 3,347
Prepaid manufacturing expense 0 19,168
Prepaid expenses and other current assets 50 18,770
Current deferred tax asset 254 2,923
---------- -----------
Total current assets 12,331 429,209
Transitional Services receivable from Birds Eye Foods, Inc. 202 0
Investment in Agrilink Holdings LLC 28,638 0
Investment in CoBank 59 6,294
Investment in and advances to joint venture 0 14,586
Property, plant, and equipment, net 0 288,120
Goodwill 0 56,210
Other intangible assets, net 0 11,305
Non-current deferred tax asset 0 4,837
Other assets 0 26,109
---------- -----------
Total assets $ 41,230 $ 836,670
========== ===========
Liabilities and Shareholders' and Members' Capitalization
Current liabilities:
Current portion of long-term debt and
obligations under capital leases $ 0 $ 15,737
Accounts payable 541 71,262
Income taxes payable 0 879
Accrued interest 0 6,255
Other accrued expenses 1,250 48,150
Amounts due members 10,803 15,379
---------- -----------
Total current liabilities 12,594 157,662
Credit Facility with Birds Eye Foods, Inc. 100 0
Obligations under capital leases 0 2,528
Long-term debt 0 623,057
Non-current deferred tax liability 1,372 0
Other non-current liabilities 0 28,918
---------- -----------
Total liabilities 14,066 812,165
Commitments and contingencies
Class B cumulative redeemable preferred stock, liquidation
preference $10 per share; authorized - 500,000 shares; issued and
outstanding 20,643 shares 206 206
Common stock, par value $5, authorized - 5,000,000 shares; issued
and outstanding 1,939,272 and 2,038,553, respectively 9,696 10,193
Shareholders' and members' capitalization:
Retained earnings allocated to members 14,407 17,050
Non-cumulative preferred stock, par value $25, authorized
5,000,000 shares; issued and outstanding 29,457 and
29,847 shares, respectively 736 746
Class A cumulative preferred stock, liquidation preference
$25 per share, authorized 10,000,000 shares; issued and
outstanding 4,604,010 and 4,497,904 shares, respectively 115,100 112,448
Special membership interests 21,733 0
Accumulated deficit (134,714) (115,771)
Accumulated other comprehensive income/(loss):
Unrealized gain on hedging activity 0 206
Minimum pension liability adjustment 0 (573)
---------- ----------
Total shareholders' and members' capitalization 17,262 14,106
---------- ----------
Total liabilities and shareholders' and members' capitalization $ 41,230 $ 836,670
========== ==========
The accompanying notes are an integral part of these consolidated financial
statements.
4
Pro-Fac Cooperative, Inc.
Consolidated Statements of Cash Flows
(Dollars in Thousands)
(Unaudited)
Nine Months Ended
-------------------------------------
March 29, March 30,
2003 2002
-------------- --------------
Cash Flows from Operating Activities:
Net income $ 9,158 $ 18,011
Estimated cash payment due to members 0 (1,613)
Adjustments to reconcile net income to net cash used in operating activities:
Amortization of goodwill and other intangible assets 144 862
Amortization of debt issue costs, amendment costs, and discount on subordinated
promissory notes 1,201 5,098
Depreciation 3,833 22,887
Gain from transaction with Birds Eye Foods, Inc. and related agreements (9,176) 0
Equity income from Agrilink Holdings LLC (for the period August 19, 2002
to March 29, 2003) (3,593) 0
Equity in undistributed earnings of joint venture (277) (1,067)
Change in assets and liabilities:
Accounts receivable 1,818 3,607
Inventories and prepaid manufacturing expense (33,170) (11,863)
Income taxes (75) 6,442
Accounts payable and other accrued expenses (9,242) (91,633)
Amounts due members 8,649 (2,313)
Deferred tax asset and liability 1,118 0
Other assets and liabilities, net 535 740
----------- -----------
Net cash used in operating activities (29,077) (50,842)
----------- -----------
Cash flows from Investing Activities:
Proceeds from Termination Agreement with Birds Eye Foods, Inc. 8,000 0
Purchase of property, plant and equipment (2,187) (10,537)
Proceeds from disposals of property, plant, and equipment 0 52
Proceeds from investment in CoBank 1,115 3,998
Advances to joint venture (1,512) 0
Cash at the date of deconsolidation with Birds Eye Foods, Inc. (5,818) 0
----------- -----------
Net cash used in investing activities (402) (6,487)
----------- -----------
Cash Flows from Financing Activities:
Net proceeds from issuance of short-term debt 22,000 75,400
Net proceeds from Credit Facility with Birds Eye Foods, Inc. 100 0
Payments on long-term debt (292) (9,072)
Payments on capital leases (38) (111)
Cash paid in conjunction with debt amendment 0 (1,694)
Repurchases of common stock, net (497) (806)
Cash dividends paid (6,402) (6,406)
----------- -----------
Net cash provided by financing activities 14,871 57,311
----------- -----------
Net change in cash and cash equivalents (14,608) (18)
Cash and cash equivalents at beginning of period 14,686 7,656
----------- -----------
Cash and cash equivalents at end of period $ 78 $ 7,638
=========== ===========
Supplemental Schedule of Non-Cash Investing Activities
Value of Pro-Fac's 40.72 percent common equity ownership in Agrilink Holdings LLC $ 31,400 $ 0
=========== ===========
The accompanying notes are an integral part of these consolidated financial
statements.
PRO-FAC COOPERATIVE, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTE 1. DESCRIPTION OF BUSINESS AND SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
Description of Business: Pro-Fac Cooperative, Inc. ("Pro-Fac" or the
"Cooperative") is a New York agricultural cooperative corporation which markets
crops grown by its members. Birds Eye Foods, Inc. ("Birds Eye Foods," formerly
Agrilink Foods, Inc.) through August 18, 2002, was a wholly-owned subsidiary of
Pro-Fac. Prior to August 19, 2002, the results of the Cooperative were
consolidated with Birds Eye Foods and intercompany transactions and balances
were eliminated. Subsequent to August 18, 2002, Pro-Fac no longer consolidates
Birds Eye Foods but accounts for its investment in Agrilink Holdings LLC (as
that entity is described below in this NOTE 1 to the "Notes to Consolidated
Financial Statements") under the equity method of accounting. Full financial
statements as filed by Birds Eye Foods are included as an Exhibit to this Form
10-Q and are hereby incorporated into this filing. See the detailed description
of the August 19, 2002 transaction below.
The operating activities of Pro-Fac for periods prior to August 19, 2002 reflect
products sold through Birds Eye Foods' four primary product lines consisting of:
vegetables, fruits, snacks, and canned meals. The majority of each of the
product lines' net sales was within the United States. In addition, all of Birds
Eye Foods' operating facilities, excluding one in Mexico, were within the United
States.
Prior to August 19, 2002, the boards of directors of Birds Eye Foods and Pro-Fac
conducted joint meetings, coordinated their activities, and acted on a
consolidated basis.
The Transaction: On August 19, 2002 (the "Closing Date"), pursuant to the terms
of the Unit Purchase Agreement dated as of June 20, 2002 (the "Unit Purchase
Agreement"), by and among Pro-Fac, Birds Eye Foods, at the time a New York
corporation and a wholly-owned subsidiary of Pro-Fac, and Vestar/Agrilink
Holdings LLC, a Delaware limited liability company ("Vestar/Agrilink Holdings"):
(i) Pro-Fac contributed to the capital of Agrilink Holdings LLC, a Delaware
limited liability company ("Holdings LLC"), all of the shares of Birds Eye
Foods' common stock owned by Pro-Fac, constituting 100 percent of the
issued and outstanding shares of Birds Eye Foods' capital stock, in
consideration for Class B common units of Holdings LLC, representing a
40.72 percent common equity ownership; and
(ii) Vestar/Agrilink Holdings and certain co-investors (collectively, "Vestar")
contributed cash in the aggregate amount of $175.0 million to the capital
of Holdings LLC, in consideration for preferred units, Class A common
units, and warrants which were immediately exercised to acquire additional
Class A common units. After exercising the warrants, Vestar owns 56.24
percent of the common equity of Holdings LLC. The co-investors are either
under common control with, or have delivered an unconditional voting proxy
to, Vestar.
The transactions contemplated in and consummated pursuant to the Unit Purchase
Agreement, are referred to herein collectively as the "Transaction."
Immediately following Pro-Fac's contribution of its shares of Birds Eye Foods'
common stock to Holdings LLC, Holdings LLC contributed those shares to Birds Eye
Holdings Inc., (formerly Agrilink Holdings Inc.) a Delaware corporation and a
direct, wholly-owned subsidiary of Holdings LLC, and Birds Eye Foods became an
indirect, wholly-owned subsidiary of Holdings LLC. As a result of the
Transaction, Pro-Fac owns 40.72 percent and Vestar owns 56.24 percent of the
common equity securities of Holdings LLC. The Class A common units entitle the
owner thereof - Vestar - to two votes for each Class A common unit held. All
other Holdings LLC common units entitle the holder(s) thereof to one vote for
each common unit held. Accordingly, Vestar has a voting majority of all common
units.
As part of the Transaction, Stephen R. Wright, the general manager and secretary
of Pro-Fac, together with executive officers of Birds Eye Foods, and certain
other members of Birds Eye Foods' management, entered into subscription
agreements with Holdings LLC to acquire (using a combination of cash and
promissory notes issued to Holdings LLC) an aggregate of approximately $1.3
million of Class C common units and Class D common units of Holdings LLC,
representing approximately 3.04 percent of the common equity ownership.
See NOTE 2 to the "Notes to Consolidated Financial Statements" for additional
disclosures regarding agreements with Birds Eye Foods and discussion of the
related gain.
As a result of the Transaction, described in NOTE 1 of the "Notes to
Consolidated Financial Statements," the results of operations for the third
quarter and first nine months of fiscal 2003 are not comparable with those of
such period of fiscal 2002.
Basis of Presentation: The accompanying unaudited consolidated financial
statements have been prepared in accordance with accounting principles generally
accepted in the United States of America ("GAAP") for interim financial
information and with the instructions to Form 10-Q and Article 10 of Regulation
S-X. Accordingly, they do not include all of the information required by GAAP
for complete financial statement presentation. In the opinion of management, all
adjustments (consisting only of normal recurring adjustments) necessary for a
fair presentation of the results of operations have been included. Operating
results for the period ended March 29, 2003 are not necessarily indicative of
the results to be expected for other interim periods or the full year. These
financial statements should be read in conjunction with the financial statements
and accompanying notes contained in the Pro-Fac Cooperative, Inc. Form 10-K for
the fiscal year ended June 29, 2002.
Commercial Market Value Adjustment: At its January 2003 board meeting, in an
action aimed at improving the Cooperative's short-term liquidity, the Board of
Directors of Pro-Fac determined to deduct 1 percent of the commercial market
value ("CMV") otherwise payable to Pro-Fac's member-growers for crops supplied
by Pro-Fac member-growers through the Cooperative for the 2002 and 2003 growing
seasons. The 1 percent CMV deduction will be withheld from the July 2003 and
July 2004 CMV payments. The 1 percent deduction for the 2002 growing season
resulted in approximately $0.6 million of income for the year-to-date period
ended March 29, 2003 which was recorded during the third quarter of fiscal 2003.
The Board of Directors of Pro-Fac resolved to review this recommendation
annually.
New Accounting Pronouncements: In August 2001, the Financial Accounting
Standards Board ("FASB") issued Statement of Financial Accounting Standards
("SFAS") No. 144 "Accounting for the Impairment or Disposal of Long-Lived
Assets." Effective June 30, 2002, the Cooperative adopted SFAS No. 144 which
addresses financial accounting and reporting for the impairment or disposal of
long-lived assets. The statement requires an impairment loss be recognized if
the carrying amount of a long-lived asset is not recoverable from its
undiscounted cash flow and that the impairment loss be recognized as the
difference between the carrying amount and fair value of the asset. Under SFAS
No. 144, assets held for sale that are a component of an entity will be included
in discontinued operations if the operations and cash flows will be or have been
eliminated from the ongoing operations of the entity, and the entity will not
have any significant continuing involvement in the future operations. The
adoption of SFAS No. 144 did not have a significant effect on the operations of
the Cooperative.
In June 2002, the FASB issued SFAS No. 146, "Accounting for Costs Associated
with Exit or Disposal Activities," which addresses financial accounting and
reporting for costs associated with exit or disposal activities and supersedes
Emerging Issues Task Force ("EITF) Issue 94-3, "Liability Recognition for
Certain Employee Termination Benefits and Other Costs to Exit an Activity
(including Certain Costs Incurred in a Restructuring)". SFAS No. 146 requires
that a liability for a cost associated with an exit or disposal activity be
recognized when the liability is incurred. EITF 94-3 required a liability for
exit costs be recognized at the date of an entity's commitment to an exit plan.
The provisions of SFAS No. 146 must be adopted for exit or disposal activities
that are initiated after December 31, 2002.
In November 2002, the FASB issued Interpretation No. 45, "Guarantor's Accounting
and Disclosure Requirements for Guarantees, Including Indirect Guarantees of
Others" ("FIN 45"). FIN 45 requires that a liability be recorded on the
guarantor's balance sheet upon issuance of a guarantee. In addition, FIN 45
requires disclosures about the guarantees that an entity has issued. The
Cooperative will apply the recognition provisions of FIN 45 prospectively to
guarantees issued after December 31, 2002. The disclosure provisions of FIN 45
have been adopted in this report. The Cooperative does not expect the
prospective provisions of FIN 45 to have a material effect on its consolidated
financial statements.
In January 2003, the FASB issued Interpretation No. 46, "Consolidation of
Variable Interest Entities, an Interpretation of ARB No. 51" ("FIN 46"). FIN 46
requires certain variable interest entities to be consolidated by the primary
beneficiary of the entity if the equity investors in the entity do not have the
characteristics of a controlling financial interest or do not have sufficient
equity at risk for the entity to finance its activities without additional
subordinated financial support from other parties. FIN 46 is effective for all
new variable interest entities created or acquired after January 31, 2003. For
variable interest entities created or acquired prior to February 1, 2003, the
provisions of FIN 46 must be applied for the first interim or annual period
beginning after June 15, 2003. The Cooperative does not expect FIN 46 to have a
material effect on its consolidated financial statements.
NOTE 2. AGREEMENTS WITH BIRDS EYE FOODS
In connection with the Transaction, Birds Eye Foods and Pro-Fac entered into
several agreements effective as of the Closing Date, including the following:
Termination Agreement: Pro-Fac and Birds Eye Foods entered into a letter
agreement dated as of the Closing Date (the "Termination Agreement"), pursuant
to which, among other things, the marketing and facilitation agreement between
Pro-Fac and Birds Eye Foods (the "Marketing and Facilitation Agreement") which,
until the Closing Date, governed the crop supply and purchase relationship
between Birds Eye Foods and Pro-Fac, has been terminated. In consideration of
such termination, Birds Eye Foods will pay Pro-Fac a termination fee of $10.0
million per year for five years, provided that certain ongoing conditions are
met, including maintaining grower membership levels sufficient to generate
certain minimum crop supply. The $10.0 million payment will be paid in quarterly
installments to the Cooperative as follows: $4.0 million on each July 1, and
$2.0 million each on October 1, January 1, and April 1. The Termination
Agreement provided that the first payment in the amount of $4.0 million was to
be paid on the Closing Date and the next payment made by October 1, 2002 and
quarterly thereafter as outlined in the agreement. The Cooperative therefore
received $4.0 million from Birds Eye Foods on August 19, 2002, $2.0 million on
October 1, 2002, $2.0 million on January 1, 2003, and $2.0 million on April 1,
2003.
Payments under the Termination Agreement are considered additional consideration
related to the Transaction. Accordingly, 40.72 percent of the payments received
under the Termination Agreement are recorded as an adjustment to Pro-Fac's
investment in Holdings LLC. The remaining 59.28 percent of the annual payment
will be recognized as additional gain from the transaction with Birds Eye Foods
in the period received. Accordingly, through the first nine months of fiscal
2003, Pro-Fac recognized approximately $4.8 million as additional gain from the
receipt of the termination payments.
Transitional Services Agreement: Pro-Fac and Birds Eye Foods entered into a
transitional services agreement (the "Transitional Services Agreement") dated as
of the Closing Date, pursuant to which Birds Eye Foods will provide Pro-Fac
certain administrative and other services for a period of 24 months from the
Closing Date. Birds Eye Foods will generally provide such services at no charge
to Pro-Fac, other than reimbursement of the incremental and out-of-pocket costs
associated with performing those services for Pro-Fac. Pursuant to the
Transitional Services Agreement, the general manager of Pro-Fac may also be an
employee of Birds Eye Foods, in which case he will report to the Chief Executive
Officer of Birds Eye Foods with respect to his duties for Birds Eye Foods, and
to the Pro-Fac board of directors with respect to duties performed by him for
Pro-Fac. All other individuals performing services under the Transitional
Services Agreement report to the Chief Executive Officer (or other
representatives) of Birds Eye Foods. Stephen R. Wright, the General Manager and
Secretary of Pro-Fac, is also an employee of Birds Eye Foods. As an employee of
Birds Eye Foods, Mr. Wright's salary is paid by Birds Eye Foods.
Pro-Fac has recorded the estimated value of these services, $1.0 million, as
services receivable and proceeds from the Transaction, prior to elimination of
40.72 percent of the amount of Pro-Fac's investment in Holdings LLC. This
estimated value of the services to be received by the Cooperative is being
amortized to expense over the term of the Transitional Services Agreement.
Through the first nine months of fiscal 2003, Pro-Fac recognized approximately
$0.6 million as additional gain from the Transitional Services Agreement.
Gain from transaction with Birds Eye Foods, Inc. and related agreements: Prior
to the Transaction, certain amounts owed by Pro-Fac to Birds Eye Foods were
forgiven. The amounts forgiven were approximately $36.5 million and represented
both borrowings for the working capital needs of Pro-Fac and a $9.4 million
demand payable. After adjusting for the amounts forgiven, Pro-Fac's investment
in Birds Eye Foods prior to the Transaction was approximately $24.9 million. The
value of the Cooperative's 40.72 percent common equity ownership in Holdings LLC
on August 19, 2002 is valued at $31.4 million. The Cooperative recognized a gain
of $3.8 million from this exchange.
As a result of the agreements described above, based on the 40.72 percent common
equity ownership, the Cooperative recognized a total gain, through the first
nine months of fiscal 2003, of approximately $9.2 million.
Amended and Restated Marketing and Facilitation Agreement: Pro-Fac and Birds Eye
Foods entered into an amended and restated marketing and facilitation agreement
dated as of the Closing Date (the "Amended and Restated Marketing and
Facilitation Agreement"). The Amended and Restated Marketing and Facilitation
Agreement supersedes and replaces the Marketing and Facilitation Agreement and
provides that, among other things, Pro-Fac will be Birds Eye Foods' preferred
supplier of crops. Birds Eye Foods will also continue to pay Pro-Fac the
commercial market value ("CMV") for all crops supplied by Pro-Fac, in
installments corresponding to the dates of payment by Pro-Fac to its members for
crops delivered. CMV is defined as the weighted average price paid by other
commercial processors for similar crops sold under preseason contracts and in
the open market in the same or competing market area. Although CMV is intended
to be no more than the fair market value of the crops purchased by Birds Eye
Foods, it may be more or less than the price Birds Eye Foods would pay in the
open market in the absence of the relationship. The processes for determining
CMV under the Amended and Restated Marketing and Facilitation Agreement are
substantially the same as the processes used under the Marketing and
Facilitation Agreement. Birds Eye Foods will make payments to Pro-Fac of an
estimated CMV for a particular crop year, subject to adjustments to reflect the
actual CMV following the end of such year. Commodity committees of Pro-Fac will
meet with Birds Eye Foods management to establish CMV guidelines, review
calculations, and report to a joint CMV committee of Pro-Fac and Birds Eye
Foods. Amounts received by Pro-Fac from Birds Eye Foods for the CMV for all
crops delivered for the nine months ended March 29, 2003 and March 30, 2002 were
$56.1 million and $70.1 million, respectively. As of March 29, 2003, the
Cooperative owed $10.8 million to its members for crops delivered. A comparable
amount was owed to the Cooperative by Birds Eye Foods. Under the provision of
EITF 99-19, "Reporting Revenue Gross as a Principal Versus Net as an Agent," the
Cooperative records activity between Birds Eye Foods, itself, and its members on
a net basis.
Unlike the Marketing and Facilitation Agreement, the Amended and Restated
Marketing and Facilitation Agreement does not permit Birds Eye Foods to offset
its losses from products supplied by Pro-Fac or require it to share with Pro-Fac
its profits and it does not require Pro-Fac to reinvest in Birds Eye Foods any
part of Pro-Fac's patronage income. Historically, under the Marketing and
Facilitation Agreement, in any year in which Birds Eye Foods had earnings on
products which were processed from crops supplied by Pro-Fac ("Pro-Fac
products"), Birds Eye Foods paid to Pro-Fac, as additional patronage income, 90
percent of such earnings, but in no case more than 50 percent of all pretax
earnings of Birds Eye Foods (before dividing with Pro-Fac). In years in which
Birds Eye Foods had losses on Pro-Fac products, Birds Eye Foods reduced the CMV
it would otherwise pay to Pro-Fac by 90 percent of such losses, but in no case
by more than 50 percent of all pretax losses of Birds Eye Foods (before dividing
with Pro-Fac). Additional patronage income was paid to Pro-Fac for services
provided to Birds Eye Foods, including the provision of a long term, stable crop
supply, favorable payment terms for crops, and the sharing of risks of losses of
certain operations of the business. Under the Marketing and Facilitation
Agreement, earnings and losses were determined at the end of the fiscal year,
but were accrued on an estimated basis during the year. Pro-Fac's share of
earnings was $12.9 million for the nine months ended March 30, 2002. Pro-Fac was
also required to reinvest at least 70 percent of the additional patronage income
in Birds Eye Foods. Subsequent to Pro-Fac's acquisition of Birds Eye Foods in
1994 and prior to August 19, 2002, Pro-Fac had invested an additional $50.8
million in Birds Eye Foods.
The Amended and Restated Marketing and Facilitation Agreement also provides that
Birds Eye Foods will continue to provide to Pro-Fac services relating to
planning, consulting, sourcing and harvesting crops from Pro-Fac members in a
manner consistent with past practices. In addition, for a period of five years
from the Closing Date, Birds Eye Foods may provide Pro-Fac with services related
to the expansion of the market for the agricultural products of Pro-Fac members
(at no cost to Pro-Fac other than reimbursement of Birds Eye Foods' incremental
and out-of-pocket expenses related to providing such services as agreed to by
Pro-Fac and Birds Eye Foods).
Under the Amended and Restated Marketing and Facilitation Agreement, Birds Eye
Foods determines the amount of crops which Birds Eye Foods will acquire from
Pro-Fac for each crop year. If the amount to be purchased by Birds Eye Foods
during a particular crop year does not meet (i) a defined crop amount and (ii) a
defined target percentage of Birds Eye Foods' needs for each particular crop,
then certain shortfall payments will be made by Birds Eye Foods to Pro-Fac. The
defined crop amounts and targeted percentages are set based upon the needs of
Birds Eye Foods in the 2001 crop year (fiscal 2002). The shortfall payment
provisions of the agreement include a maximum shortfall payment, determined for
each crop, that can be paid over the term of the Amended and Restated Marketing
and Facilitation Agreement. The aggregate shortfall payment amounts for all
crops covered under the agreement cannot exceed $20.0 million over the term of
the agreement.
The Amended and Restated Marketing and Facilitation Agreement may be terminated
by Birds Eye Foods in connection with certain change in control transactions
affecting Birds Eye Foods or Holdings, Inc.; provided, however, that in the
event that any such change in control occurs during the first three years after
the Closing Date, Birds Eye Foods must pay to Pro-Fac a termination fee of $20.0
million (less the total amount of any shortfall payments previously paid to
Pro-Fac under the Amended and Restated Marketing and Facilitation Agreement).
Also, if, during the first three years after the Closing Date, Birds Eye Foods
sells one or more portions of its business, and if the purchaser does not
continue to purchase the crops previously purchased by Birds Eye Foods with
respect to the transferred business, then such failure will be taken into
consideration when determining if Birds Eye Foods is required to make any
shortfall payments to Pro-Fac. After such three-year period, Birds Eye Foods may
sell portions of its business and the volumes of crop purchases previously made
by Birds Eye Foods with respect to such transferred business will be disregarded
for purposes of determining shortfall payments.
NOTE 3. INVENTORIES
Prior to August 19, 2002, the results of the Cooperative were consolidated with
its then wholly-owned subsidiary, Birds Eye Foods.
The major classes of inventories of Birds Eye Foods at June 29, 2002 were as
follows:
(Dollars in Thousands)
June 29,
2002
----------
Finished goods $ 266,469
Raw materials and supplies 27,846
----------
Total inventories $ 294,315
==========
NOTE 4. ACCOUNTING FOR GOODWILL AND INTANGIBLE ASSETS
In June 2001, the FASB issued SFAS No. 142, "Goodwill and Other Intangible
Assets." SFAS No. 142 addressed financial accounting and reporting for acquired
goodwill and other intangible assets, and is effective for fiscal years
beginning after December 15, 2001, with early adoption permitted for entities
with fiscal years beginning after March 15, 2001. Effective July 1, 2001, Birds
Eye Foods, a then wholly-owned subsidiary of Pro-Fac, adopted SFAS No. 142,
which requires that goodwill not be amortized, but instead be tested at least
annually for impairment and expensed against earnings when its implied fair
value is less than its carrying amount.
During the quarter ended June 29, 2002, Birds Eye Foods identified certain
indicators of possible impairment of its goodwill. The main indicators of
impairment included the recent deterioration of general economic conditions,
lower valuations resulting from current market declines, modest category
declines in segments in which Birds Eye Foods operates, and the completion of
the terms of the Transaction with Pro-Fac and Vestar/Birds Eye Holdings. These
factors indicated an erosion in the market value of Birds Eye Foods since the
adoption of SFAS No. 142.
As outlined under SFAS No. 142, the impairment test adhered to was a two-step
process. The first step was a review as to whether there was an indication that
goodwill was impaired. To do this, Birds Eye Foods identified its reporting
units and determined the carrying value of each by assigning Birds Eye Foods'
assets and liabilities, including existing goodwill. Birds Eye Foods then
determined the fair value of each reporting unit by using a combination of
comparable food industry trading and transaction multiples, including the
implied multiple in the Transaction with Pro-Fac and Vestar/Birds Eye Holdings.
In the second step, Birds Eye Foods compared the implied fair value of the
goodwill to its carrying value to measure the amount of the impairment. In the
fourth quarter of fiscal 2002, Birds Eye Foods recorded a one-time, pretax,
non-cash charge of approximately $179.0 million to reduce the carrying value of
its goodwill. The tax benefit associated with this non-cash charge was
approximately $41.5 million.
As outlined in SFAS No. 142, certain intangibles with a finite life, however,
are required to continue to be amortized. The following schedule sets forth the
major classes of intangible assets of Birds Eye Foods at June 29, 2002:
(Dollars in Thousands)
June 29,
2002
----------
Amortized intangibles:
Covenants not to compete $ 2,478
Other 12,000
Less: accumulated amortization (3,173)
----------
Other intangible assets, net $ 11,305
==========
The aggregate amortization expense associated with intangible assets was
approximately $0.1 million for the period June 30, 2002 through August 18, 2002,
and $0.3 million and $0.9 million for the three months and nine months ended
March 30, 2002, respectively.
NOTE 5. DEBT
Credit Agreement: Birds Eye Foods and Pro-Fac have entered into a Credit
Agreement, dated August 19, 2002 (the "Credit Agreement"), pursuant to which
Birds Eye Foods has agreed to make available to Pro-Fac loans in an aggregate
principal amount of up to $5.0 million (the "Credit Facility "). Pro-Fac is
permitted to draw up to $1.0 million per year under the Credit Facility, unless
Birds Eye Foods is prohibited from making such advances under the terms of
certain third party indebtedness of Birds Eye Foods. Amounts not drawn in a year
will not be carried forward. The amount of the Credit Facility will be reduced,
on a dollar-for-dollar basis, to the extent of certain distributions made by
Holdings LLC to Pro-Fac in respect of its ownership in Holdings LLC. Pro-Fac has
pledged all of its Class B common units in Holdings LLC as security for advances
under the Credit Facility. Advances outstanding under the Credit Agreement bear
interest at 10 percent per annum. As of March 29, 2003, there was an outstanding
loan amount of $0.1 million, drawn on March 12, 2003.
Line of Credit : On March 26, 2003, the Cooperative secured a $0.5 million Line
of Credit from Manufacturers And Traders Trust Company (the "M&T Line of
Credit"). As of March 29, 2003, there were no borrowings outstanding under the
Line of Credit. Principal amounts borrowed bear interest at .75 percent per
annum above the prime rate in effect on the day proceeds are disbursed, as
announced by the Bank, as its prime rate of interest. Interest is payable
monthly. Amounts extended under the M&T Line of Credit are required to be paid
down to zero during each year by July 15, and maintained for a minimum of 90
consecutive days. The first paydown will commence July 15, 2004. The
Cooperative's obligations under the M&T Line of Credit are secured by a security
interest granted to Manufacturers and Traders Trust Company in substantially all
of the assets of the Cooperative, excluding its Class B common units owned in
Agrilink Holdings LLC. However, collateral does include any distributions from
the common units and cash payments made by Birds Eye Foods to the Cooperative.
Summary of Long-Term Debt at June 29, 2002: Prior to August 19, 2002, the
results of the Cooperative were consolidated with its then wholly-owned
subsidiary, Birds Eye Foods.
The summary of long-term debt of Birds Eye Foods at June 29, 2002 was as
follows:
(Dollars in Thousands)
June 29,
2002
-----------
Term Loan Facility $ 400,800
Senior Subordinated Notes 200,015
Subordinated Promissory Notes (net of discount) 32,696
Other 4,462
-----------
Total debt 637,973
Less current portion (14,916)
-----------
Total long-term debt $ 623,057
===========
In conjunction with the Transaction, on August 19, 2002, proceeds received from
Vestar, along with the net proceeds from Birds Eye Foods' new senior secured
credit facility, were utilized to retire all existing indebtedness under the
Birds Eye Foods Harris Credit Facility, including the Term Loan Facility.
Pro-Fac guarantees certain obligations of Birds Eye Foods. Following is a
schedule of obligations at March 29, 2003 that are guaranteed by the
Cooperative.
(Dollars in Millions)
Amounts
Contractual Obligations Guaranteed Committed Expiration
- ---------------------------------- --------- ---------------
Senior Subordinated Notes - 11-7/8 Percent $ 200.0 November 2008
Subordinated Promissory Note $ 37.6 November 2008
NOTE 6. SPECIAL MEMBERSHIP INTERESTS
In conjunction with the Transaction, the Pro-Fac board of directors determined
that it was in the best interests of Pro-Fac and its members to make certain
changes to the Cooperative's certificate of incorporation and bylaws. Included
in these changes was the creation of Pro-Fac special membership interests. The
aggregate amount of special membership interest allocated is equal to Pro-Fac's
earned surplus as of June 29, 2002, calculated in a manner consistent with the
past custom and practice of Pro-Fac and ignoring only effects of the non-cash
impairment charge recorded in the fourth quarter of fiscal 2002.
The special membership interests were allocated to the then current and former
members of Pro-Fac that made patronage deliveries to or on behalf of Pro-Fac in
the six fiscal years ended June 29, 2002, in proportion to the patronage
deliveries made by those members in each case during that six fiscal year
period. The purpose of the allocation of the special membership interests was to
preserve for the then current and former members at the Closing Date, the book
appreciation in value of their former investment in Birds Eye Foods.
NOTE 7. OPERATING SEGMENTS
Prior to August 19, 2002, the results of the Cooperative were consolidated with
its then wholly-owned subsidiary, Birds Eye Foods.
Subsequent to August 19, 2002, the Cooperative operates in one segment, the
marketing of crops grown by its members.
Birds Eye Foods accounted for segments using SFAS No. 131, "Disclosures about
Segments of an Enterprise" (SFAS 131). SFAS No. 131 establishes requirements for
reporting information about operating segments and established standards for
related disclosures about products and services, and geographic areas. As
management of Birds Eye Foods made the majority of its operating decisions based
upon Birds Eye Foods' significant product lines, Birds Eye Foods elected to
utilize significant product lines in determining its operating segments. Birds
Eye Foods' four primary operating segments were as follows: vegetables, fruits,
snacks, and canned meals.
The vegetable product line consisted of canned and frozen vegetables, chili
beans, and various other products. Branded products within the vegetable
category included Birds Eye, Birds Eye Voila!, Birds Eye Simply Grillin', Birds
Eye Hearty Spoonfuls, Freshlike, Veg-All, McKenzies, and Brooks Chili Beans. The
fruit product line consisted of canned and frozen fruits including fruit
fillings and toppings. Branded products within the fruit category included
Comstock and Wilderness. The snack product line consisted of potato chips,
popcorn and other corn-based snack items. Branded products within the snacks
category included Tim's Cascade Chips, Snyder of Berlin, Husman, La Restaurante,
Erin's, Beehive, Pops-Rite, Super Pop, and Flavor Destinations. The canned meal
product line included canned meat products such as chilies, stew, and soups, and
various other ready-to-eat prepared meals. Branded products within the canned
meals category included Nalley. Other product lines primarily represent salad
dressings. Branded products within the "other category" included Bernstein's and
Nalley.
The following table illustrates the operating segment information of the
Cooperative for the periods indicated:
(Dollars in Millions)
Nine Months Ended
March 29,
2003
Three Months Ended Three Months Ended (Covering the Nine Months Ended
March 29, March 30, Period June 30, 2002 - March 30,
2003 2002 August 18, 2002) 2002
----------------- ------------------ ---------------------- -------------------
Net Sales:
Vegetables $ 0.0 $ 180.8 $ 69.5 $ 568.0
Fruits 0.0 21.2 13.1 90.8
Snacks 0.0 20.9 11.8 65.1
Canned Meals 0.0 12.7 4.4 37.0
Other 0.0 9.3 4.9 27.8
--------- -------- ---------- ---------
Total $ 0.0 $ 244.9 $ 103.7 $ 788.7
========= ======== ========== =========
(Dollars in Millions)
Nine Months Ended
March 29,
2003
Three Months Ended Three Months Ended (Covering the Nine Months Ended
March 29, March 30, Period June 30, 2002 - March 30,
2003 2002 August 18, 2002) 2002
------------------ ------------------ ---------------------- ------------------
Operating income:
Vegetables $ 0.0 $ 16.9 $ 3.8 $ 48.6
Fruits 0.0 2.5 2.1 15.4
Snacks 0.0 1.1 1.3 4.3
Canned Meals 0.0 1.8 0.3 6.2
Other 0.0 1.2 0.4 2.9
--------- --------- ------- -------
Continuing segments 0.0 23.5 7.9 77.4
Equity (loss)/income from Agrilink
Holdings LLC (for the period December 29,
2002 to March 29, 2003 and the period
August 19, 2002 to March 29, 2003,
respectively) (0.1) 0.0 3.6 0.0
Gain from transaction with Birds Eye
Foods, Inc. and related agreements 1.2 0.0 9.2 0.0
Commercial market value adjustment 0.5 0.0 0.5 0.0
Selling, administrative, and general
expense (for the period December 29,
2002 to March 29, 2003 and the
period August 19, 2002 to
March 29, 2003, respectively) (0.3) 0.0 (1.2) 0.0
Legal matters and settlement expenses (0.4) 0.0 (2.0) 0.0
Gain from pension curtailment 0.0 0.0 0.0 2.5
Restructuring 0.0 0.0 0.0 (2.6)
--------- --------- ------- -------
Total consolidated operating income 0.9 23.5 18.0 77.3
Interest expense, net 0.0 (15.9) (7.7) (51.6)
--------- --------- ------- -------
Income before taxes $ 0.9 $ 7.6 $ 10.3 $ 25.7
========= ========= ======= =======
NOTE 8. OTHER MATTERS
Prior to August 19, 2002, the results of the Cooperative were consolidated with
its then wholly-owned subsidiary, Birds Eye Foods.
Gain from Pension Curtailment: During September 2001, Birds Eye Foods made the
decision to freeze benefits provided under its Master Salaried Retirement Plan.
Under the provisions of SFAS No. 88, "Accounting for Settlements and
Curtailments of Defined Benefit Pension Plans and for Termination Benefits,"
these benefit changes resulted in the recognition of a $2.5 million net
curtailment gain.
Restructuring: On June 23, 2000, Birds Eye Foods sold its pickle business to
Dean Pickle and Specialty Product Company. As part of the transaction, Birds Eye
Foods agreed to contract pack Nalley and Farman's pickle products for a period
of two years, ending June 2002. In anticipation of the completion of this
co-pack contract, Birds Eye Foods initiated restructuring activities for
approximately 140 employees in its facility located in Tacoma, Washington during
the first quarter of fiscal 2002. The total restructuring charge amounted to
$1.1 million and was primarily comprised of employee termination benefits. This
amount was liquidated as of December 28, 2002.
In addition, on October 12, 2001, Birds Eye Foods announced a further reduction
of approximately 7 percent of its nationwide workforce, for a total of
approximately 300 positions. The reductions were part of an ongoing focus on
low-cost operations and included both salaried and hourly positions. In
conjunction with the reductions, Birds Eye Foods recorded a charge against
earnings of approximately $1.6 million in the second quarter of fiscal 2002,
primarily consisting of employee termination benefits. This amount was
liquidated as of December 28, 2002.
Legal Matters: On September 25, 2001, in the circuit court of Multnomah County,
Oregon, Blue Line Farms commenced a class action suit ("Blue Line Farms
litigation") against the Cooperative, Birds Eye Foods, Mr. Mike Shelby, and
"Does" 1-50, representing directors, officers, and agents of the corporate
defendants, alleging various claims related to the operation of PF Acquisition
II, Inc., a former subsidiary of Pro-Fac that conducted business under the name
AgriFrozen Foods ("AgriFrozen"). The complaint was subsequently amended to
eliminate "Does" 1- 50 as parties. The relief sought included a demand for
damages of $50.0 million. On December 23, 2002, Pro-Fac, Birds Eye Foods, and
the other defendants reached an agreement in principle as to the terms of a
settlement of the Blue Line Farms litigation, as well as of related claims under
Oregon's grower lien statute pending in the United States Bankruptcy Court for
the District of Oregon, known as the Seifer Trust litigation. The Seifer Trust
litigation also named Pro-Fac and Birds Eye among its named defendants. The
parties in the Blue Line Farms litigation negotiated a settlement agreement
which has been approved by the Multnomah County Circuit Court. Other conditions
of the settlement were satisfied on or before April 14, 2003. In conjunction
with the settlement of the Blue Line Farms litigation and Seifer Trust
litigation, Pro-Fac has recorded a liability for settlement for approximately
$1.3 million during the second quarter of fiscal 2003.
The Unit Purchase Agreement for the Transaction contains specific provisions
concerning the Blue Line Farms matter and other AgriFrozen related litigation of
Birds Eye Foods. These provisions address the sharing of defense costs, as well
as judgment and settlement costs, between Birds Eye Foods and Pro-Fac. On an
annual basis, Birds Eye Foods has agreed to bear responsibility for the first
$300,000 of defense costs. In addition, Birds Eye Foods agreed to bear
responsibility for one-half of defense costs in excess of $300,000 and for
one-half of judgment and settlement costs, subject to an aggregate cap of $3.0
million after which Pro-Fac is responsible for all costs. These provisions
regarding a sharing of costs apply specifically to the Blue Line Farms
litigation and the Seifer Trust litigation. These provisions do not apply to
other AgriFrozen related litigation, the responsibility for which is entirely
with Pro-Fac.
GE Capital Matter: On October 17, 2001, in the supreme court of New York County,
New York, General Electric Capital Corporation commenced an action against
Pro-Fac Cooperative, Inc. and Birds Eye Foods, Inc. The complaint relates to an
equipment lease entered into between AgriFrozen and the plaintiff's
predecessor-in-interest, and alleges that AgriFrozen, by failing to make
payments under the lease, breached its contract with the plaintiff. The
complaint further alleges that Pro-Fac and Birds Eye Foods are liable to the
plaintiff for that breach because (i) there was an overlap of ownership of the
corporations, (ii) AgriFrozen was inadequately capitalized, and (iii) Pro-Fac
and Birds Eye Foods were guarantors of AgriFrozen's payment obligations under
the Lease.
The relief sought includes $850,000 in compensatory damages as well as punitive
damages based on Pro-Fac's and Birds Eye Foods' alleged fraudulent
misrepresentations during the lease negotiations. Management believes this
matter is without merit and intends to defend vigorously its position with
respect to this matter.
Kenyon Zero Storage Matter: On August 27, 2001, in the U.S. District Court for
the Eastern District of Washington, Kenyon Zero Storage, Inc. commenced an
action against Pro-Fac and certain other parties. The complaint relates to a
20-year lease of a vegetable plant located in Grandview, Washington, between
AgriFrozen and the plaintiff, and alleges breach of the lease. Pro-Fac has been
sued on a theory of corporate disregard.
The relief sought includes approximately $11.3 million in compensatory damages,
calculated as the base rental of approximately $.8 million per year for the 15
years remaining on the lease. Additionally, plaintiff has asserted claims
against American Casualty Company of Reading, Pennsylvania ("American
Casualty"), the issuer of a lease performance bond, in the amount of
approximately $.8 million. If American Casualty is held liable under the
performance bond, it will have a direct right of reimbursement from Pro-Fac and
Birds Eye Foods.
Pro-Fac has sole responsibility for costs (including defense, settlement, and
judgment costs) associated with the GE Capital Matter and the Kenyon Zero
Storage Matter both described above.
In addition, the Cooperative is party to various other legal proceedings from
time to time in the normal course of its business. In the opinion of management,
any liability that might be incurred upon the resolution of these proceedings
will not, in the aggregate, have a material adverse effect on the Cooperative's
business, financial condition, and results of operations. Further, no such
proceedings are known to be contemplated by any governmental authorities. The
Cooperative maintains general liability insurance coverage in amounts deemed to
be adequate by the board of directors.
Commitments: Pro-Fac entered into an agreement to provide a guarantee in fiscal
1999 on behalf of Birds Eye Foods' issuance of 11-7/8 percent Senior
Subordinated Notes for $200.0 million aggregate principal amount due November 1,
2008. Interest on the Notes accrues at the rate of 11-7/8 percent per annum and
is payable semiannually in arrears on May 1 and November 1. Pro-Fac issued a
guarantee of the loan in an original amount of approximately $200.0 million. The
guarantee expires in 2008 and requires payment upon the occurrence of Birds Eye
Foods' failure to satisfy the semiannual interest payments or inability to
satisfy the principal payment at its due date. In the event of such shortfall,
Pro-Fac would be required to pay any interest payments due as well as the loan
balance due. As of March 29, 2003, the outstanding loan amount was $200.0
million.
Pro-Fac entered into an agreement to provide a guarantee in fiscal 1999 on
behalf of Birds Eye Foods' issuance of a Subordinated Promissory Note for $30.0
million, due November 22, 2008, in partial consideration for the acquisition of
Dean Foods Vegetable Company. Interest on the Subordinated Promissory Note is
accrued quarterly in arrears commencing December 31, 1998, at a rate per annum
of 5 percent until November 22, 2003, and at a rate of 10 percent thereafter.
Interest accruing through November 22, 2003 is required to be paid in kind
through the issuance by Birds Eye Foods of additional subordinated promissory
notes identical to the Subordinated Promissory Note. Birds Eye Foods satisfied
this requirement through the issuance of additional promissory notes. Interest
accruing after November 22, 2003 is payable in cash. Pro-Fac issued a guarantee
of the loan in an original amount of approximately $30.0 million plus interest.
The guarantee expires in 2008 and requires payment upon the occurrence of Birds
Eye Foods' failure to satisfy the semiannual interest payments or inability to
satisfy the principal payment at its due date. In the event of such shortfall,
Pro-Fac would be required to pay any interest payments due as well as the loan
balance due. As of March 29, 2003, the outstanding loan amount subject to the
Cooperative's guarantee included principal of $30.0 million and interest of $7.6
million.
In certain instances when Pro-Fac sells businesses or assets, the Cooperative
may retain certain liabilities for known exposures and provide indemnification
to the buyer with respect to future claims for certain unknown liabilities
existing, or arising from events occurring, prior to the sale date, including
liabilities for taxes, legal matters, environmental exposures, labor
contingencies, product liability, and other obligations. The terms of the
indemnifications vary in duration, generally two years for certain types of
indemnities, to terms for tax indemnifications that are generally aligned to the
applicable statute of limitations for the jurisdiction in which the tax is
imposed, and to terms for certain liabilities (i.e., warranties of title and
environmental liabilities) that typically do not expire. The maximum potential
future payments that the Cooperative could be required to make under these
indemnifications are either contractually limited to a specified amount or
unlimited. The maximum potential future payments that the Cooperative could be
required to make under these indemnifications are not determinable at this time,
as any future payments would be dependent on the type and extent of the related
claims, and all relevant defenses, which are not estimable. Historically, costs
incurred to resolve claims related to these indemnifications have not been
material to the Cooperative's financial position, results of operations or cash
flows.
The Cooperative enters into agreements with indemnification provisions in the
ordinary course of business with its customers, suppliers, service providers and
business partners. In such instances, the Cooperative usually indemnifies, holds
harmless and agrees to reimburse the indemnified party for claims, actions,
liabilities, losses and expenses in connection with any personal injuries or
property damage resulting from any Pro-Fac products sold or services provided.
Additionally, the Cooperative may from time to time agree to indemnify and hold
harmless its providers of services from claims, actions, liabilities, losses and
expenses relating to their services to Pro-Fac, except to the extent finally
determined to have resulted from the fault of the provider of services relating
to such services. The level of conduct constituting fault of the service
provider will vary from agreement to agreement and may include conduct which is
defined in terms of negligence, gross negligence, willful misconduct, omissions
or other culpable behavior. The term of these indemnification provisions are
generally not limited. The maximum potential future payments that the
Cooperative could be required to make under these indemnification provisions are
unlimited. The maximum potential future payments that the Cooperative could be
required to make under these indemnification provisions are not determinable at
this time, as any future payments would be dependent on the type and extent of
the related claims, and all relevant defenses to the claims, which are not
estimable. Historically, costs incurred to resolve claims related to these
indemnification provisions have not been material to the Cooperative's financial
position, results of operations or cash flows.
The Cooperative has by-laws, policies, and agreements under which it indemnifies
its directors and officers from liability for certain events or occurrences
while the directors or officers are, or were, serving at Pro-Fac's request in
such capacities. Pro-Fac indemnifies its officers and directors to the fullest
extent allowed by New York law. The maximum potential amount of future payments
that the Cooperative could be required to make under these indemnification
provisions is unlimited, but would be affected by all relevant defenses to the
claims.
NOTE 9. SUBSEQUENT EVENTS
Dividends: Subsequent to quarter end, the Cooperative declared a cash dividend
of $.43 per share on the Class A Cumulative Preferred Stock. These dividends
approximate $1.9 million and were paid on April 30, 2003.
CAUTIONARY STATEMENT ON FORWARD-LOOKING STATEMENTS
From time to time, Pro-Fac makes oral and written statements that may constitute
"forward-looking statements" as defined in the Private Securities Litigation
Reform Act of 1995 (the "PSLRA") or by the Securities and Exchange Commission
("SEC") in its rules, regulations, and releases. The Cooperative desires to take
advantage of the "safe harbor" provisions in the PSLRA for forward-looking
statements made from time to time, including, but not limited to, the
forward-looking information contained in the Management's Discussion and
Analysis of Financial Condition and Results of Operations and other statements
made in this Form 10-Q and in other filings with the SEC.
The Cooperative cautions readers that any such forward-looking statements made
by or on behalf of the Cooperative are based on management's current
expectations and beliefs but are not guarantees of future performance. Actual
results could differ materially from those expressed or implied in the
forward-looking statements. Among the factors that could impact the Cooperative
include:
|X| the impact of weather on the volume and quality of raw product;
|X| the impact of strong competition in the food industry, including
competitive pricing;
|X| the impact of changes in consumer demand;
|X| the continuation of Birds Eye Foods' success in integrating operations
(including the realization of anticipated synergies in operations and the
timing of any such synergies), success with new product introductions,
effectiveness of marketing and shifts in market demand, and the
availability of acquisition and alliance opportunities;
|X| risks associated with the Cooperative's contractual relationship with Birds
Eye Foods, including the possibility of a reduced demand for crops produced
by Pro-Fac members, the availability and sufficiency of shortfall payments,
and the potential consequences of a termination of that relationship; and
|X| the ability of the Cooperative to operate its business using the resources
made available under the Transitional Services Agreement with Birds Eye
Foods and following the expiration of that agreement.
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
The purpose of this discussion is to outline the reasons for significant changes
in the Unaudited Consolidated Statement of Operations, Net Proceeds and
Comprehensive Income in the third quarter and first nine months of fiscal 2003
versus such periods in fiscal 2002.
Prior to August 18, 2002, Birds Eye Foods was a wholly owned subsidiary of
Pro-Fac. Birds Eye Foods operates through four primary products lines,
consisting of vegetable, fruits, snacks and canned meals. The majority of each
of the product lines' net sales was within the United States and, with the
exception of one facility in Mexico, all of Birds Eye Foods' facilities are
located in the United States. Through August 18, 2002, the results of Pro-Fac
were consolidated with Birds Eye Foods. The consolidated financial statements
were after elimination of intercompany transactions and balances.
As a result of the Transaction, described in NOTE 1 of the "Notes to
Consolidated Financial Statements," the results of operations for the third
quarter and first nine months of fiscal 2003 are not comparable with those of
such period of fiscal 2002.
The following is a discussion of the remaining components included in the
results of operations of Pro-Fac for its third quarter and first nine months of
fiscal 2003. Pro-Fac now operates in one segment, the marketing of crops grown
by its members.
CHANGES FROM THIRD QUARTER FISCAL 2002 TO THIRD QUARTER FISCAL 2003
Equity (loss)/income from Agrilink Holdings LLC: Subsequent to August 18, 2002,
Pro-Fac no longer reports its financial statements on a consolidated basis with
Birds Eye Foods and accounts for its investment in Agrilink Holdings LLC under
the equity method of accounting. For the quarter ended March 29, 2003, the
Cooperative recognized a loss of approximately $(0.1) million from Agrilink
Holdings LLC.
Gain from transaction with Birds Eye Foods, Inc. and related agreements: Pro-Fac
and Birds Eye Foods entered into a letter agreement dated as of the Closing Date
(the "Termination Agreement", as that agreement is described in NOTE 2 to the
"Notes to Consolidated Financial Statements"), pursuant to which, among other
things, the Marketing and Facilitation Agreement was terminated, and in
consideration of such termination, Pro-Fac will receive a termination fee of
$10.0 million per year for five years, provided that certain ongoing conditions
are met, including maintaining grower membership levels sufficient to generate
certain minimum crop supply. The $10.0 million payment will be paid in quarterly
installments to the Cooperative as follows: $4.0 million on each July 1, and
$2.0 million each October 1, January 1, and April 1. During the third quarter of
fiscal 2003, the Cooperative therefore received $2.0 million on January 1, 2003
from Birds Eye Foods.
Payments under the Termination Agreement are considered additional consideration
related to the Transaction. Accordingly, 40.72 percent of the payments received
under the Termination Agreement are recorded as an adjustment to Pro-Fac's
investment in Agrilink Holdings LLC. The remaining 59.28 percent of the annual
payment are recognized as additional gain from the transaction with Birds Eye
Foods in the period received. Accordingly, during the third quarter of fiscal
2003, Pro-Fac recognized approximately $1.2 million as additional gain from the
receipt of the termination payments.
Commercial market value adjustment: At its January 2003 board meeting, in an
action aimed at improving the Cooperative's short-term liquidity, the Board of
Directors of Pro-Fac determined to deduct 1 percent of the commercial market
value ("CMV") otherwise payable to Pro-Fac's member-growers for crops supplied
by Pro-Fac member-growers through the Cooperative for the 2002 and 2003 growing
seasons. The 1 percent CMV deduction will be withheld from the July 2003 and
July 2004 CMV payments. The 1 percent deduction for the 2002 growing season
resulted in approximately $0.6 million of income for the year-to-date period
ended March 29, 2003 which was recorded during the third quarter of fiscal 2003.
The Board of Directors of Pro-Fac resolved to review this recommendation
annually.
Selling, administrative, and general expense: Selling, administrative, and
general expenses totaled approximately $0.3 million for the quarter ended March
29, 2003. These expenses for the third quarter of fiscal 2003 were for general
operating purposes of the Cooperative.
Legal matters and settlement expenses: During the second quarter of fiscal 2003,
the Cooperative reached an agreement in principle as to the terms of settlement
with respect to the Blue Line and Seifer Trust litigations (see NOTE 8 of the
"Notes to Consolidated Financial Statements"). In anticipation of a final
settlement, Pro-Fac recorded a liability for approximately $1.3 million during
the second quarter of fiscal 2003. In addition, the Cooperative has incurred
approximately $0.4 million of legal costs during the third quarter of fiscal
2003 associated with these and other legal matters as disclosed in NOTE 8 to the
"Notes to Consolidated Financial Statements."
Tax provision: The Cooperative Bylaws are structured as to allow it to qualify
as a cooperative under Subchapter T of the Internal Revenue Code. The
Cooperative currently is seeking to qualify for exempt status as a farmers'
cooperative under Section 521 of the Internal Revenue Code. Exempt cooperatives
are permitted to reduce or avoid taxation through the use of special deductions
(such as dividends paid on its common stock and preferred stock). The current
provision for income taxes is computed as if the Cooperative is non-exempt. The
Cooperative will adjust its provision for income taxes when, and if, exempt
status is obtained.
CHANGES FROM FIRST NINE MONTHS FISCAL 2002 TO FIRST NINE MONTHS FISCAL 2003
As outlined above, from June 30, 2002 until August 18, 2002, Birds Eye Foods was
a wholly owned subsidiary of Pro-Fac. Through August 18, 2002, the results of
Pro-Fac were consolidated with Birds Eye Foods. The consolidated financial
statements were after elimination of intercompany transactions and balances. The
following summarizes the activity of Birds Eye Foods for the period June 30,
2002 through August 18, 2002:
June 30, 2002 -
(Dollars in Thousands) August 18, 2002
---------------
Net sales $ 103,726
Cost of sales (80,644)
----------
Gross profit 23,082
Selling, administrative, and general expense (15,468)
Other income 277
----------
Operating income 7,891
Interest expense (7,747)
----------
Pretax income 144
Tax provision (59)
----------
Net income $ 85
==========
As a result of the Transaction, described in NOTE 1 of the "Notes to
Consolidated Financial Statements," the results of operations for the
approximately seven weeks outlined above are not comparable with those of the
first nine months of fiscal 2002. Accordingly, the following is a discussion of
the remaining components included in the results of operations of Pro-Fac for
the first nine months of fiscal 2003.
Equity (loss)/income from Agrilink Holdings LLC: Subsequent to August 18, 2002,
Pro-Fac no longer reports its financial statements on a consolidated basis with
Birds Eye Foods and accounts for its investment in Agrilink Holdings LLC under
the equity method of accounting. For the nine months ended March 29, 2003, the
Cooperative recognized income of approximately $3.6 million from Agrilink
Holdings LLC.
Gain from transaction with Birds Eye Foods, Inc and related agreements: On
August 19, 2002, the Cooperative contributed to the capital of Agrilink Holdings
LLC all of the shares of Birds Eye Foods' common stock owned by Pro-Fac in
exchange for Class B common units of Agrilink Holdings LLC representing a 40.72
percent interest. Pro-Fac's investment in Birds Eye Foods prior to the
Transaction was approximately $24.9 million. This amount reflects the
forgiveness by Birds Eye Foods of approximately $36.5 million which represented
both borrowings for the working capital needs of Pro-Fac and a $9.4 million
demand payable. The value of the Cooperative's 40.72 percent common equity
ownership in Agrilink Holdings LLC is estimated at $31.4 million. The
Cooperative recognized a gain of $3.8 million from this exchange.
In addition, Pro-Fac and Birds Eye entered into the Transitional Services
Agreement described in NOTE 2 to the "Notes to Consolidated Financial
Statements." The estimated value of services to be received by Pro-Fac under the
agreement, of approximately $1.0 million, has been reflected as additional
proceeds from the Transaction. Accordingly, through the first nine months of
2003, Pro-Fac recognized approximately $.6 million as additional gain from the
Transitional Services Agreement.
Pro-Fac and Birds Eye Foods also entered into a letter agreement dated as of the
Closing Date (the "Termination Agreement"), pursuant to which, among other
things, the Marketing and Facilitation Agreement was terminated, and in
consideration of such termination, Pro-Fac will receive a termination fee of
$10.0 million per year for five years, provided that certain ongoing conditions
are met, including maintaining grower membership levels sufficient to generate
certain minimum crop supply. The $10.0 million payment will be paid in quarterly
installments to the Cooperative as follows: $4.0 million on each July 1, and
$2.0 million each October 1, January 1, and April 1. The Termination Agreement
provided that the first payment in the amount of $4.0 million was to be paid on
the Closing Date and the next payment made by October 1, 2002 and quarterly
thereafter as outlined in the agreement. Through the first nine months ended
March 29, 2003, the Cooperative, therefore, received $4.0 million from Birds Eye
Foods on August 19, 2002, $2.0 million on October 1, 2002 and $2.0 million on
January 1, 2003.
Payments under the Termination Agreement are considered additional consideration
related to the Transaction. Accordingly, 40.72 percent of the payments received
under the Termination Agreement are recorded as an adjustment to Pro-Fac's
investment in Holdings LLC. The remaining 59.28 percent of the annual payment
will be recognized as additional gain on the transaction with Birds Eye Foods in
the period received. Accordingly, through the first nine months of fiscal 2003,
Pro-Fac recognized approximately $4.8 million as additional gain from the
receipt of the termination payments.
As a result of the agreements described above, based on the 40.72 percent common
equity ownership, the Cooperative recognized a total gain, through the first
nine months of fiscal 2003, of approximately $9.2 million.
Commercial market value adjustment: At its January 2003 board meeting, in an
action aimed at improving the Cooperative's short-term liquidity, the Board of
Directors of Pro-Fac determined to deduct 1 percent of the commercial market
value ("CMV") otherwise payable to Pro-Fac's member-growers for crops supplied
by Pro-Fac member-growers through the Cooperative for the 2002 and 2003 growing
seasons. The 1 percent CMV deduction will be withheld from the July 2003 and
July 2004 CMV payments. The 1 percent deduction for the 2002 growing season
resulted in approximately $0.6 million of income for the year-to-date period
ended March 29, 2003 which was recorded during the third quarter.
Selling, administrative, and general expense: Selling, administrative, and
general expenses totaled $1.1 million for the nine months ended March 29, 2003.
During the first nine months of fiscal 2003, the Cooperative paid approximately
$.4 million to obtain insurance from St. Paul Mercury Insurance Company and
Great American Insurance Company, insuring the Cooperative against any
obligation it incurs as a result of its indemnification of its officers and
directors, and insuring such officers and directors for liability against which
they may not be indemnified by the Cooperative for events occurring prior to
August 19, 2002 where claims are submitted prior to August 19, 2008. This
insurance has a term expiring on August 19, 2008. The Board of Directors of
Pro-Fac resolved to review this recommendation annually.
The remaining expenses for the first nine months of fiscal 2003 were for general
operating purposes of the Cooperative.
Legal matters and settlement expenses: During the second quarter of fiscal 2003,
the Cooperative reached an agreement in principle as to the terms of settlement
with respect to the Blue Line and Seifer Trust litigations (see NOTE 8 to the
"Notes to Consolidated Financial Statements"). In anticipation of a final
settlement, Pro-Fac has recorded a liability for approximately $1.3 million
during December, 2002. In addition, the Cooperative incurred approximately $0.7
million of legal costs associated with these and other legal matters, as
disclosed in NOTE 8 to the "Notes to Consolidated Financial Statements," through
the first nine months of fiscal 2003.
Tax provision: The Cooperative Bylaws are structured as to allow it to qualify
as a cooperative under Subchapter T of the Internal Revenue Code. The
Cooperative currently is seeking to qualify for exempt status as a farmers'
cooperative under Section 521 of the Internal Revenue Code. Exempt cooperatives
are permitted to reduce or avoid taxation through the use of special deductions
(such as dividends paid on its common stock and preferred stock). The current
provision for income taxes is computed as if the Cooperative is non-exempt. The
Cooperative will adjust its provision for income taxes when, and if, exempt
status is obtained.
LIQUIDITY AND CAPITAL RESOURCES
As discussed above, as a result of the Transaction, Pro-Fac no longer
consolidates the assets and liabilities of Birds Eye Foods in its financial
statements. Pro-Fac's balance sheet does, however, reflect Pro-Fac's interest in
Agrilink Holdings LLC, which, as described in NOTES 1 and 2 to the "Notes to
Consolidated Financial Statements," is accounted for under the equity method.
From and after August 19, 2002, Pro-Fac's primary sources of cash are the
payments due to it by Birds Eye Foods under the Termination Agreement and the
Amended and Restated Marketing and Facilitation Agreement, which are described
in detail in NOTE 2 to the "Notes to the Consolidated Financial Statements." In
addition, pursuant to the Credit Agreement with Birds Eye Foods, described in
NOTE 5 of the "Notes to Consolidated Financial Statements," Pro-Fac also has
available to it up to $1.0 million per year, for five years. Finally, Birds Eye
Foods has agreed, pursuant to the Transitional Services Agreement, described in
NOTE 2 to the "Notes to the Consolidated Financial Statements" to provide
Pro-Fac certain administrative and other services for a period 24 months from
the Closing Date.
Net cash available to Pro-Fac is used to pay its operating expenses as well as
to pay dividends on its capital stock and to fund repurchases of its common
stock. In addition, Pro Fac will, after expiration of the 24-month term, need
cash to cover salary, administrative and other expenses currently furnished
under the Transitional Services Agreement.
Pro-Fac believes the sources described above will be sufficient to meet its
liquidity requirements for the foreseeable future.
A discussion of "Unaudited Consolidated Statement of Cash Flows" for the nine
months ended March 29, 2003 of fiscal 2003 follows:
Net cash used in operating activities of $29.1 million for the first nine months
of fiscal 2003 primarily represents changes in operating assets and liabilities
of Birds Eye Foods for the period June 29, 2002 through August 19, 2002. During
this time Pro-Fac consolidated its results with Birds Eye Foods.
Net cash used in investing activities for the first nine months of fiscal 2003
was $0.4 million. Of this amount approximately $5.8 million represents the cash
balance transferred at the date of the transaction with Birds Eye Foods.
Offsetting this amount was the receipt by the Cooperative of $8.0 million from
Birds Eye Foods under the Termination Agreement. Other amounts reported as cash
used in investing activities relate to the period June 29, 2002 through August
19, 2002 when Pro-Fac consolidated its results with Birds Eye Foods.
Net cash provided by financing activities include the repurchases of common
stock and dividends paid by the Cooperative during the first nine months of
fiscal 2003. Net proceeds from the issuance of short term debt of $22.0 million,
payments on long term debt of $0.2 million and cash paid for capital leases of
$.1 million relate to the period June 29, 2002 through August 19, 2002 when
Pro-Fac consolidated its results with Birds Eye Foods.
At its January 2003 board meeting, in an action aimed at improving the
Cooperative's short-term liquidity, the Board of Directors of Pro-Fac determined
to suspend the payment of annual dividends on the Cooperative's common stock for
an indefinite period of time and to deduct 1 percent of the commercial market
value ("CMV") otherwise payable to Pro-Fac's member-growers for crops supplied
by Pro-Fac member-growers through the Cooperative for the 2002 and 2003 growing
seasons. The 1 percent CMV deduction will be taken from the July 2003 and July
2004 CMV payments. The Board of Directors of Pro-Fac resolved to review this
recommendation annually.
On March 26, 2003, the Cooperative secured a $0.5 million Line of Credit from
Manufacturers And Traders Trust Company (the "M&T Line of Credit"). As of March
29, 2003, there were no borrowings outstanding under the Line of Credit.
Principal amounts borrowed bear interest at .75 percent per annum above the
prime rate in effect on the day proceeds are disbursed, as announced by the
Bank, as its prime rate of interest. Interest is payable monthly. Amounts
extended under the M&T Line of Credit are required to be paid down to zero
during each year by July 15, and maintained for a minimum of 90 consecutive
days. The first paydown will commence July 15, 2004. The Cooperative's
obligations under the M&T Line of Credit are secured by a security interest
granted to Manufacturers and Traders Trust Company in substantially all of the
assets of the Cooperative, excluding its Class B common units owned in Agrlink
Holdings LLC. However, collateral does include any distributions from the common
units and cash payments made by Birds Eye Foods to the Cooperative.
Pro-Fac guarantees certain obligations of Birds Eye Foods. Following is a
schedule of obligations at March 29, 2003 that are guaranteed by the
Cooperative.
(Dollars in Millions)
Amounts
Contractual Obligations Guaranteed Committed Expiration
- ---------------------------------- --------- -------------
Senior Subordinated Notes - 11-7/8 Percent $ 200.0 November 2008
Subordinated Promissory Note $ 37.6 November 2008
OTHER MATTERS
The vegetable and fruit portions of the business can be positively or negatively
affected by weather conditions nationally and the resulting impact on crop
yields. Favorable weather conditions can produce high crop yields and an
oversupply situation. This results in depressed selling prices. Excessive rain
or drought conditions can produce low crop yields and a shortage situation. This
typically results in higher selling prices. While the national supply situation
controls the pricing, the supply can differ regionally because of variations in
weather.
The cherry crop resulting from the fiscal 2002 growing season has been
drastically affected by weather in the prime growing areas in Michigan. These
growing regions experienced early season warm weather followed by a hard freeze
that resulted in an 80 percent reduction in the cherry crop compared to historic
harvest tonnage. The CMV for raw cherries tripled from recent years' average
prices.
In addition, dry weather conditions in the New York and Midwest growing regions
in 2002 reduced crop intake. The reduction in crop intake did not negatively
impact the adequacy of levels throughout the industry.
ITEM 4. CONTROLS AND PROCEDURES
The Cooperative maintains disclosure controls and procedures, as defined in Rule
13a-14(c) promulgated under the Securities Exchange Act of 1934 (the "Exchange
Act"). Within the 90 days prior to the date of this report, the Cooperative's
principal executive and principal financial officer carried out an evaluation of
the effectiveness of the design and operation of the Cooperative's disclosure
controls and procedures. Based on the evaluation of these disclosure controls
and procedures, the principal executive and principal financial officer
concluded that the Cooperative's disclosure controls and procedures were
effective.
There were no significant changes in the Cooperative's internal controls or in
other factors that could significantly affect these controls subsequent to the
date of their evaluation.
PART II
ITEM 1. LEGAL PROCEEDINGS
Certain of our legal proceedings are reported in our Annual Report on Form -K
for the year ended June 29, 2002, our Quarterly Report on Form 10-Q for the
period ended September 28, 2002, and our Quarterly Report on Form 10-Q for the
period ended December 29, 2002 with material developments since those reports
described in NOTE 8, "Other Matters," to the "Notes to Consolidated Financial
Statements," which information is incorporated by reference in answer to this
item.
ITEM 2. CHANGES IN SECURITIES
During January 2003, the Cooperative issued shares of its Class A Cumulative
Preferred Stock in exchange for shares of its Non-Cumulative Preferred Stock, on
a share-for-share basis. Such exchange is exempt from registration under Section
3(a)(9) of the Securities Act of 1933. The date and amount of the exchange is
set forth below:
Date Number of Shares Value of Shares
- ----------------- ---------------- ---------------
January 10, 2003 390 $9,750
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
(a) The regional annual membership meetings for the members of
Pro-Fac were held as follows:
Date Region/District City/State
----------------- --------------- -----------------------
February 3, 2003 I/1 and I/2 Rochester, New York
February 5, 2003 II/2 Springfield, Illinois
February 14, 2003 III Lincoln, Nebraska
February 11, 2003 IV Wilsonville, Oregon
February 12, 2003 IV Mt. Vernon, Washington
February 6, 2003 V Perry, Georgia
March 7, 2003 I/3 Johnstown, Pennsylvania
March 4, 2003 II/1 Holland, Michigan
(b) Peter Call, Robert DeBadts, Steven Koinzan, Allan Overhiser and
Darell Sarff were re-elected directors for a three-year term as a
result of the elections at the regional meetings held in February
and March 2003. The following is a list of the remaining directors
whose terms of office continued after the regional meetings.
Name Term Expires
----------------- ------------
Tom Croner 2004
Dale Burmeister 2004
Kenneth Dahlstedt 2004
Glen Lee Chase 2005
Bruce Fox 2005
Kenneth Mattingly 2005
Paul Roe 2005
Following are the voting results from the regional meetings:
Votes Cast For Votes Cast Against
Peter Call 91 0
Robert DeBadts 42 0
Steven Koinzan 15 0
Allan Overhiser 71 0
Darell Sarff 17 0
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits
Exhibit Number Description
10.1 Grid Note between the Cooperative and
Manufacturers and Traders Trust Company, dated
as of March 26, 2003.
10.2 General Security Agreement between the
Cooperative and Manufacturers and Traders Trust
Company, dated March 26, 2003
99.1 Birds Eye Foods, Inc. financial statements
for the quarter ended March 29, 2003
(filed herewith).
99.2 Certification of Principal Executive Officer
pursuant to 18 USC, Section 1350, as adopted
pursuant to Section 906 of the Sarbanes-Oxley
Act of 2002.
99.3 Certification of Principal Financial Officer
pursuant to 18 USC, Section 135.0, as adopted
pursuant to Section 906 of the Sarbanes-Oxley
Act of 2002.
(b) Reports on Form 8-K:
On February 11, 2003 the Cooperative filed a Report on Form 8-K
to report that Pro-Fac Cooperative Inc.'s Quarterly Report on
Form 10-Q for the fiscal quarter ended December 28,2002 had been
filed and that the report was accompanied by the certifications,
under Section 906 of the Sarbanes-Oxley Act of 2002, of Stephen
R. Wright, as principal executive and principal financial officer
of Pro-Fac.
On February 7, 2003 the Cooperative filed a Report on Form 8-K to
report that Pro-Fac Cooperative Inc's Quarterly Report on Form
10-Q/A for the fiscal quarter ended September 28,2002 had been
filed and that the report was accompanied by the certifications,
under Section 906 of the Sarbanes-Oxley Act of 2002, of Stephen
R. Wright, as principal executive and principal financial officer
of Pro-Fac.
On January 30,2003, the Cooperative filed a Report on Form 8-K to
report that Pro-Fac Cooperative Inc. had discovered accounting
errors in the financial information previously reported for its
first fiscal quarter ended September 28, 2002 which resulted in a
restatement of the Cooperative's 2002 quarterly financial
information for its fiscal quarter ended September 28, 2002 to
correct for these items.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
PRO-FAC COOPERATIVE, INC.
Date: May 13, 2003 BY: /s/ Stephen R. Wright
--------------------- --------------------------------
STEPHEN R. WRIGHT
General Manager and Secretary
(On Behalf of the Registrant and as
Principal Executive Officer
Principal Financial Officer, and
Principal Accounting Officer)
CERTIFICATION
I, Stephen R. Wright, certify that:
1. I have reviewed this quarterly report on Form 10-Q of Pro-Fac Cooperative,
Inc.;
2. Based on my knowledge, this quarterly report does not contain any untrue
statement of a material fact or omit to state a material fact necessary to
make the statements made, in light of the circumstances under which such
statements were made, not misleading with respect to the period covered by
this quarterly report;
3. Based on my knowledge, the financial statements, and other financial
information included in this quarterly report, fairly present in all
material respects the financial condition, results of operations and cash
flows of the registrant as of, and for, the periods presented in this
quarterly report;
4. The registrant's other certifying officers and I are responsible for
establishing and maintaining disclosure controls and procedures (as defined
in Exchange Act Rules 13a-14 and 15d-14) for the registrant and we have:
a) Designed such disclosure controls and procedures to ensure that
material information relating to the registrant, including its
consolidated subsidiaries, is made known to us by others within those
entities, particularly during the period in which this quarterly
report is being prepared;
b) Evaluated the effectiveness of the registrant's disclosure controls
and procedures as of a date within 90 days prior to the filing date of
this quarterly report (the "Evaluation Date"); and
c) Presented in this quarterly report our conclusions about the
effectiveness of the disclosure controls and procedures based on our
evaluation as of the Evaluation Date;
5. The registrant's other certifying officers and I have disclosed, based on
our most recent evaluation, to the registrant's auditors and the audit
committee of registrant's board of directors (or persons performing the
equivalent function):
a) All significant deficiencies in the design or operation of internal
controls which could adversely affect the registrant's ability to
record, process, summarize and report financial data and have
identified for the registrant's auditors any material weaknesses in
internal controls; and
b) Any fraud, whether or not material, that involves management or other
employees who have a significant role in the registrant's internal
controls; and
6. The registrant's other certifying officers and I have indicated in this
quarterly report whether or not there were significant changes in internal
controls or in other factors that could significantly affect internal
controls subsequent to the date of our most recent evaluation, including
any corrective actions with regard to significant deficiencies and material
weaknesses.
Date: May 13, 2003 /s/ Stephen R. Wright
------------------------ -------------------------------
Stephen R. Wright
General Manager and Secretary
(Principal Executive Officer
and Principal Financial Officer)