Back to GetFilings.com
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-K
[x] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the fiscal year ended December 31, 2002
OR
[_] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES ACT OF 1934
Commission file number 000-24711
---------
EBS LITIGATION, L.L.C.
(Exact name of registrant as specified in its charter)
Delaware 13-3989964
(State or other jurisdiction (I.R.S. Employer
of incorporation) Identification Number)
c/o Friedman, Wang & Bleiberg, P.C.
90 Park Avenue
New York, New York 10016
Attn: Peter N. Wang
(Address of principal executive offices)
Registrant's telephone number, including area code (212) 682-7474
Securities registered pursuant to Section 12(b) of the Act:
None
Securities registered pursuant to Section 12(g) of the Act:
Class A Membership Units
(Title of class)
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 12 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 if disclosure of delinquent filers pursuant to Item
405 of Regulation S-K is not contained herein, and will not be contained, to the
best of registrant's knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K or any amendment to this
Form 10-K. [X]
There is no aggregate market value of the registrant's Class A Membership
Units held by nonaffiliates of the registrant as of December 31, 2002. Book
value of the registrant's Class A Membership Units as of December 31, 2002 was
approximately $0.6 million.
There were 10,000,000 Class A Membership Units outstanding as of March 15,
2003.
PART I
ITEM 1-- BUSINESS
Unless otherwise noted, all references to "the Company" shall mean EBS
Litigation, L.L.C., a Delaware limited liability company.
Background
On September 9, 1997, the United States Bankruptcy Court for the District
of Delaware (the "Bankruptcy Court") entered an order in accordance with section
1129 of the Bankruptcy Code, 11 U.S.C. ss.ss. 101-1330, et seq., (the
"Bankruptcy Code") confirming the Amended Joint Plan of Reorganization Under
Chapter 11 of the Bankruptcy Code (the "Plan") filed by Edison Brothers Stores,
Inc. ("Edison") and its affiliated debtors in possession (collectively with
Edison, the "Debtors"). The Plan became effective on September 26, 1997 (the
"Effective Date").
The Company was established pursuant to the Plan and the EBS Litigation,
L.L.C. Members Agreement (the "Members Agreement"). Pursuant to the Plan, each
holder of an Allowed General Unsecured Claim (as defined in the Plan) against
Edison was entitled to receive a distribution on account of such claim which
included, among other consideration, the holder's pro rata share of the
Company's Class A Membership Units in the Company. The initial distribution date
under the Plan occurred on or about December 12, 1997 (the "Initial Distribution
Date"). Accordingly, in late December of 1997, holders of Allowed General
Unsecured Claims began receiving membership certificates evidencing their
ownership of Class A Membership Units in the Company. As of December 31, 1999,
2000, 2001 and 2002 there were 10,000,000 Class A Membership Units and no Class
B Membership Units of the Company issued and outstanding.
The Plan further provided for the Debtors' transfer to the Company of their
right, title and interest in and to all of the Debtors' potential fraudulent
transfer causes of action under the Bankruptcy Code or applicable state law,
arising in connection with (a) the June 29, 1995 distribution by Edison of
approximately 4,404,560 shares of common stock (the "D&B Common Stock") in Dave
& Buster's Inc., a Missouri corporation ("Dave & Busters"), to holders of Edison
common stock (the "D&B Spinoff Stockholders") in the form of a dividend; and (b)
all related transactions (the "D&B Spinoff"). The causes of action relating to
the D&B Spinoff are referred to herein as the "Unresolved Avoidance Claims."
Following transfer of the Unresolved Avoidance Claims to the Company, the Plan
provided for the appointment of the Company as the representative of the
Debtors' estates for the purpose of retaining and enforcing the Unresolved
Avoidance Claims in accordance with section 1123(b)(3)(B) of the Bankruptcy Code
and the Members Agreement.
The Plan further obligated the Debtors to transfer the "L.L.C. Funding
Amount," in an amount designated by the Official Committee of Unsecured
Creditors appointed in the Debtors' chapter 11 cases (the "Creditors'
Committee"), to the Company on the Effective Date. The Creditors' Committee
designated $2 million as the L.L.C. Funding Amount payable to the Company; such
L.L.C. Funding Amount was paid to the Company on October 16, 1997.
Formation of the Company and Summary of Certain Provisions of the Members
Agreement
Formation
In accordance with the Plan, the Certificate of Formation of the Company
was filed on September 24, 1997, with the office of the Delaware Secretary of
State for the purpose of forming the Company as a limited liability company
under the provisions and subject to the requirements of the State of Delaware,
and in particular the Delaware Limited Liability Company Act, Del. Code Ann.
tit.6, ch. 18 (the "Delaware Act"). The Certificate of Formation became
effective on September 25, 1997 (the "Inception Date").
2
Purposes
The Company was organized solely for the purposes of (a) prosecuting,
settling and/or liquidating the Unresolved Avoidance Claims; (b) receiving and
administering all assets of the Company (i.e., the cash proceeds of the
Unresolved Avoidance Claims or "Avoidance Claim Proceeds" as well as other
property or proceeds received by the Company); and (c) distributing the net
Avoidance Claim Proceeds to holders of Membership Units in the Company pursuant
to the terms of the Members Agreement. The Company has no objective to engage in
the conduct of any trade or business. In essence, the Company constitutes a
vehicle for (a) converting the Unresolved Avoidance Claims to cash, whether by
means of the D&B Spinoff Settlement (as defined in the Plan) or other
settlement, or enforcement of a judgment ultimately obtained; and then (b)
distributing all net cash to holders of Membership Units in the Company.
Administration and the Manager
The Company has no employees. The affairs of the Company are managed by the
Manager. The Manager of the Company, as duly designated by the Creditors'
Committee, is Peter N. Wang (in such capacity, the "Manager"). The principal
office of the Company is maintained at the office of the Manager, which is the
law office of Friedman, Wang & Bleiberg, P.C. ("FWB"), 90 Park Avenue, New York,
New York 10016. The telephone number is (212) 682-7474.
In furtherance of the Company's purposes and subject to the retained
jurisdiction of the Bankruptcy Court as provided for in the Plan, the Manager is
obligated to make continuing efforts to (1) prosecute, settle and/or liquidate
the Unresolved Avoidance Claims, based upon the assessment of the Manager, with
the advice of counsel and consultants retained by the Manager, of (A) the
likelihood that the Company will prevail on the merits, (B) the possible
recovery on such litigation, (C) the estimated cost (and attendant delay) of
such litigation, (D) the offer of settlement, (E) the resources of the Company
that are available for prosecuting the Unresolved Avoidance Claims, and (F) any
other matters that the Manager deems to be relevant to such assessment, and (2)
make distributions of Avoidance Claim Proceeds; in each case in an expeditious
but orderly manner intended reasonably to maximize the value of such
distributions to the Members, but subject to the judgment and discretion of the
Manager and the provisions of the Members Agreement. The Manager is not liable
or accountable, in damages or otherwise, to the Company or to any Member for any
action or inaction, except in the case of his willful breach of a material
provision of the Members Agreement or gross negligence in connection with the
performance of his duties under the Members Agreement.
The Manager is empowered to retain such independent experts and advisors
(including, but not limited to, law firms, tax advisors, consultants or other
professionals) as the Manager may select to aid in the performance of his duties
and responsibilities and to perform such other functions as may be appropriate
in furtherance of the intent and purpose of the Members Agreement.
The Members Agreement also requires the Manager to designate one of the
Members as the "Tax Matters Partner" (as defined in the Section 6231 of the
Internal Revenue Code). The Tax Matters Partner is required to represent the
Company (at the Company's expense) in connection with all examinations of the
Company's affairs by tax authorities and to expend Company funds for
professional services associated therewith. The Tax Matters Partner also
arranges for the preparation and timely filing of all returns required to be
filed by the Company and the distribution of Form K-1 or other similar forms to
all Members. In accordance with the Members Agreement, the Manager has
designated Citibank, N.A., through its authorized representative Randolph I.
Thornton, Jr., to serve as the Tax Matters Partner of the Company.
The Manager has selected the law firm of Jones Day ("Jones Day") to serve
as counsel to the Company. Jones Day's principal duties as counsel for the
Company involve the prosecution of the D&B Spinoff Litigation (as defined below)
and related negotiations. Prior to the Effective Date, Jones Day served as
counsel to the Creditors' Committee. The Manager has selected
PricewaterhouseCoopers LLP to provide the Company with financial reporting and
consulting services as well as tax-related services. Wells Fargo Bank Minnesota,
N.A. (formerly known as Norwest Bank Minnesota, N.A.), which serves as the
Company's Transfer Agent and as the Company's Disbursing Agent under the Plan,
maintains the Company's funds and ownership registers, coordinates distributions
3
to Members of the Company, and performs related administrative duties. Rubin,
Brown, Gornstein & Co., LLP serves as the Company's independent auditors.
Subject to the retained jurisdiction of the Bankruptcy Court as provided
for in the Plan, but without prior or further authorization, the Manager may
control and exercise authority over the Company's assets, over the acquisition,
management and disposition thereof and over the management and conduct of the
Company to the extent necessary to enable the Manager to fulfill the intent and
purposes of the Members Agreement. No person dealing with the Company is
obligated to inquire into the authority of the Manager in connection with the
acquisition, management or disposition of the Company's assets. In connection
with the administration of the Company's assets and the management of the
Company's affairs, the Manager has the power to take any and all actions as, in
the Manager's sole discretion, are necessary or advisable to effectuate the
purposes of the Company. The Manager may not, however, at any time, on behalf of
the Company or the Members, enter into or engage in any trade or business, and
no part of the Company's assets will be used or disposed of by the Manager in
furtherance of any such trade or business. All decisions and actions taken by
the Manager under the authority of the Members Agreement are binding upon all of
the Members and the Company. Without the consent of all of the Members, the
Manager may not (1) take any action in contravention of the Members Agreement;
(2) take any action which would make it impossible to carry on the activities of
the Company; or (3) possess property of the Company or assign the Company's
rights in specific property for other than Company purposes.
Term of the Company; Dissolution
The Company's existence was originally scheduled to terminate (unless
dissolved earlier) on September 26, 2000 (the third anniversary of the Effective
Date). However, the Manager (with the approval of Bankruptcy Court) extended the
Company's existence until September 2002. In September 2002, the Manager (with
the approval of the Bankruptcy Court) extended the Company's existence until
September 2004. If the Company's Assets have not been fully liquidated and
distributed or all Disputed General Unsecured Claims (as defined in the Plan)
have not been resolved then the Company's existence may be extended for another
two year period. The Company may also be earlier dissolved because of an
adjudication of the Bankruptcy Court or because of the unanimous written consent
of all Members. In the event of the Company's dissolution, following the payment
of, or provision for, all debts and liabilities of the Company and all expenses
of liquidation, and subject to the right of the Liquidating Agent (as defined in
the Members Agreement) to set up reasonable cash reserves for any contingent or
unforeseen liabilities or obligations of the Company, all assets of the Company
(or the proceeds thereof) will be distributed to holders of Class A Membership
Units in accordance with their respective Capital Account (as defined in the
Members Agreement) balances. No Member will have any recourse against Edison or
any other Member for any distributions with respect to such Member's Capital
Account balances.
The Company's Operations Since Inception
Commencement of Litigation
On September 29, 1997, the Company, as the assignee of the Unresolved
Avoidance Claims, filed a complaint (the "Complaint") with the Bankruptcy Court,
commencing the prosecution of all Unresolved Avoidance Claims against the D&B
Spinoff Stockholders, Dave & Busters, and their current management. The lawsuit
is pending before the Bankruptcy Court as Adversary Proceeding No. A-97-171 (the
"D&B Spinoff Litigation"). The Complaint filed by the Company alleged, among
other things, that Edison had not received reasonably equivalent value for the
D&B Common Stock and certain realty holdings valued at approximately $7.3
million in connection with the D&B Spinoff, and thus sought to recover the D&B
Common Stock, or the value thereof, from the D&B Spinoff Stockholders.
The Company also filed a Motion to Certify Defendant Class, requesting that
the Bankruptcy Court permit the Company to prosecute the D&B Spinoff Litigation
as a defendant class action. A defendant class action is a procedural device
whereby the plaintiff, in this case the Company, can identify a limited number
of qualified defendants to represent the interests of a larger number of
similarly situated defendants and upon prevailing, can take judgment against all
defendants. Certification of a defendant class and designation of class
representatives permits the plaintiff to obtain uniform relief from all
defendants by removing the inefficiencies and risks of
4
inconsistent or varying adjudications with respect to individual members of the
class. The Company initially identified 11 parties to serve as class
representatives.
In addition to seeking recovery of the D&B Spinoff Stock or its value from
the D&B Spinoff Stockholders, the Complaint sought to recover approximately $7.3
million transferred to insiders of Dave & Busters by subsidiaries of Edison.
Specifically, the Complaint alleged that Edison paid a $3.75 million dividend to
one subsidiary, and satisfied an antecedent debt of $3.55 million to another
subsidiary, for the sole purpose of providing cash to pay advances to certain
individual defendants. The Complaint sought recovery of these cash transfers
from defendants Dave & Busters, D&B Realty Holding, Inc., and the named
individuals (collectively, the "Spinoff-Related Defendants"). On October 30,
1997, the Spinoff-Related Defendants filed a joint answer, generally denying the
relevant allegations of the Complaint, setting forth certain affirmative
defenses and demanding a trial by jury. The Spinoff-Related Defendants also
filed a Motion for a Determination that the proceeding is a Core Proceeding
(which is a proceeding over which a bankruptcy court may preside in accordance
with 28 U.S.C.ss. 157(d)), which was granted without objection, as well as a
Motion for Withdrawal of Reference, seeking withdrawal of the D&B Spinoff
Litigation to the United States District Court for the District of Delaware (the
"District Court"). On August 10, 1998, the Company entered into a Settlement
Agreement with the Spinoff-Related Defendants and certain other interested
parties, wherein the Company released these parties from all Spinoff-Related
claims in return for a payment of $2.1 million. The action against the
Spinoff-Related Defendants was dismissed August 20, 1998, and the money was paid
into the Disbursing Agent's account on August 26, 1998.
The D&B Spinoff Settlement
Notwithstanding commencement of the D&B Spinoff Litigation, each D&B
Spinoff Stockholder had the right to obtain a release of all Unresolved
Avoidance Claims against it by participating in the D&B Spinoff Settlement
provided for in the Plan. In order to participate in the D&B Spinoff Settlement,
a D&B Spinoff Stockholder was obligated to exercise one of three settlement
options outlined in the Plan. The three settlement options permitted D&B Spinoff
Stockholders to participate by means of (a) exercising a specified number of
rights granted to Edison stockholders under the Plan; (b) paying cash to the
Company in an amount equal to the D&B Spinoff Release Minimum Purchase Price
described below; or (c) a combination of rights exercised and cash paid, all as
determined in accordance with formulas set forth in the Plan. Most of the D&B
Spinoff Stockholders who elected to participate in the D&B Spinoff Settlement
elected the settlement option (the "Direct Purchase Option") involving the
payment of the "D&B Spinoff Release Minimum Purchase Price," which was equal to
the product of (a) $5.6593, and (b) the number of shares of D&B Common Stock
that such D&B Spinoff Stockholder received in connection with the D&B Spinoff.
The Plan provided for the expiration of the D&B Spinoff Settlement Period
on the 30th day after the Effective Date. The Company elected to extend such
period for the Direct Purchase Option until March 30, 1998. It was determined
that such an extension was in the best interests of the Company, as it permitted
the recovery of approximately $4.5 million in D&B Spinoff Settlement Proceeds
from defendants who were not able to accept the D&B Spinoff Settlement Offer by
the initial deadline, for reasons including, without limitation, (a) the time
lag attendant to the transmission of settlement-related documents from record
holders to their beneficial holders, and (b) the desire of certain D&B Spinoff
Stockholders to consult with counsel or other advisors prior to participating in
the D&B Spinoff Settlement.
At December 31, 1998, the D&B Spinoff Settlement Proceeds that had been
received by the Company aggregated approximately $15.0 million. This sum
represents the aggregate settlement amount paid by D&B Spinoff Stockholders of
approximately 2.4 million shares of D&B Common Stock. Holders of approximately 2
million remaining shares did not participate in the D&B Spinoff Settlement. For
procedural reasons, the Company is only seeking recovery against D&B Spinoff
Stockholders who received more than 55 shares of D&B Common Stock in the D&B
Spinoff.
On November 21, 1997, the Company temporarily withdrew its Motion to
Certify Defendant Class, in light of the fact that each of the proposed class
representatives had elected to participate in the D&B Spinoff Settlement.
Following efforts to identify adequate class representatives to replace the
initial proposed class representatives, on March 6, 1998, the Company filed (a)
its Motion to File Amended Class Complaint, requesting leave to file an amended
complaint (the "Amended Complaint") substantively similar to the Complaint but
identifying new
5
proposed class representatives; and (b) a Renewed Motion to Certify Defendant
Class. On March 30, 1998, the Bankruptcy Court granted each of these motions.
The Bankruptcy Court's Order Certifying Defendant Class Action (the "Class
Certification Order") certified the following defendant class (the "Defendant
Class") as a mandatory defendant class pursuant to Rule 23(b)(1) of the Federal
Rules of Civil Procedure:
All persons or entities who were the beneficial or legal
recipients of at least 55 shares of the June 1995 transfer of
4,404,560 shares of Dave and Busters stock from Edison except
those persons or entities who have obtained a release of
Unresolved Avoidance Claims, as defined in the Plan, that was
confirmed on September 9, 1997.
The Class Certification Order designated the following entities
(collectively, the "Class Representatives") to represent the Defendant Class:
Barclays Global Investors, N.A.; Greentree Partners; Greenway Partners; Wilshire
Associates, Inc; and WKW Asset Management.
On May 22, 1998, Class Representative Wilshire Associates, Inc. filed a
motion under Federal Rule of Civil Procedure 12(b)(6), seeking the Bankruptcy
Court's determination that Wilshire Associates, Inc. is not a proper party to
the D&B Spinoff Litigation. Wilshire Associates, Inc. asserts that it merely
serves as the nominee record holder of D&B Spinoff Stock, for the benefit of a
number of persons who have not thus far been identified. The Company has filed a
response to such motion, indicating that it will consent to dismissal of
Wilshire Associates, Inc. from the D&B Spinoff Litigation if Wilshire
Associates, Inc. adequately identifies, voluntarily or in accordance with an
order of the Bankruptcy Court, the persons for whose benefit it holds D&B
Spinoff Stock.
The Class Representatives selected Edward McNally and the Wilmington,
Delaware law firm of Morris, James, Hitchens & Williams ("Class Counsel") to
represent the Defendant Class. On June 8, 1998, Class Counsel filed a motion
seeking payment of all fees and costs relating to the D&B Spinoff litigation.
The Bankruptcy Court has not yet ruled on the motion, which the Company opposes.
Following official appointment of Class Counsel by the Bankruptcy Court, the
Class Counsel, on July 1, 1998, filed a motion requesting decertification of the
Defendant Class and a motion to withdraw reference from the bankruptcy court.
The Company filed its responses opposing the motions on July 14, 1998 and July
28, 1998, respectively. On July 17, 1998, the Defendant Class filed a motion to
dismiss the action. The Company's response opposing this motion was filed on
August 10, 1998.
The Defendant Class' Motion to Withdrawal Reference was assigned in the
district court in late September 1998. The Motion was fully briefed, and the
Company requested oral argument.
In May 1999 the United States District court for the District of Delaware
heard arguments on, and in July 1999 denied, the Defendant Class' Motion to
Dismiss, the Defendant Class' Motion to Decertify the Defendant Class and Named
Representative Wilshire Associates, Inc.'s ("Wilshire's") Motion to Dismiss.
The Company's lawyers completed third-party discovery, including
depositions of former officers and directors of Edison, and third-party
discovery closed on March 31, 2000, pursuant to court order. On or about March
29, 2000, the Class Representatives filed a third-party complaint against former
directors of Edison (the "Edison Third-party Defendants"), former and current
directors of Dave & Busters, Inc. and against Dave & Busters, Inc. (the "D&B
Third-party Defendants" and collectively with Edison Third-party Defendants, the
"Third-party Defendants"). The complaint purports to allege claims for breach of
fiduciary duties, aiding and abetting breaches of fiduciary duties, and for
contribution or "subrogation."
In June 2000, the Third-party Defendants each filed a motion to dismiss the
third-party complaints against them ("Motions to Dismiss"). The Company filed a
joinder in those Motions to Dismiss. On August 21, 2000, the Court held a
hearing on the Motions to Dismiss and other matters. By Order dated as of August
28, 2000, the Court granted the Motions to Dismiss in part, and denied them in
part. The Court dismissed the breach of fiduciary duty claims and the related
claims for aiding and abetting breach of fiduciary duty, finding the claims, if
any, barred by the statute of limitations. However, the court denied the Motion
to Dismiss the purported contribution and/or "subrogation" claim. Because of
certain inconsistencies in the court's rulings, the Third-party Defendants moved
for clarification, reconsideration, or in the alternative, interlocutory
(immediate) appeal ("Motions for Reconsideration"). The Company filed a limited
joinder in those Motions for Reconsideration, and the Class filed its
opposition. The Court ruled on the Motion for Reconsideration on January 12,
2001 dismissing all third party
6
claims, and entered judgment under Rule 54(b) on March 13, 2001. The Class
sought and received leave to appeal this interlocutory order.
In July 2000, the Class Representatives also filed a Motion to Amend the
Order Certifying the Defendant Class ("Motion to Amend"). In this Motion to
Amend, the Class Representatives seek to add absent class members as named class
representatives. The Company opposed this Motion to Amend on the grounds that:
(i) the Class Representatives should not have been represented by Class Counsel
in the Motion to Amend against absent class members; (ii) there was no showing
of need to add named Class Representatives; and (iii) the adding of certain
absent class members as named class representatives could create unnecessary
conflicts for the Company's lawyers to the substantial prejudice of the Company.
Two of the proposed named Class Representatives, Mellon Bank and Boston Safe
Deposit, related entities, filed substantive objections to the Motion to Amend
on similar grounds. On August 21, 2000, the Court heard argument on the issues
presented by the Motion to Amend and took the matter under advisement. The
parties thereafter agreed that additional named Class Representatives may be
added. The Court granted that motion on November 28, 2001.
As mentioned above, in September 2000, the Company filed a motion with the
United States Bankruptcy Court, District of Delaware to reopen the bankruptcy
case of the Debtors for the limited purpose of extending the term of the
Company. Section 1.4 of the Company's members Agreement limits the Company's
existence to three years subject to extension(s) approved by the Bankruptcy
Court for good cause shown. Therefore, the Company's existence was set to expire
on September 26, 2000, unless extended by the Bankruptcy Court. In its motion,
the company argued that the Company's members would be best served by permitting
the Company to remain a going concern. The Bankruptcy Court granted the
Company's motion to extend the existence of the Company for an additional
two-year term.
On January 22 and 23, 2002, the D&B Spinoff Litigation was tried before
Judge Robinson in the District Court. The Company continues to prosecute the D&B
Spinoff Litigation vigorously, and to pursue the maximum available recoveries.
While there can be no assurances as to the Company's ultimate total recovery
given the uncertainties associated with litigation, at this juncture it is
estimated that such recoveries will exceed the costs of further prosecuting the
D&B Spinoff Litigation.
In June and July 2002, the Company settled with two members of the Class.
As a result of the settlements the Company collected approximately $210,626.
There can be no assurances that other members of the Class will settle or what
the terms of any other potential settlements may be.
In September 2002, the Company filed a motion with the Bankruptcy Court to
reopen the bankruptcy case of Edison Brothers Stores, Inc. for the limited
purpose of extending the term of the Company. As mentioned above, Section 1.4 of
the Company's Members Agreement originally limited the Company's existence to
three years subject to extension(s) approved by the Bankruptcy Court for good
cause shown. In September 2002, the Bankruptcy Court granted the Company's
motion to extend the existence of the Company for an additional two-year term.
After the January 2002 trial, on September 18, 2002, the United States
Court of Appeals for the Third Circuit (the "Third Circuit") issued a decision
of the Class' interlocutory appeal of Judge Robinson's decision dismissing their
third party claims against the Third-party Defendents. The Third Circuit
reversed Judge Robinson's dismissal and remanded that portion of the case back
to the District Court. No decision from that trial has been rendered.
On January 10, 2003, the Bankruptcy Court approved a settlement with
another member of the Class, Trust Company of the West and its related entities,
in the amount of $615,940. The Company received payment on February 18, 2003.
There can be no assurances that other members of the Class will settle or what
the terms of any other potential settlements may be.
In February 2003, the District Court referred the D&B Spinoff Litigation to
mediation before a magistrate judge. The mediation is scheduled to take place on
March 28, 2003. The mediation will involve all claims: the Company's claim
against the Class, the Class' third party claims against the Edison Third-party
Defendants, as well as, the threatened indemnification claims by the Third-party
Defendants against the Company, pursuant to indemnification provisions in the
Debtor's Plan.
7
ITEM 2--PROPERTIES
The Company does not own or lease any property.
ITEM 3--LEGAL PROCEEDINGS
Other than the D&B Spinoff Litigation described throughout this Annual
Report on Form 10-K, the Company is not involved in any legal proceedings.
ITEM 4--SUBMISSION OF MATTERS TO A VOTE OF SECURITY-HOLDERS
No matters were submitted to holders of Membership Units for vote during
the fiscal year ended December 31, 2002.
PART II
ITEM 5--MARKET FOR REGISTRANT'S COMMON EQUITY AND RELATED STOCKHOLDER MATTERS
There is no established public trading market for the Company's Class A
Membership Units. As of December 31, 2002, there were 2,059 certificated holders
of record of the Class A Membership Units. See Item 12 -- "Security Ownership of
Certain Beneficial Owners and Management" for more information.
ITEM 6--SELECTED FINANCIAL DATA
The following summary operating and balance sheet data sets forth selected
financial information of the Company as of and for the years ended December 31,
2002, 2001, 2000, 1999 and 1998 and the period ended December 31, 1997 since the
Inception Date. The selected financial data as of and for the years ended
December 31, 2002, 2001, 2000, 1999 and 1998 has been derived from the Company's
financial statements, which were audited by Rubin, Brown, Gornstein & Co., LLP.
The following information should be read in conjunction with the Company's
financial statements and notes thereto included elsewhere herein and
"Management's Discussion and Analysis of Financial Condition and Results of
Operations," presented below.
Year ended Year ended Year ended Year ended Year ended Period ended
December 31, December 31, December 31, December 31, December 31, December 31,
2002 2001 2000 1999 1998 1997/(1)/
------------ ------------ ------------ ------------ ------------- ------------
Operating Statement Data:
Defendant payment revenue 210,626 --- $3,708 --- $4,981,595 $ 9,991,975
Interest income 12,901 50,741 98,160 92,376 388,168 106,048
Expenses 691,305 442,495 488,762 298,707 671,438 175,587
Net (loss) income (467,778) (391,754) (386,894) (206,331) 4,698,325 9,922,436
Distribution per Class A -0- -0- -0- 1.49/(3)/ 1.45(2) -0-
Membership Unit
Balance Sheet Data (at
period end):
Total assets 830,308 1,263,294 1,610,146 1,996,483 $3,049,682 $12,069,695
Accrued expenses 169,763 147,873 102,971 102,414 161,560 147,259
Members' equity 647,643 1,115,421 1,507,175 1,894,069 2,888,122 11,922,436
- ----------------------------
/(1)/ The Company's inception date was September 25, 1997.
8
/(2)/ This represents an average distribution made per Class A Membership Unit
during the year. Actual distributions to Class A Membership Unit holders
may differ. The following includes a detailed discussion of the
distributions made during the year. During April 1998, the Company
distributed approximately $7.0 million to the holders of 9,342,874 Class A
Membership Units that were outstanding at the date of distribution. During
June 1998, the Company distributed approximately $0.1 million to holders
of the 127,507 Class A Membership Units that were distributed in June
1998. During October 1998, the Company distributed approximately $6.6
million to the 9,470,381 holders of Class A Membership Units.
/(3)/ This represents an average distribution made per Class A Membership Unit
during the year. Actual distributions to Class A Membership Unit holders
may differ. During February 1999, the company distributed approximately
$0.8 million to holders of the 86,871 and 442,748 Class A Membership Units
that were distributed in November and December 1998, respectively.
ITEM 7--MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
The following is a discussion and analysis of the financial condition and
the results of operations of the Company as of and for the years ended December
31, 2002, 2001, 2000, 1999 and 1998 and as of and for the period ended December
31, 1997, and of certain factors that may affect the Company's prospective
financial condition and results of operations. This discussion and analysis
should be read in conjunction with the Company's Financial Statements and Notes
thereto included elsewhere herein. This discussion contains certain
forward-looking statements which involve risks and uncertainties. The Company's
actual results could differ materially from the results expressed in, or implied
by, such statements.
Results of Operations
The Company, which was formed pursuant to the Plan and the Members
Agreement, is a limited purpose entity which may not engage in any trade or
business. The Company was organized solely for the purposes of (a) prosecuting,
settling and/or liquidating the Unresolved Avoidance Claims, (b) receiving and
administering the Avoidance Claim Proceeds, and (c) distributing the net
Avoidance Claim Proceeds to holders of the Company's Class A Membership Units
pursuant to the terms of the Members Agreement. The Company commenced its
activities on September 25, 1997.
On October 16, 1997, the Company received the L.L.C. Funding Amount of $2
million. The Company recognizes income from amounts received from the
prosecution, settlement and liquidation of the Unresolved Avoidance Claims. To
date, the Company has only received settlement amounts. During the period ended
December 31, 1997, the Company received approximately $10.0 million in D&B
Spinoff Settlement Proceeds. The D&B Spinoff Settlement Period was to initially
expire on October 27, 1997, at which time the Company had received approximately
$7.8 million in D&B Spinoff Settlement Proceeds. However, many defendants were
not able to accept the D&B Spinoff Settlement by the initial deadline for
reasons including, without limitation, (a) the time lag attendant to the
transmission of settlement-related documents from record holders to their
beneficial holders, and (b) the desire of certain D&B Spinoff Stockholders to
consult with counsel or other advisors prior to participating in the D&B Spinoff
Settlement. The Manager therefore decided that an extension of the D&B Spinoff
Settlement Period was in the best interests of the Company. The extension
permitted the recovery of additional D&B Settlement Proceeds of approximately
$2.2 million between October 27, 1997 and December 31, 1997 and approximately
$5.0 million in the twelve month period ended December 31, 1998. For the year
ended December 31, 1999, the Company did not receive any proceeds. For the year
ended December 31, 2000, the Company received approximately $3,700. For the year
ended December 31, 2001, the Company did not receive any proceeds. For the year
ended December 31, 2002, the Company received approximately $211,000. The
Company expects to recognize defendant payment revenue in future periods as the
Unresolved Avoidance Claims are prosecuted, settled further, or both. However,
there can be no assurance that the Company will recognize any further defendant
payment revenue.
The Company also recognizes income from interest earned on Avoidance Claim
Proceeds. The Company invests Avoidance Claim Proceeds in a money market fund
investing solely in direct obligations of the United States Government. The
Members Agreement permits all funds received by the Company to be temporarily
invested in United States treasury bills and notes with maturities of 12 months
or less, institutional money market funds, and demand or time deposits with U.S.
federal or state commercial banks having primary capital of not less than $500
million. During the years ended December 31, 2002, 2001, 2000, 1999 and 1998 and
the period ended December 31, 1997, the Company recognized approximately
$13,000, $51,000, $98,000, $92,000, $388,000 and $106,000 of interest income,
respectively. The amount of interest income recognized by the Company in future
9
periods will be dependent on, among other things, (1) fluctuations in interest
rates, (2) the amounts and timing of any Avoidance Claims Proceeds received in
the future, (3) the amounts and timing of any distributions to holders of Class
A Membership Units, and (4) the amount and timing of the Company's expenses.
The Company's expenses consist primarily of fees payable to the Transfer
Agent, the Manager, and the Company's lawyers, accountants and auditors and
insurance expenses. The Company had expenses of approximately $691,000,
$442,000, $489,000, $299,000, $671,000 and $176,000 for the years ended December
31, 2002, 2001, 2000, 1999 and 1998 and the period ended December 31, 1997,
respectively. The Company's expenses increased during fiscal year 2002 due
primarily to an increase in legal fees while actively litigating the D&B Spinoff
Litigation, as well as an increase in accounting fees due to various reporting
requirements. These expenses are expected to fluctuate in future periods
primarily based on the activity in any period in the D&B Spinoff Litigation.
The Company and EBS Pension, L.L.C. (another limited liability company
formed pursuant to the Plan), pursuant to the Plan, will indemnify the Debtors
and their present or former officers, directors and employees from and against
any losses, claims, damages or liabilities by reason of any actions arising from
or relating to the Company and any actions taken or proceeding commenced by the
Company (other than with respect to any Unresolved Avoidance Claims that the
Company may have against such persons other than in their capacities as
officers, directors or employees of the Debtors). Indemnification must first be
sought from any applicable officers' and directors' insurance policy, and then
from the $1.5 million reserve established by EBS Pension, L.L.C. Although to
date there has not been any indemnification claim, there can be no assurance
such a claim will not be made in the future. All liabilities of the Company,
including the foregoing indemnification obligations, will be satisfied from the
Company's assets.
At December 31, 2002, 2001, 2000, 1999, 1998 and 1997, the Company had cash
and cash equivalents of approximately $778,000, $ 1.2 million, $1.5 million,
$1.9 million, $3.0 million and $12.0 million, respectively. During 2002, 2001
and 2000, the Company did not make any distributions to holders of Class A
Membership Units. During 1999, the Company distributed an aggregate amount of
$0.8 million to holders of Class A Membership Units. During 1998, the Company
distributed an aggregate amount of $13.7 million to holders of Class A
Membership Units. During 1997, the Company did not make any distributions to
holders of Class A Membership Units. The amount and timing of any future
distributions of Avoidance Claim Proceeds will be determined by the Manager in
accordance with the terms of the Members Agreement. There can be no assurance as
to the amount (if any) of any further distributions that will be made.
The Company is classified as a partnership for federal income tax purposes
and, therefore, does not pay taxes. Instead, the Members pay taxes on their
proportionate share of the Company's income.
10
ITEM 8--FINANCIAL STATEMENTS
REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS
Independent Auditors' Report
Rubin, Brown, Gornstein & Co., LLP
One North Brentwood
St. Louis, MO 63105
Members
EBS Litigation, L.L.C.
St. Louis, Missouri
We have audited the accompanying balance sheets of EBS Litigation, L.L.C., a
limited liability company, as of December 31, 2002 and 2001, and the related
statements of operations, changes in members' equity and cash flows for the
years ended December 31, 2002, 2001 and 2000. These financial statements are the
responsibility of the Company's management. Our responsibility is to express an
opinion on these financial statements based on our audits.
We conducted our audits in accordance with auditing standards generally accepted
in the United States of America. Those standards require that we plan and
perform the audit to obtain reasonable assurance about whether the financial
statements are free of material misstatement. An audit includes examining, on a
test basis, evidence supporting the amounts and disclosures in the financial
statements. An audit also includes assessing the accounting principles used and
significant estimates made by management, as well as evaluating the overall
financial statement presentation. We believe that our audits provide a
reasonable basis for our opinion.
In our opinion, the financial statements referred to above represent fairly, in
all material respects, the financial position of EBS Litigation, L.L.C. as of
December 31, 2002 and 2001, and the results of its operations and its cash flows
for the years ended December 31, 2002, 2001 and 2000, in conformity with
accounting principles generally accepted in the United States of America.
/s/ Rubin, Brown, Gornstein & Co., LLP
--------------------------------------------
Rubin, Brown, Gornstein & Co., LLP
March 7, 2003
11
EBS Litigation, L.L.C.
Balance Sheets
December 31, 2002 and 2001
December 31,
2002 2001
Assets
Cash and cash equivalents
Available for general operations $ 777,938 $ 1,209,813
Prepaid insurance 51,664 51,397
Interest receivable 706 2,084
----------- -----------
Total assets $ 830,308 $ 1,263,294
=========== ===========
Liabilities
Accounts payable $ 12,902 $ -
Accrued expenses 169,763 147,873
----------- -----------
Total liabilities 182,665 147,873
----------- -----------
Members' equity:
Membership Units (Class A - 10,000,000 authorized, issued and
outstanding at December 31, 2002 and 2001) - -
Retained earnings 647,643 1,115,421
----------- -----------
Total members' equity 647,643 1,115,421
----------- -----------
Total liabilities and members' equity $ 830,308 $ 1,263,294
=========== ===========
The accompanying are an integral part of these finacial statements.
12
EBS Litigation, L.L.C.
Statements of Operations
For the Years Ended December 31, 2002, 2001 and 2000
For the years ended December 31,
2002 2001 2000
Income:
Interest $ 12,901 $ 50,741 $ 98,160
Defendant payment revenue 210,626 - 3,708
----------- ----------- ----------
Total income $ 223,527 $ 50,741 $ 101,868
=========== =========== ==========
Expenses:
Legal fees $ 501,412 $ 270,100 $ 271,507
Insurance 69,869 71,233 84,685
Transfer agent and settlement
administration fees 40,013 38,000 38,000
Accounting fees 40,959 31,700 60,654
Manager fees 35,175 27,395 26,816
Other 3,877 4,067 7,100
----------- ----------- ----------
Total expenses 691,305 442,495 488,762
----------- ----------- ----------
Net loss $ (467,778) $ (391,754) $ (386,894)
=========== =========== ==========
Net loss per unit - basic and diluted $ (0.047) $ (0.039) $ (0.039)
=========== =========== ==========
The accompanying are an integral part of these finacial statements.
13
EBS Litigation, L.L.C.
Statements of Changes in Members' Equity
For the Years Ended December 31, 2002, 2001 and 2000
Class A
Membership Retained
Units Earnings Total
Balance, December 31, 1999 10,000,000 $1,894,069 $1,894,069
Net loss - (386,894) (386,894)
----------- ---------- ----------
Balance, December 31, 2000 10,000,000 1,507,175 1,507,175
Net loss - (391,754) (391,754)
----------- ---------- ----------
Balance, December 31, 2001 10,000,000 1,115,421 1,115,421
Net loss - (467,778) (467,778)
----------- ---------- ----------
Balance, December 31, 2002 10,000,000 $ 647,643 $ 647,643
=========== ========== ==========
The accompanying are an integral part of these finacial statements.
14
EBS Litigation, L.L.C.
Statements of Cash Flows
For the Years Ended December 31, 2002, 2001 and 2000
For the years ended December 31,
2002 2001 2000
Cash flows from operating activities:
Net loss $ (467,778) $ (391,754) $ (386,894)
Reconciliation of net loss to cash flows used in
operating activities:
(Increase) decrease in prepaid insurance (267) 1,233 14,685
Decrease in interest receivable 1,378 5,366 503
Decrease in miscellaneous receivables - 5,000 13,261
Increase in accounts payable 12,902 - -
Increase in accrued expenses 21,890 44,902 557
---------- ---------- ----------
Cash flows used in operating activities (431,875) (335,253) (357,888)
Net decrease in cash and cash equivalents (431,875) (335,253) (357,888)
Cash and cash equivalents at beginning of year 1,209,813 1,545,066 1,902,954
---------- ---------- ----------
Cash and cash equivalents at end of year $ 777,938 $1,209,813 $1,545,066
========== ========== ==========
The accompanying are an integral part of these finacial statements.
15
EBS Litigation, L.L.C.
Notes to Financial statements
December 31, 2002 and 2001
1. Description of Business
EBS Litigation, L.L.C. (the "Company") is governed by a Members Agreement,
dated as of September 25, 1997 (the "Members Agreement"). Pursuant to the
Members Agreement, the Company's purposes are to (a) prosecute, settle
and/or liquidate the Unresolved Avoidance Claims relating to the
distribution by Edison Brothers Stores, Inc. ("Edison") of approximately
4.4 million shares of common stock of Dave & Busters, Inc. to holders of
Edison common stock in the form of a dividend and all related transactions
(the "Unresolved Avoidance Claims"), (b) receive, and administer the cash
proceeds of the Unresolved Avoidance Claims, and (c) distribute the net
proceeds to the appropriate holders of Membership Units (the "Members") in
accordance with the Members Agreement.
Section 1.4 of the Company's Members Agreement originally limited the
Company's existence to three years, subject to extension(s) approved by the
Bankruptcy Court for good cause shown. In September 2000, the Bankruptcy
Court granted the Company's motion to extend the existence of the Company
for an additional two-year term. In September 2002, the Company filed a
motion with the Bankruptcy Court to reopen the bankruptcy case of Edison
Brothers Stores, Inc. for the limited purpose of extending the term of the
Company. The Court approved the motion at that time, extending the
existence of the company for an additional two-year term.
2. Summary of Significant Accounting Policies
This summary of significant accounting policies is presented to assist in
evaluating the Company's financial statements included in this report.
These principles conform to accounting principles generally accepted in the
United States of America. The preparation of financial statements in
conformity with accounting principles generally accepted in the United
States of America requires that management make estimates and assumptions
which impact the reported amounts of assets and liabilities at the date of
the financial statements and the reported amounts of revenues and expenses
during the reporting period. Actual results could differ from those
estimates. Adjustments are of a normal and recurring nature.
Basis of Presentation
These financial statements include the accounts of the Company for the
years ended December 31, 2000 2001, and 2002.
Cash and Cash Equivalents
Cash and cash equivalents consist of amounts held in an account in the
Company's name at a highly-rated financial institution, whose funds are
invested in an institutional money market fund investing solely in direct
obligations of the United States Government.
The Company's cash and cash equivalents represent the sum of the aggregate
Dave and Busters, Inc. Spinoff Settlement Proceeds and the L.L.C. Funding
Amount less funds used for general operations. Any amounts not used in
general operations will be made available for future distributions to Class
A Membership Unit holders.
Defendant Payment Revenue
Defendant payment revenue is determined on an accrual basis and represents
settlements with individual defendants of Avoidance Claims during the
period.
16
EBS Litigation, L.L.C.
Notes to Financial statements
December 31, 2002 and 2001
Interest
Interest income is determined on the accrual basis. Interest receivable is
due to be received within one year.
Expenses
All expenses of the Company are recorded on the accrual basis of
accounting.
Income Taxes
The Company is not subject to income taxes. Instead, the Members report
their distributive share of the Company's profits and losses on their
respective income tax returns.
3. Members' Equity
On September 25, 1997, Edison transferred its rights, title and interest in
the Unresolved Avoidance Claims. In addition, as of September 25, 1997,
Edison was obligated to provide cash funding to the Company of $2.0 million
(the "LLC Funding Amount"), which was subsequently paid to the Company on
October 16, 1997. Such transfer and funding were in exchange for 10,000,000
Class B Membership Units of the Company, which represented all of the
outstanding Membership Units of the Company. On December 12, 1997, in
accordance with the Company's Members Agreement and the Plan of
Reorganization, Edison exchanged 9,064,140 Class B Membership Units for
9,064,140 Class A Membership Units of the Company and simultaneously
distributed such Class A Membership Units to holders of Allowed General
Unsecured Claims (as defined in the Plan).
During 1998, Edison exchanged 936,138 Class B Membership Units for 936,138
Class A Membership Units of the Company and simultaneously distributed such
Class A units to holders of Allowed General Unsecured Claims.
During 1998, the Company distributed $13.7 million to holders of Class A
Membership Units. In addition, $0.8 million was retained for holders of the
Class A Membership Units that were distributed in December 1998.
Also during 1998, certain Class A Membership Unit holders returned 278
Class A Membership Units to Edison as such Membership Units had been
distributed in error. The distribution proceeds relating to these returned
Membership Units are included in retained earnings and were made available
for future distributions to holders of Class A Membership Units.
On February 1, 1999, the Company distributed the $0.8 million of reserved
amounts of D&B Spinoff Settlement Proceeds (as defined in the Plan) to the
holders of the Class A Membership Units that were distributed in November
and December 1998. This represents the entire amount of funds reserved for
future holders of Class A Membership Units.
The Company has not made any distributions to holders of Class A Membership
units since February 1, 1999.
4. Settlement Proceeds
On June 10 and July 2, 2002, the Company settled with two members of the
Class. (D&B stock is held by approximately 2,500 different individuals and
entities, collectively referred to as the "Class.") As a result of the
settlements, the Company collected $113,126 and $97,500, respectively, for
a total of $210,626.
17
EBS Litigation, L.L.C.
Notes to Financial statements
December 31, 2002 and 2001
On January 10, 2003, the Bankruptcy Court approved a settlement with
another member of the Class, Trust Company of the West and its related
entities, in the amount of $615,940. The Company received payment on
February 18, 2003. There can be no assurances that other members of the
Class will settle or what the terms of any other potential settlements may
be.
5. D&B Spinoff Litigation
In February 2003, the District Court referred the D&B Spinoff Litigation to
mediation before a magistrate judge. The mediation is scheduled to take
place on March 28, 2003. The mediation will involve all claims: the
Company's claim against the Class, the Class' third party claims against
the Third-party Defendants, as well as, the threatened indemnification
claims by the Edison Third-party Defendants against the Company pursuant to
indemnification provisions in the Debtor's Plan.
18
ITEM 9--CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
FINANCIAL DISCLOSURE
None.
PART III
ITEM 10--DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT
The Company has no directors and the Manager, Peter N. Wang, acts as the
Company's sole executive officer. Mr. Wang is 54 years old and has been a
shareholder and officer of FWB for the past 22 years. The Manager may resign at
any time or be removed by the holders (the "Requisite Holders") of 65% or more
of the outstanding Class A Membership Units (excluding such holders against whom
the Company holds Unresolved Avoidance Claims), with or without cause, at any
time, such resignation or removal to be effective upon the appointment of a
successor Manager. In the event of the death, resignation, incompetency or
removal of the Manager, the Requisite Holders may appoint a successor Manager
that is not affiliated with Edison. If such appointment does not occur within 90
days, the Manager or the Manager's representative may petition the Bankruptcy
Court for the appointment of a successor Trustee.
ITEM 11--EXECUTIVE COMPENSATION
The Members Agreement provides that FWB will receive compensation for the
Manager's services to the Company at the standard hourly rates charged for the
Manager's services and the services of other persons at FWB who may assist him
with his duties. The Company is also obligated to reimburse FWB for reasonable
expenses incurred by the Manager and others at FWB in connection with the
performance of the Manager's duties to the Company.
With respect to services rendered during the year ended December 31, 2002,
FWB was paid $1,650 on account of the Manager's services to the Company and
$33,622.50 on account of services of another attorney at FWB who assisted him
with his duties. The Company also paid FWB $210.33 in expense reimbursement.
With respect to services rendered during the year ended December 31, 2001,
FWB was paid $2,437 on account of the Manager's services to the Company and
$21,620 on account of services of another attorney at FWB who assisted him with
his duties. The Company also paid FWB $158 in expense reimbursement.
With respect to services rendered during the year ended December 31, 2000,
FWB was paid $1,395 on account of the Manager's services to the Company and
$25,163 on account of services of another attorney at FWB who assisted him with
his duties. The Company also paid FWB $283 in expense reimbursement.
With respect to services rendered during the year ended December 31, 1999,
FWB was paid $2,125 on account of the Manager's services to the Company and
$29,820 on account of services of another attorney at FWB who assisted him. The
Company also paid $90 for the services of a paralegal at FWB and $260 in expense
reimbursement.
With respect to services rendered from the Inception Date to December 31,
1997, FWB was paid $6,903 on account of the Manager's services, $20,995 on
account of the services of another attorney at FWB who assisted him, and $218 in
expense reimbursement.
19
ITEM 12--SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The following table sets forth certain information regarding the
certificated ownership of the Company's Class A Membership Units of persons
owning more than five percent of the outstanding Class A Membership Units as of
December 31, 2002.
Name and Address of Number of Class A Nature of
Certificated Owner Membership Units Certificated Ownership Percent
----------------------------------- ----------------- ---------------------- -------
Swiss Bank Corporation 1,593,601 Sole Voting/Investment 15.9%
Citibank, N.A. 836,070 Sole Voting/Investment 8.4%
Loeb Partners Corporation 1,176,937 Sole Voting/Investment 11.7%
Caspian Capital Partners, LP 698,555 Sole Voting/Investment 6.9%
Contrarian Capital Advisors, L.L.C. 740,731 Sole Voting/Investment 7.41%
Morgens Waterfall Overseas Partners 653,314 Sole Voting/Investment 6.5%
ITEM 13--CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
None.
ITEM 14--CONTROLS AND PROCEDURES
The Company maintains a set of disclosure controls and procedures designed
to ensure that information required to be disclosed by the Company in reports
that it files or submits under the Securities and Exchange Act of 1934 is
recorded, processed, summarized and reported with the time periods specified in
the Securities and Exchange Commission rules and forms. Within the 90-day period
prior to filing of this report, an evaluation was carried out under the
supervision and with the participation of the Company's management of the
effectiveness of the Company's disclosure controls and procedures. Based on that
evaluation, the Company's management has concluded that the Company's disclosure
controls and procedures are effective.
Subsequent to the date of their evaluation, there have been no significant
changes in the Company's internal controls or in other factors that could
significantly affect these controls.
PART IV
ITEM 15--EXHIBITS, FINANCIAL STATEMENT SCHEDULES AND REPORTS ON FORM 8-K.
(a) 1. The following financial statements and the report thereon of Rubin,
Brown, Gornstein & Co., LLP are included in Item 8 of this report:
Report of Independent Public Accountants
Balance Sheets as of December 31, 2002 and 2001
Statements of Operations for the Years Ended December 31, 2002,
2001 and 2000
Statements of Changes in Members' Equity for the Years Ended
December 31, 2002, 2001
and 2000
Statements of Cash Flows for the Years Ended December 31, 2002,
2001 and 2000
20
Notes to Financial Statements
2. Financial Statement Schedules:
All schedules are omitted since the required information is not
present in amounts sufficient to require submission of the schedules
or because the information required is included in the financial
statements and notes thereto.
(b) Reports on Form 8-K.
On November 14, 2002, the Company filed a current report on Form 8-K under
Item 9 (Regulation FD Disclosure) providing for the Company's Manager's
certification pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.
21
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) 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.
Dated March 28, 2003 EBS LITIGATION, L.L.C.
By: /s/ Peter N. Wang
-------------------------
Peter N. Wang
Manager
23
CERTIFICATIONS
I, Peter N. Wang, as Manager of EBS Litigation, L.L.C., hereby certify that, :
1. I have reviewed this annual report on Form 10-K of EBS Litigation, L.L.C.;
2. Based on my knowledge, this annual 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 annual report;
3. Based on my knowledge, the financial statements, and other financial
information included in this annual 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 annual report;
4. I am responsible for establishing and maintaining disclosure controls and
procedures (as defined in Exchange Act Rules 13a-14 and 15d-14) for the
registrant and 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 annual 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 annual report (the "Evaluation Date"); and
c) presented in this annual report our conclusions about the
effectiveness of the disclosure controls and procedures based on our
evaluation as of the Evaluation Date;
5. 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 functions):
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. I have indicated in this annual report whether 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: March 28, 2003
/s/ Peter N. Wang
---------------------------
Peter N. Wang, Manager
Exhibit Index
Exhibit
Number Description Location
- --------- ---------------------------------------------------------------------- ---------------
2.1* Amended Joint Plan of Reorganization of Edison Brothers Stores, Inc. Incorporated
by reference
3.1* EBS Litigation, L.L.C. Certificate of Formation Incorporated
by reference
3.2* EBS Litigation, L.L.C. Membership Agreement Incorporated
by reference
23.1 Consent of Independent Public Accountants Filed herewith
- -----------------
* Incorporated by reference to the Company's Form 10 originally filed with
the Securities and Exchange Commission on July 29, 1998 (SEC File No.
000-24711).
22