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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 000-24713
---------
EBS PENSION, L.L.C.
(Exact name of registrant as specified in its charter)
Delaware 42-1466520
(State or other jurisdiction (I.R.S. Employer
of incorporation) Identification Number)
Wells Fargo Bank Minnesota, N.A.
Sixth and Marquette: N9303-120
Minneapolis, Minnesota 55479
(Address of principal executive offices)
Registrant's telephone number, including area code 612) 667-4803
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 $1.6 million.
There were 10,000,000 Class A Membership Units outstanding as of March 15,
2003.
PART I
ITEM 1--BUSINESS
Unless otherwise noted, references to the "Company" shall mean EBS Pension,
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. (S)(S) 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 Pension,
L.L.C. Members Agreement (the "Members Agreement"). Under 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 claims, which
distribution included, among other things, the holder's pro rata share of Class
A Membership Units in the Company. The initial distribution date under the Plan
occurred on or about December 12, 1997. 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, 2002 there were 10,000,000 Class A Membership Units
and 0 Class B Membership Units of the Company issued and outstanding.
The Plan further provided for the Debtors' transfer to the Company of their
right to receive the Pension Plan Proceeds, which the Plan defines as the cash
proceeds (the "Pension Plan Proceeds") to be received by the Debtors as a result
of the termination of the Edison Brothers Stores, Inc. Pension Plan, (the
"Pension Plan"), net of (a) the Pension Plan assets transferred to a qualified
replacement pension plan; (b) all costs, fees and expenses (collectively, the
"Pension Plan Termination Costs") relating to termination of the Pension Plan
and establishment of the replacement plan; and (c) all applicable taxes
incurred, or for which a reserve (the "Pension Plan Tax Reserve") is established
by Edison, in connection with termination of the Pension Plan. The Pension Plan
assets are the residual assets from the Pension Plan. The Pension Plan was
created for the purpose of providing pension benefits to the employees of
Edison. The Pension Plan was terminated by Edison pursuant to an order of the
Bankruptcy Court. Pursuant to the Plan, upon termination of the Pension Plan,
after (1) the liabilities of the Plan were paid, (2) the required excise taxes
were paid and the Pension Plan Tax Reserve was established, (3) a replacement
pension plan for the employees of Edison was funded, and (4) the Pension Plan
Termination Costs were paid, the residual assets, i.e., the Pension Plan
Proceeds, were distributed to the Company.
Company Formation 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,
in particular the Delaware Limited Liability Company Act, Del. Code Ann. tit.6,
ch. 18 (the "Delaware Act"). The Certificate of Formation became effective,
thereby providing for the formation of the Company, on September 25, 1997 (the
"Inception Date").
Purposes
The Company is organized solely for the purposes of (a) receiving and
administering the "Company Assets," which the Members Agreement defines as all
Pension Plan Proceeds as well as any other property or proceeds acquired by the
Company and; (b) distributing the Company Assets to holders of Membership Units
2
pursuant to the terms of the Members Agreement. The Company has no objective to
engage in the conduct of any other trade or business. In essence, then, the
Company constitutes a vehicle for receiving the Pension Plan Proceeds and then
allocating and distributing all net funds 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 Official
Committee of Unsecured Creditors appointed in the Debtors' Chapter 11 Case (the
"Creditors' Committee"), is Wells Fargo Bank Minnesota, N.A. (formerly known as,
Norwest Bank Minnesota, N.A.) (in such capacity, the "Manager"). As contemplated
by the Members Agreement, the principal office of the Company is maintained at
the principal office of the Manager, which is located at Sixth and Marquette:
N9303-120, Minneapolis, Minnesota 55479, Attn: Lon P. LeClair. The telephone
number is (612) 667-4803.
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
to make continuing efforts to (1) receive the Pension Plan Proceeds, and (2)
make distributions of any Pension Plan Proceeds to the Members, 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 to the Company or to any Member for any action or inaction, except in the
case of its willful breach of a material provision of the Members Agreement or
gross negligence in connection with the performance of its 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 its duties
and responsibilities and to perform such other functions as may be appropriate
in furtherance of the intent and purposes of the Members Agreement. The Manager
has selected the law firm of Jones Day ("Jones Day") to serve as counsel to the
Company. 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. The Manager, who also serves as the Disbursing Agent under
the Plan and the Transfer Agent under the Members Agreement, maintains the
ownership registers of the Company, coordinates distributions to Members of the
Company and performs related administrative duties. Rubin, Brown, Gornstein &
Co., LLP serves as the Company's independent auditors.
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.
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 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 Assets. In connection with
the administration of the Company 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 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 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 will be 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
3
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 scheduled to terminate (unless dissolved
earlier) in September 2002. However, the Manager (with the approval of
Bankruptcy Court) extended the Company's existence until September 2004. At the
end of this period, if the Company 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 the Members in accordance with
their respective Capital Account 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.
Operations Of The Company Since Its Formation
The Pension Plan Refund
The Pension Plan was terminated as of May 31, 1997. Data provided to the
Company by Edison indicates that Edison received a cash refund of $51.41 million
on account of the Pension Plan termination. After deducting Pension Plan
Termination Costs of $1.68 million and establishing a Pension Plan Tax Reserve
of $5.7 million, on January 23, 1998, Edison remitted Pension Plan Proceeds
totaling $43,985,315.40 to the Company.
Initial Distribution to Members
The Members Agreement obligates the Manager to facilitate the prompt
distribution of Pension Plan Proceeds to holders of Class A Membership Units in
the Company. Accordingly, on February 13, 1998, the Manager, after establishing
the reserves and making the calculations discussed below, distributed the
aggregate sum of $39,427,156 to 1,337 certificated holders of record of Class A
Membership Units as of February 11, 1998. This aggregate distribution was
calculated as follows:
Total Pension Plan Proceeds Received $ 43,985,315
January Interest Earned $ 35,197
TOTAL FUNDS ON DEPOSIT (2/11/98) $ 44,020,512
less:
Reserve for Litigation Indemnification $ 1,500,000
Reserve for Administrative Expenses $ 300,000
Tax Distribution to Edison $ 959
TOTAL AMOUNT AVAILABLE FOR FIRST
DISTRIBUTION TO MEMBERS $ 42,219,553
less:
Reserve for Disputed Claims and Claims Not Yet
Eligible for Distribution $ 2,792,397
TOTAL DISTRIBUTED TO HOLDERS OF
CLASS A MEMBERSHIP UNITS ON
FEBRUARY 13, 1998 $ 39,427,156
4
The reserve for litigation indemnification (the "Indemnification Reserve")
was established in accordance with the Plan and the Members Agreement. See "Item
7. - Management's Discussion and Analysis of Financial Condition and Results of
Operations."
As of December 31, 1998, the balance in the Company's operating account was
$286,927. Following satisfaction of administrative expenses, any funds remaining
on deposit were made available for distribution to holders of Class A Membership
Units in the Company.
An additional potential component of a future distribution was the Pension
Plan Tax Reserve. In connection with the termination of the Pension Plan, Edison
sought a private letter ruling (the "Tax Ruling") from the Internal Revenue
Service ("IRS") to the effect that any income realized by Edison as a result of
the Pension Plan termination will be available to offset certain deductions
realized by the Debtors in the same taxable year. On September 28, 1998, the IRS
issued the Tax Ruling. The Company was advised that as a result of the Tax
Ruling, there are no additional taxes to be paid by Edison in connection with
termination of the Pension Plan.
On March 9, 1999, Edison filed a voluntary petition for relief under the
provisions of Chapter 11 of the Bankruptcy Code in the United States Bankruptcy
Court for the District of Delaware. In its petition, Edison listed the Company
among its largest unsecured creditors with a claim totaling approximately $5.7
million. The claim stems from Edison's retention of the Pension Plan Tax
Reserve.
A meeting of Edison's largest creditors convened on Friday, March 19, 1999
at the office of the United States Trustee for the District of Delaware (the
"United States Trustee"). At this meeting, the United States Trustee appointed
representatives of creditors to the Official Creditors' Committee (the "1999
Committee"). The Company was not appointed to the Committee.
On April 23, 1999, the Company filed a complaint (the "Complaint") against
Edison seeking a declaration that Edison is holding the Pension Plan Tax Reserve
in constructive trust for the Company and it is not part of Edison's bankruptcy.
On June 16, 1999, the Company filed a motion for summary judgment with respect
to the Complaint. Edison filed a cross motion for summary judgement on July 30,
1999. A hearing (the "Hearing") on the Company's summary judgment motion was
held on December 7, 1999 in the United States Bankruptcy Court for the District
of Delaware. At the Hearing, the Bankruptcy judge denied both summary judgement
motions citing the existence of genuine issues of material fact, but, in so
holding, determined that Edison was holding the Pension Plan Tax Reserve in
constructive trust for the Company. After the Hearing, the Company and Edison
made several attempts to resolve this matter without the need for trial, but
were unsuccessful in these efforts.
In August 1999, the Company received returned distributions totaling
approximately $225,000 (as of December 2000, that amount has increased to
approximately $262,000 due to more returned distributions). Pursuant to the
Company's Members' Agreement, for the past 18 months, the Manager has made
attempts to distribute these funds to the respective members. Currently, the
funds are being held by the Company, available for the respective members to
claim. Any unclaimed funds will eventually escheat to the state in which they
were disbursed according to that state's statutory period for unclaimed
property.
As of December 31, 1999, the balance in the Company's operating account was
$144,200. Following satisfaction of administrative expenses, any funds remaining
on deposit were made available for distribution to holders of Class A Membership
Units in the Company. In addition, any remaining balance of the $1.5 million
Indemnification Reserve, if any, ultimately would be available for such
distribution.
On or about April 28, 2000, the Debtors filed a Motion for an Order
Directing the Appointment of a Chapter 11 Trustee Pursuant to Section 1104 of
the Bankruptcy Code. The Bankruptcy court conducted a hearing on this motion on
May 16, 2000 and then entered an Order approving it shortly thereafter. On May
30, 2000, the United States trustee for the District of Delaware applied for an
order appointing Alan M. Jacobs (the "Trustee") as Chapter 11 Trustee in the
Debtors' chapter 11 cases. The Bankruptcy Court granted the application on the
same day. Thereafter, on June 16, 2000, the Chapter 11 Trustee filed a Motion to
Convert Case to Chapter 7 Pursuant to Sections 1112 (a) and (b) of the
Bankruptcy Code, which motion was approved by order of the Bankruptcy Court
dated July 5, 2000.
5
In September 2000, the Company filed a motion with the United States
Bankruptcy Court, District of Delaware to reopen the bankruptcy case of Edison
Brothers Stores, Inc. 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 originally
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 October 17, 2000, the Debtors and the Company stipulated to a schedule
pursuant to which they would each submit to the Bankruptcy Court a motion for
entry of judgment with respect to the Complaint (the "Scheduling Stipulation").
The Scheduling Stipulation also provided that each party would be permitted to
submit an answer brief and a subsequent reply brief. Further, under the
Scheduling Stipulation, the parties waived their right to request an oral
argument on their respective motions for judgment.
As of December 31, 2000, the balance in the Company's operating account was
$145,277. Following satisfaction of administrative expenses any funds remaining
on deposits were made available for distribution to holders of Class A
Membership Units in the Company. In addition, any remaining balance of the $1.5
million Indemnification Reserve, if any, ultimately would be available for such
distribution.
On October 11, 2001 the Court concluded that the Company could not
establish a nexus between the alleged trust and the assets sought by the
Company.
As of December 31, 2001, the balance in the Company's operating account was
$136,847. Following satisfaction of administrative expenses, any funds remaining
on deposit will be made available for distribution to holders of Class A
Membership Units in the Company. In addition, any remaining balance of the $1.5
million Indemnification Reserve, if any, ultimately would be available for such
distribution.
On February 21, 2002, the parties executed a settlement agreement (the
"Settlement Agreement"), that was approved by the Court on March 14, 2002.
Pursuant to the Settlement Agreement, Edison agreed to distribute to the Company
cash equal to thirty-four percent (34%) of its pre-petition claim of $5,740,000,
which equals $1,951,600, payable within three days after the order becomes
final. The Settlement Agreement further provides that additional distributions
will be made to the Company at such time, if ever, as the distributions to all
holders of allowed general unsecured claims against the Debtors exceed
twenty-one percent (21%) of their allowed claims. Thereafter, the Company will
receive on account of its remaining claim, distributions equal to the Company's
pro rata share (based upon its remaining claim of $3,788,400) of all
distributions over twenty-one percent (21%), on a pro rata basis with all
general unsecured claims.
On May 29, 2002, the Trustee filed a Motion in the Bankruptcy Court for an
Order Approving, among other things, the sale of shares of Principal Financial
Group, Inc. Stock (the "Principal Stock"), free and clear of all liens, claims
and encumbrances (the "Motion"). On June 11, 2002, the Company filed a limited
objection (the "Limited Objection") to the Motion. In the Limited Objection, the
Company sought to preserve its rights, if any, with respect to the Principal
Stock or the proceeds thereof. On June 18, 2002, the Court granted the Motion as
provided in the Order subject to the Company's Limited Objection. In addition,
the Court indicated that the proceeds of the sale of the Principal Stock were to
be held by the Trustee in a segregated account subject to further order of the
Court and the Company's right to assert an interest in said proceeds.
On May 31, 2002, the Company distributed $1.5 million from the proceeds
received from the Settlement Agreement mentioned above to holders of the Class A
Membership Units.
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.
6
On November 14, 2002, the Trustee filed a motion (the "9019 Motion")
pursuant to Rule 9019 of the Federal Rules of Bankruptcy Procedure in the
Bankruptcy Court requesting that the court approve a settlement and release
agreement (the "Principal Stock Settlement Agreement") by and between the
Trustee and the Company. The Principal Stock Settlement Agreement, contemplates
that in exchange for mutual releases between the Trustee, on behalf of the
Debtors, and the Company with regard to the Principal Stock, the Trustee, on
behalf of the Debtors, will distribute thirty percent of the net cash proceeds
from the sale of the Principal Stock to the Company. The Principal Stock
Settlement Agreement also contemplates the Company paying its pro rata share of
any taxes, if any, assessed in connection with the sale of the Principal Stock.
An objection to the 9019 motion was timely filed by Mr. Bernard Edison. The
Bankruptcy Court heard the motion, the objection and the evidence on January 8,
2003. Based upon the evidence presented, the Bankruptcy Court granted the
Trustee's 9019 Motion and approved the Settlement Agreement in full. Mr. Edison
appealed (the "Appeal") the Bankruptcy Court's order approving the Settlement
Agreement on January 31, 2003, and thereafter filed a Statement of Issue on
February 27, 2003. On March 18, 2003, the Trustee filed a motion (the "Second
9019 Motion") pursuant to Rule 9019 of the Federal Rules of Bankruptcy Procedure
in the Bankruptcy Court requesting that the court approve a settlement and
release agreement (the "Second Principal Stock Settlement Agreement") by and
between the Trustee and Mr. Edison. The Second Principal Stock Settlement
Agreement contemplates that in exchange for a) mutual releases between the
Trustee, on behalf of the Debtors, and Mr. Edison and b) the withdrawal by Mr.
Edison of the Appeal, the Trustee will pay Mr. Edison $40,000. The Bankruptcy
Court is scheduled to hear the Second 9019 Motion on April 9, 2003. There can be
no assurance of the amount (if any) the Company would receive if the Principal
Stock Settlement Agreement is ultimately approved by the Bankruptcy Court.
As of December 31, 2002, the balance in the Company's operating account was
$476,669. Following satisfaction of administrative expenses, any funds remaining
on deposit will be made available for distribution to holders of Class A
Membership Units in the Company. In addition, any remaining balance of the $1.5
million Indemnification Reserve, if any, ultimately would be available for such
distribution.
ITEM 2--PROPERTIES
The Company does not own or lease any property.
ITEM 3--LEGAL PROCEEDINGS
Other than the proceedings described in Item 1 of 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.
7
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 2,047 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 table sets forth selected financial information 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 since the Inception
Date. The selected financial data 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 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:
Interest income 30,000 67,172 103,917 80,314 321,488 0
General and administrative 209,380 144,429 212,141 219,450 256,064 51,910
expenses
Net income (loss) 1,772,220 (77,257) (108,224) (139,136) 65,424 (51,910)
Distribution per Class A 0.15/(3)/ 0 0 0 4.23/(2)/ 0
Membership Unit
Balance Sheet Data (at
period end):
Cash 2,013,708 1,898,904 1,907,334 1,869,218 1,786,927 0
Interest receivable 1,810 3,278 9,202 7,436 14,313 0
Due from Edison 0 0 0 0 0 43,985,315
Total assets 2,015,654 1,902,182 1,916,536 1,876,654 1,801,240 43,985,315
Distribution payable 37,039 262,057 262,057 225,018 0 0
Accrued expenses 391,396 283,736 220,833 109,766 120,234 51,910
Members' equity 1,587,219 1,356,389 1,433,646 1,541,870 1,681,006 43,933,405
________________
/(1)/ The Company's inception date was September 25, 1997.
/(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 February 1998, the Company
distributed $39.4 million of the initial proceeds received from Edison
to the holders of the 9,338,601 Class A Membership Units that were
outstanding at the date of distribution. During June 1998, the Company
distributed $0.6 million of reserved amounts to the holders of the
128,337 Class A Membership Units that were distributed in June 1998.
During November and December 1998, Edison exchanged a total of 533,062
Class B Membership Units for 533,062 Class A Membership Units of the
Company and simultaneously distributed such Class A Membership Units to
holders of Allowed General Unsecured Claims that had not previously
received Class A Membership Units. On December 31, 1998, the Company
distributed $2.3 million of reserved amounts to holders of the Class A
Membership Units of record that were distributed in exchange for Class B
Membership Units in November and December 1998.
/(3)/ As mentioned in Item 1, on May 31, 2002, the Company distributed 1.5
million to holders of Class A Membership Units.
8
ITEM 7--DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS
The following is a discussion and analysis of the financial condition and
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. The following 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 business. The
Company was organized for the exclusive purposes of (a) receiving and
administering the Company Assets, and (b) distributing the Company Assets to
holders of the Company's Class A Membership Units pursuant to the terms of the
Members Agreement.
On January 23, 1998, the Company received from Edison the Pension Plan
Proceeds totaling approximately $44.0 million. The Company recognizes income
from interest earned on its funds. The Company invests such funds 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 and certificates of deposit with U.S. federal or state commercial
banks having primary capital of not less than $500 million. During the year
ended December 31, 2002, the Company recognized $30,000 of interest income.
During the year ended December 31, 2001, the Company recognized $67,172 of
interest income. During the year ended December 31, 2000, the Company recognized
$103,917 of interest income. During the year ended December 31, 1999, the
Company recognized $80,314 of interest income. During the year ended December
31, 1998, the Company recognized $321,488 of interest income. During the period
ended December 31, 1997, the Company did not recognize any interest income
because it did not receive the Pension Plan Proceeds until January 1998. The
amount of interest income recognized by the Company in future periods will be
dependent on, among other things, (1) fluctuations in interest rates, (2) the
amounts and timing of any amounts received in the future from the Pension Plan
Tax Reserve (described below), (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 general and administrative expenses consist primarily of fees
payable to the Transfer Agent, the Manager, and the Company's lawyers,
accountants and auditors. The Company had expenses of $209,380, $144,429,
$212,141, $219,450, $256,064 and $51,910 for the years ended December 31, 2002,
2001, 2000, 1999 and 1998 and for the period ended December 31, 1997,
respectively. These expenses are expected to fluctuate in future periods
primarily based on the volume of any future disbursements on account of Class A
Membership Units and any actions the Company takes in attempting to obtain the
pension plan tax reserve from Edison.
The Company and EBS Litigation, L.L.C. (another limited liability company
formed pursuant to the Plan) have agreed to 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 EBS Litigation,
L.L.C. (other than with respect to any Unresolved Avoidance Claims (as defined
in the Plan) that EBS Litigation, L.L.C. may have against such persons other
than in their capacities as officers, directors or employees of the Debtors.
Pursuant to the Plan, the Company established the Litigation Reserve ($1.5
million) from the Pension Plan Proceeds for the benefit of these indemnified
persons, to pay their costs and expenses incurred in defending the LLC Related
Claims (as defined in the Plan). Payment of such cost and expenses must first be
sought from any applicable officers' and directors' insurance policy and then
from the Indemnification Reserve. The Company's indemnification liability is
limited to the amount of the Litigation Reserve, i.e. an aggregate of $1.5
million. Although to date there has not been any indemnification claim,
9
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 Assets.
At December 31, 2002, the Company had cash and cash equivalents of
approximately $2.0 million. At December 31, 2001, 2000 and 1999, the Company had
cash and cash equivalents of approximately $1.9 million. At December 31, 1998,
the Company had cash and cash equivalents of approximately $1.8 million, after
approximately $42.3 million was distributed to holders of Class A Membership
Units in 1998. At December 31, 1997, the Company had no cash or cash
equivalents. When determining the amount and timing of distributions, the
Manager considered, among other things, (1) the terms of the Members Agreement
governing distributions, and (2) the anticipated amount of necessary reserves
and future administrative expenses. The amount and timing of any future
distributions of Pension Plan 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 any 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 Pension, L.L.C.
St. Louis, Missouri
We have audited the accompanying balance sheets of EBS Pension, L.L.C., a
Delaware 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 present fairly, in
all material respects, the financial position of EBS Pension, 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 Pension, 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:
Litigation income $ 1,951,600 $ - $ -
Interest 30,000 67,172 103,917
------------ ------------ ------------
Total income $ 1,981,600 $ 67,172 $ 103,917
============ ============ ============
Expenses:
Manager fees $ 50,000 $ 50,004 $ 50,141
Transfer agent and administration fees 50,431 38,400 48,000
Accounting fees 45,854 30,000 46,002
Legal fees 59,183 23,666 63,798
Other 3,912 2,359 4,200
------------ ------------ ------------
Total expenses 209,380 144,429 212,141
------------ ------------ ------------
Net income (loss) $ 1,772,220 $ (77,257) $ (108,224)
============ ============ ============
Net income (loss) per membership unit - basic
and diluted $ 0.177 $ (0.008) $ (0.011)
============ ============ ============
The accompanying notes are an integral part of these financial statements.
12
EBS Pension, L.L.C.
Balance Sheets
December 31, 2002 and 2001
--------------------------
December 31,
2002 2001
Assets
Cash and cash equivalents
Available for general operations $ 476,669 $ 136,847
Returned member distributions 37,039 262,057
Available for anticipated cost of legal
indemnification of officers 1,500,000 1,500,000
Interest receivable 1,810 3,278
Prepaid expenses 136 -
-------------- -------------
Total assets $ 2,015,654 $ 1,902,182
============== =============
Liabilities
Distribution payable $ 37,039 $ 262,057
Accrued expenses 391,396 283,736
-------------- -------------
Total liabilities 428,435 545,793
-------------- -------------
Members' equity:
Membership Units (Class A - 10,000,000 authorized,
issued and outstanding at December 31, 2002 and 2001) - -
Paid-in capital 1,667,492 1,667,492
Retained deficit (80,273) (311,103)
-------------- -------------
Total members' equity 1,587,219 1,356,389
-------------- -------------
Total liabilities and members' equity $ 2,015,654 $ 1,902,182
============== =============
The accompanying notes are an integral part of these financial statements.
13
EBS Pension, L.L.C.
Statement of Changes in Members' Equity
For the Years Ended December 31, 2002, 2001 and 2000
----------------------------------------------------
Class A Class B
Membership Membership Paid-in Retained
Units Units Capital Earnings Total
Balance, December 31, 1999 10,000,000 $ - $ 1,667,492 $ (125,622) $ 1,541,870
Net loss - - - (108,224) (108,224)
------------ ---------- ------------ ------------ ------------
Balance, December 31, 2000 10,000,000 - 1,667,492 (233,846) 1,433,646
Net loss - - - (77,257) (77,257)
------------ ---------- ------------ ------------ ------------
Balance, December 31, 2001 10,000,000 - 1,667,492 (311,103) 1,356,389
Net income - - - 1,772,220 1,772,220
Capital distributions - - - (1,541,390) (1,541,390)
------------ ---------- ------------ ------------ ------------
Balance, December 31, 2002 10,000,000 $ - $ 1,667,492 $ (80,273) $ 1,587,219
============ ========== ============ =========== ============
The accompanying notes are an integral part of these financial statements.
14
EBS Pension, 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 income (loss) $ 1,772,220 $ (77,257) $ (108,224)
Reconciliation of net income (loss) to cash flows
provided by (used in) operating activities:
Increase in prepaid expenses (136) - -
Decrease (increase) in interest receivable 1,468 5,924 (1,766)
Increase in accrued expenses 107,660 62,903 111,067
----------- ----------- -----------
Cash flows provided by (used in) operating activities 1,881,212 (8,430) 1,077
----------- ----------- -----------
Cash flows provided by financing activities:
Capital distributions (1,541,390) - -
Escheatment payments (225,018) - -
Proceeds from canceled checks - - 37,039
----------- ----------- -----------
Cash flows (used in) provided by financing activities (1,766,408) - 37,039
----------- ----------- -----------
Net increase (decrease) in cash and cash equivalents 114,804 (8,430) 38,116
Cash and cash equivalents at beginning of year 1,898,904 1,907,334 1,869,218
----------- ----------- -----------
Cash and cash equivalents at end of period $ 2,013,708 $ 1,898,904 $ 1,907,334
=========== =========== ===========
The accompanying notes are an integral part of these financial statements.
15
EBS Pension, L.L.C.
Notes to Financial Statements
December 31, 2002 and 2001
1. Description of Business
EBS Pension, 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 is organized for the
exclusive purposes of (a) receiving and administering the cash
proceeds (the "Pension Plan Proceeds") to be received by Edison
Brothers Stores, Inc. ("Edison") and its affiliated debtors in
possession (collectively with Edison, the "Debtors") as a result of
the termination of the Edison Brothers Stores, Inc. Pension Plan (the
"Pension Plan"), net of (i) the Pension Plan assets transferred to
qualified replacement pension plans, (ii) all costs, fees and expenses
relating to termination of the Pension Plan and establishment of the
replacement plans, and (iii) all applicable taxes incurred or for
which a reserve is established in connection with termination of the
Pension Plan, and (b) distributing such assets to holders of Class A
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.
Following satisfaction of administrative expenses, any funds remaining
on deposit will be made available for distribution to holders of Class
A Membership Units in the Company. In addition, any remaining balance
of the $1.5 million Indemnification Reserve, if any, ultimately would
be available for such distribution.
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 that 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, along with
U.S. Treasury Securities purchased and held in the Company's name.
The Company's cash and cash equivalents, excluding the $37,039 of
returned member distributions, plus any portion of Pension Plan Tax
Reserve that may ultimately be received by the Company, will be used
for general operations and for the anticipated cost of legal
indemnification of the officers of Edison as contemplated by the
Members' Agreement and collecting the Pension Plan Tax Reserve from
Edison. Any amounts not used for these purposes will be made available
for future distributions to Class A Membership Unit holders.
16
EBS Pension, L.L.C.
Notes to Financial Statements
December 31, 2002 and 2001
Accrued Expenses
Accrued expenses include amounts for unpaid legal, tax, accounting,
manager and transfer agent fees. Amounts are payable within one year.
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 taxes. Instead, the Members report their
distributive share of the Company's profits and losses on their
respective income tax returns.
3. Distribution Payable
In August 1999, $225,018 of proceeds distributed to Members in
February 1998 were returned, as the checks issued did not clear the
bank. In June 2000, $37,039 of proceeds distributed to Members in
February 1998 were returned, as the checks issued did not clear the
bank. In October 2002, the $225,018 of proceeds returned in August
1999 were remitted to the applicable states' unclaimed property funds
in the form of escheatment payments. The remaining $37,039 is held by
the Company and is available for the respective members to claim.
These funds will eventually escheat to the state in which they were
distributed according to that state's statutory period for unclaimed
property.
4. Members' Equity
On September 25, 1997, Edison transferred the right to receive the net
cash proceeds from the termination of the Pension Plan in exchange for
10,000,000 Class B Membership Units of the Company, which represented
all of the outstanding Membership Units of the Company. The Net
Pension Plan Proceeds (as defined by the plan) amounted to $43.9
million at December 31, 1997 and were due from Edison at that date.
Pursuant to the Plan, an additional amount of $5.7 million (the
"Pension Plan Tax Reserve") is being held by Edison to satisfy certain
fees and tax liabilities of Edison. The Plan of Reorganization further
provided that upon receipt of a private letter ruling (the "Tax
Ruling") from the Internal Revenue Service (the "IRS") indicating that
no tax liability existed necessitating release of funds from the
Pension Plan Tax Reserve, that Edison should remit such funds to the
Company. On September 28, 1998, the IRS issued the Tax Ruling. See
Note 6 hereof for further discussion of the Pension Plan Tax Reserve.
On December 12, 1997, in accordance with the Members Agreement and the
Plan of Reorganization, Edison exchanged 9,058,041 Class B Membership
Units for 9,058,041 Class A Membership Units of the Company and
simultaneously distributed such Class A Membership Units to holders of
Allowed General Unsecured Claims.
During 1998, Edison paid $43.9 million to the Company in satisfaction
of the Company's receivable recorded at December 31, 1997. Of this
amount, $42.3 million was distributed to Class A Members during 1998,
$1.5 million is retained for the anticipated cost of legal
indemnification of the officers of Edison, and the remaining amount is
retained for other anticipated expenses expected to be incurred by the
Company.
17
EBS Pension, L.L.C.
Notes to Financial Statements
December 31, 2002 and 2001
During 1998, Edison exchanged 942,238 Class B Membership Units for
942,238 Class A Membership Units of the Company and simultaneously
distributed such units to holders of Allowed General Unsecured Claims.
Also during 1998, certain Class A Membership Unit holders returned 279
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 paid in capital and were
available for future distributions to holders of Class A Membership
Units. Currently Edison has no Class B Membership Units.
Through December 2001, a total of $262,057 of proceeds distributed to
Members in February 1998 were returned, as the checks issued were not
claimed. In October 2002, $225,018 of these proceeds were remitted to
the applicable states' unclaimed property funds in the form of
escheatment payments. The remaining funds held by the Company are
available for the respective members to claim. See Note 3 above for
further discussion.
On February 21, 2002, the parties executed a settlement agreement (the
"Settlement Agreement"), that was approved by the Court in March 14,
2002. Pursuant to the Settlement Agreement, Edison agreed to
distribute to the Company cash equal to thirty-four percent (34%)
Agreement, of its pre-petition claim of $5,740,000, which equals
$1,951,600, payable within three days after the order became final.
The Settlement Agreement further provides that additional
distributions will be made to the Company at such time, if ever, as
the distributions to all holders of allowed general unsecured claims
against the Debtors exceed twenty-one percent (21%) of their allowed
claims. Thereafter, the Company will receive on account of its
remaining claim, distributions equal to the Company's pro rata share
(based upon its remaining claim of $3,788,400) of all distributions
over twenty-one percent (21%) on a pro rata basis with all general
unsecured claims.
On April 17, 2002, the Company received the settlement cash of
$1,951,600, or thirty-four percent (34%), of its pre-petition claim.
On May 31, 2002, the Company distributed $1,541,390 to holders of
Class A Membership Units.
5. Related Parties
The Manager of the Company is the same financial institution that
holds the Company's cash and cash equivalents.
6. Commitments and Contingencies
On March 9, 1999, Edison filed for protection under Chapter 11 of the
Bankruptcy Code (the "Petition Date"). Prior to the Petition Date,
Edison had not yet released the Pension Plan Tax Reserve to the
Company. Therefore, Edison's Chapter 11 filing may have a materially
adverse impact on the collectibility of the Pension Plan Tax Reserve
discussed in the first paragraph of Note 4 above. The Company has
continued to pursue the receipt of these proceeds; however no
determination as to the amount, if any, to be received has been made
at this time, except for the $1,951,600 discussed in Note 4.
On April 23, 1999, the Company filed a complaint (the "Complaint")
against Edison seeking a declaration that Edison is holding the
Pension Plan Tax Reserve in constructive trust for the Company and it
is not part of Edison's bankruptcy. On June 16, 1999, the Company
filed a motion for summary judgment with respect to the Complaint.
Edison filed a cross motion for summary judgement on July 30, 1999. A
hearing (the "Hearing") on the Company's summary judgment motion was
held on December 7, 1999 in the United States Bankruptcy Court for the
District of Delaware (the "Bankruptcy Court"). At the Hearing, the
Bankruptcy judge denied both summary judgement motions citing the
existence of genuine issues of material fact, but, in so holding,
determined that Edison was holding the Pension Plan Tax Reserve in
constructive trust
18
EBS Pension, L.L.C.
Notes to Financial Statements
December 31, 2002 and 2001
for the Company. After the Hearing, the Company and Edison made
several attempts to resolve this matter without the need for trial,
but were unsuccessful in these efforts. Both Edison and the Company
have submitted pleadings in support of entry of judgment in favor of
their respective positions.
On or about April 28, 2000, the Debtors filed a Motion for an Order
Directing the Appointment of a Chapter 11 Trustee Pursuant to Section
1104 of the Bankruptcy Code. The Bankruptcy Court conducted a hearing
on this motion on May 16, 2000 and then entered an Order approving it
shortly thereafter. On May 30, 2000, the United States trustee for the
District of Delaware applied for an order appointing a Chapter 11
Trustee in the Debtors' Chapter 11 cases. Bankruptcy Court granted the
application on the same day. Thereafter, on June 16, 2000, the Chapter
11 Trustee filed a Motion to Convert Case to Chapter 7 Pursuant to
Sections 1112(a) and (b) of the Bankruptcy Code, which motion was
approved by order of the Bankruptcy Court dated July 5, 2000.
On October 17, 2000, the Debtors and the Company stipulated to a
schedule pursuant to which they would each submit to the Bankruptcy
Court a motion for entry of judgment with respect to the Complaint
(the "Scheduling Stipulation"). The Scheduling Stipulation also
provided that each party would be permitted to submit an answer brief
and a subsequent reply brief. Further, under the Scheduling
Stipulation, the parties waived their right to request an oral
argument on their respective motions for judgment. The parties have
filed and served the appropriate pleadings in accordance with the
Scheduling Stipulation. On October 11, 2001, the Court concluded that
the Company could not establish a nexus between the alleged trust and
the assets sought by the Company.
On February 21, 2002, the parties executed a settlement agreement (the
"Settlement Agreement"), that was approved by the Court in March 14,
2002. Pursuant to the Settlement Agreement, Edison agreed to
distribute to the Company cash equal to thirty-four percent (34%)
Agreement, of its pre-petition claim of $5,740,000, which equals
$1,951,600, payable within three days after the order became final.
The Settlement Agreement further provides that additional
distributions will be made to the Company at such time, if ever, as
the distributions to all holders of allowed general unsecured claims
against the Debtors exceed twenty-one percent (21%) of their allowed
claims. Thereafter, the Company will receive on account of its
remaining claim, distributions equal to the Company's pro rata share
(based upon its remaining claim of $3,788,400) of all distributions
over twenty-one percent (21%) on a pro rata basis with all general
unsecured claims.
On May 29, 2002, the Chapter 7 Trustee of Edison Brothers Stores, Inc.
(the "Trustee") filed a Motion in the Bankruptcy Court for an Order
Approving, among other things, the sale of shares of Principal
Financial Group, Inc. Stock (the "Principal Stock"), free and clear of
all liens, claims and encumbrances (the "Motion"). On June 11, 2002,
the Company filed a limited objection (the "Limited Objection") to the
Motion. In the Limited Objection, the Company sought to preserve its
rights, if any, with respect to the Principal Stock or the proceeds
thereof. On June 18, 2002, the Court granted the Motion as provided in
the Order subject to the Company's Limited Objection. The Court
indicated that the proceeds of the sale of the Principal Stock were to
be held by the Trustee in a segregated account subject to further
order of the Court and the Company's right to assert an interest in
said proceeds.
On November 14, 2002, Alan M. Jacobs (the "Trustee"), Chapter 7
Trustee in the Edison Brothers Stores, Inc. et. al. bankruptcy
proceedings, filed a motion (the "9019 motion") pursuant to Rule 9019
of the Federal Rules of Bankruptcy Procedure in the United States
Bankruptcy Court for the District of Delaware (the "Bankruptcy Court")
requesting that the court approve a settlement and release agreement
(the "Settlement Agreement") by and between the Trustee and EBS
Pension. An objection to the 9019 motion was timely filed by Mr.
Bernard Edison. The Bankruptcy Court held a hearing on January 8, 2003
to consider the motion, the objection and the evidence. Based upon the
evidence presented, the Bankruptcy Court granted the 9019 Motion and
19
EBS Pension, L.L.C.
Notes to Financial Statements
December 31, 2002 and 2001
approved the Settlement Agreement in full. Mr. Edison appealed (the
"Appeal") the Bankruptcy Court's order approving the Settlement
Agreement on January 31, 2003 and thereafter filed a Statement of
Issue on February 27, 2003. On March 18, 2003, the Trustee filed a
motion (the "Second 9019 Motion") pursuant to Rule 9019 of the Federal
Rules of Bankruptcy Procedure in the Bankruptcy Court requesting that
the court approve a settlement and release agreement (the "Second
Principal Stock Settlement Agreement") by and between the Trustee and
Mr. Edison. The Second Principal Stock Settlement Agreement
contemplates that in exchange for a) mutual releases between the
Trustee, on behalf of the Debtors, and Mr. Edison and b) the
withdrawal by Mr. Edison of the Appeal, the Trustee will pay Mr.
Edison $40,000. The Bankruptcy Court is scheduled to hear the Second
9019 Motion on April 9, 2003. There can be no assurance of the amount
(if any) the Company would receive if the Principal Stock Settlement
Agreement is ultimately approved by the Bankruptcy Court.
20
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, Wells Fargo Bank Minnesota,
N.A., acts as the Company's sole executive officer. The Manager may resign at
any time or be removed by the Designation Members (defined below), 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 resignation or removal
of the Manager, the Designation Members may appoint a successor Manager that is
not affiliated with Edison. If such appointment does not occur within 90 days,
the Manager may petition the Bankruptcy Court for the appointment of a successor
Trustee. The "Designation Members" means the three Members who, at the
applicable date for any action to be taken by Designation Members, constitute
the holders of record of the three largest amounts of Class A Membership Units
provided that (1) affiliated persons are treated as a single person for these
purposes; (2) no affiliate of Edison may be a Designation Member; and (3) any
person may notify the Company that it does not wish to be a Designation Member.
See Item 1 -- Business "Administration and Manager" for further discussion.
ITEM 11--EXECUTIVE COMPENSATION
The Manager is to receive reasonable compensation for services rendered to
and on behalf of the Company, as well as reimbursement for the reasonable
expenses incurred in connection with the performance of its duties under the
Members Agreement. With respect to services rendered during the year ended
December 31, 2002, the Company accrued expenses of approximately $50,000 for
services rendered by, and reimbursements due to, the Manager.
With respect to services rendered during the year ended December 31, 2001,
2000 and 1999, the Company accrued expenses of approximately $50,000 for
services rendered by, and reimbursements due to, the Manager. With respect to
services rendered during the year ended December 31, 1998, the Company paid
approximately $64,000 for services rendered by, and reimbursements due to, the
Manager. With respect to services rendered from the Inception Date to December
31, 1997, the Company did not accrue for such services rendered by the Manager,
as this amount was not yet determined.
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. The Manager of the Company owns 115 Class A Membership Units.
Number of Class A Nature of Certificated
----------------- ----------------------
Name and Address of Certificated Owner Membership Units Ownership Percent
- -------------------------------------- ---------------- --------- -------
Swiss Bank Corporation 1,603,998 Sole Voting/Investment 16.0%
Citibank, N.A. 841,524 Sole Voting/Investment 8.4%
Loeb Partners Corporation 1,184,616 Sole Voting/Investment 11.8%
Caspian Capital Partners, LP 701,156 Sole Voting Investment 7.0%
Contrarian Capital Advisors, L.L.C. 746,758 Sole Voting/Investment 7.47%
Morgens Waterfall Overseas Partners 657,578 Sole Voting/Investment 6.6%
21
ITEM 13--CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
The Manager of the Company is the same financial institution that holds the
Company's cash and cash equivalents.
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
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.
22
(c) Exhibits
Exhibit
Number Description
------- ----------------------------------------------------------------
2.1* Amended Joint Plan of Reorganization of Edison Brothers Stores,
Inc.
3.1* EBS Pension, L.L.C. Certificate of Formation
3.2* EBS Pension, L.L.C. Membership Agreement
23.1 Consent of Independent Public Accountants
_______________
* Incorporated by reference to the Company's Form 10 originally filed
with the Securities and Exchange Commission on July 29, 1998 (SEC File
No.000-24713).
23
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 PENSION, L.L.C.
(Registrant)
By: WELLS FARGO BANK MINNESOTA, N.A., in its
capacity as Manager of EBS Pension, L.L.C.
By: /s/ Lon P. LeClair
----------------------
Lon P. LeClair
Vice President
24
CERTIFICATIONS
On behalf of Wells Fargo Bank Minnesota, N.A., Manager of EBS Pension, L.L.C, I,
as Vice President of Wells Fargo Bank Minnesota, N.A., hereby certify that,:
1. I have reviewed this annual report on Form 10-K of EBS Pension, 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/ Lon P. LeClair
---------------------------------
Lon P. LeClair, Vice President
Wells Fargo Bank Minnesota, N.A.
Exhibit Index
Exhibit
Number Description Location
--------- ---------------------------------------------------------------------- -----------------
2.1* Amended Joint Plan of Reorganization of Edison Brothers Stores, Inc. Incorporated by
reference
3.1* EBS Pension, L.L.C. Certificate of Formation Incorporated by
reference
3.2* EBS Pension, 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. 000-24713)
26