Back to GetFilings.com
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended March 31, 2003
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE 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 of (I.R.S. Employer
incorporation or organization) Identification Number)
Sixth and Marquette; N9303-120
Minneapolis, Minnesota 55479
(Address of principal executive offices)
(612) 667-4803
(Registrant's telephone number, including area code)
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 [ ]
At May 1, 2003 there were 10,000,000 Class A Membership Units outstanding and no
Class B Membership Units outstanding.
PART I. FINANCIAL INFORMATION
Item 1. Financial Statements
EBS PENSION, L.L.C.
Statements of Operations
For the Three Month Periods
Ended March 31, 2003 and 2002
2003 2002
----------- -----------
(unaudited) (unaudited)
Income
Interest $ 3,889 $ 6,523
-------- --------
Total Income $ 3,889 $ 6,523
======== ========
Expenses
Manager fees $ 12,500 $ 12,330
Transfer agent and administration fees 9,500 9,600
Accounting fees 5,375 3,000
Legal fees 1,814 8,000
Insurance fees 51 --
Other -- 1,400
-------- --------
Total expenses 29,240 34,330
Net income (loss) $(25,351) $(27,807)
======== ========
Net income (loss) per membership unit - basic and diluted $ (0.003) $ (0.003)
======== ========
The accompanying notes are an integral part of these financial statements.
2
EBS PENSION, L.L.C.
Balance Sheets
March 31, 2003 and December 31, 2002
2003 2002
----------- -----------
(unaudited)
Assets
Cash and cash equivalents
Available for general operations $ 468,480 $ 476,669
Returned member distributions 36,780 37,039
Available for anticipated cost of legal indemnification
of officers 1,500,000 1,500,000
Interest receivable 1,270 1,810
Prepaid expenses 85 136
----------- -----------
Total assets $ 2,006,615 $ 2,015,654
=========== ===========
Liabilities
Accounts payable $ 4,500 $ --
Distribution payable 36,780 37,039
Accrued expenses 403,467 391,396
----------- -----------
Total liabilities 444,747 428,435
----------- -----------
Members' equity
Membership Units (Class A - 10,000,000 authorized, issued and
outstanding at March 31, 2003 and December 31, 2002) -- --
Paid-in capital 1,667,492 1,667,492
Retained deficit (105,624) (80,273)
----------- -----------
Total members' equity 1,561,868 1,587,219
----------- -----------
Total liabilities and members' equity $ 2,006,615 $ 2,015,654
=========== ===========
The accompanying notes are an integral part of these financial statements.
3
EBS PENSION, L.L.C.
Statements of Changes in Members' Equity
For the Periods Ended
March 31, 2003 and December 31, 2002
Class A
Membership Paid in Retained
Units Capital Deficit Total
---------- ---------- ----------- -----------
Balance, January 1, 2002 10,000,000 $1,667,492 $ (311,103) $ 1,356,389
Net income -- -- 1,772,220 1,772,220
Capital distribution -- -- (1,541,390) (1,541,390)
---------- ---------- ----------- -----------
Balance, December 31, 2002 10,000,000 1,667,492 (80,273) 1,587,219
Net loss (unaudited) -- -- (25,351) (25,351)
---------- ---------- ----------- -----------
Balance, March 31,2003 (unaudited) 10,000,000 $1,667,492 $ (105,624) $ 1,561,868
========== ========== =========== ===========
The accompanying notes are an integral part of these financial statements.
4
EBS PENSION, L.L.C.
Statements of Cash Flows
For the Three Months Ended March 31, 2003 and 2002
2003 2002
----------- -----------
(unaudited) (unaudited)
Cash flows from operating activities:
Net loss $ (25,351) $ (27,807)
Reconciliation of net loss to cash flows used in operating
activities:
Decrease in prepaid expenses 51 --
Decrease in interest receivable 540 1,036
Increase in accounts payable 4,500 --
Increase in accrued expenses 12,071 10,806
---------- ----------
Cash flows used in operating activities (8,189) (15,965)
---------- ----------
Cash flows (used in) provided by financing activities:
Escheatment payments (259) --
---------- ----------
Cash flows used in financing activities (259) --
Net increase (decrease) in cash and cash equivalents (8,448) (15,965)
Cash and cash equivalents at beginning of period 2,013,708 1,898,904
---------- ----------
Cash and cash equivalents at end of period $2,005,260 $1,882,939
========== ==========
The accompanying notes are an integral part of these financial statements.
5
EBS PENSION, L.L.C.
Notes to Financial Statements
March 31, 2003 and December 31, 2002
- --------------------------------------------------------------------------------
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
periods from January 1, 2002 through December 31, 2002, January 1, 2002
through March 31, 2002 (unaudited), and January 1, 2003 through March 31,
2003 (unaudited).
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 $36,780 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.
Accrued Expenses
Accrued expenses include amounts for unpaid legal, tax, accounting,
manager, and transfer agent fees. Amounts are payable within one year.
6
EBS PENSION, L.L.C.
Notes to Financial Statements
March 31, 2003 and December 31, 2002
- --------------------------------------------------------------------------------
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 $36,780 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.
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.
7
EBS PENSION, L.L.C.
Notes to Financial Statements
March 31, 2003 and December 31, 2002
- --------------------------------------------------------------------------------
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%) 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.
The Company received $839,861.31 in connection with the Principal Stock
Settlement Agreement (discussed in Note 6 below).
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 judgement 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 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 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.
8
EBS PENSION, L.L.C.
Notes to Financial Statements
March 31, 2003 and December 31, 2002
- --------------------------------------------------------------------------------
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 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 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 Pension Plan's 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. Mr.
Bernard Edison filed an objection to the 9019 motion. 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 approved the
Second 9019 Motion on April 9, 2003. On April 30, 2003, the Company
received a check from the Trustee in the amount of $839,861.31 for
settlement and release between the Trustee and the Company with regard to
the Principal Stock Settlement Agreement.
The Company and EBS Litigation, L.L.C. ("EBS Litigation") (another limited
liability company formed pursuant to the Plan) were served on March 28,
2003, with a Fourth-Party Complaint brought by the Third-Party Defendants,
David B. Cooper, Jr., Julian I. Edison, Peter A. Edison, Jane Evans, Alan
A. Sachs, Craig D. Schnuck, and Martin Sneider (collectively, the "Edison
Directors") in the matter of EBS Litigation, L.L.C. v. Barclays Global
Investors, N.A., et al. C.A. No. 98-547 SLR (Dist. Del) (the "Litigation").
Briefly, the Litigation initially brought by EBS Litigation alleged that
the Third-Party Plaintiffs are liable for the return of D&B stock received
by them as a distribution from Edison in 1995. The Third-Party Plaintiffs
subsequently brought a Third-Party claim in the Litigation alleging that if
the Third-Party Plaintiffs were found liable, then the Edison Directors are
liable to the Third-Party Plaintiffs for all or a part of the recovery. The
Fourth-Party Complaint brought by the Edison Directors alleges that if the
Edison Directors are found liable in the Third-Party claim, then pursuant
to Section 5.1(f) of the Plan establishing the Indemnification Reserve
(defined in Item 2 below), the Company and EBS Litigation are liable
9
EBS PENSION, L.L.C.
Notes to Financial Statements
March 31, 2003 and December 31, 2002
- --------------------------------------------------------------------------------
to the Edison Directors for all costs and expenses the Edison Directors
have incurred or will incur in connection with the Edison Directors'
defense of the Third-Party claim and with the prosecution of their
Fourth-Party Complaint.
On May 2, 2003, EBS Litigation filed an answer to the Fourth Party
Complaint on behalf of itself and the Company, as codefendants, denying the
allegations of the Fourth Party Complaint. There can be no assurance as to
the outcome of this Fourth Party Complaint, or the liability of the
Company, if any.
10
Item 2. MANAGEMENT'S 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 periods ended December 31,
1997, January 1, 2002 through March 31, 2002 (unaudited), January 1, 2003
through March 31, 2003 (unaudited), 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 and included in the Company's Annual
Report and Form 10-K for the year ended December 31, 2002. This discussion
contains certain forward-looking statements that 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/Overview
The Company, which was formed pursuant to the Amended Joint Plan of
Reorganization Under Chapter 11 of the U.S. Bankruptcy Code filed by the Debtors
(the "Plan") and the Members Agreement, is a limited purpose entity which 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, Pension Plan
Proceeds totaling approximately $43.9 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 years
ended December 31, 2002, 2001, 2000, 1999 and 1998, the Company recognized
$30,000, $67,172, $80,314 and $321,488 of interest income, respectively. 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.
During the three month periods ended March 31, 2003 and 2002, the Company
recognized $3,889 and $6,523 of interest income, respectively. 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,
(3) the amount and timing of distributions, if any, 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 Manager, the Registar, Transfer Agent and Paying Agent, 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. During the three month periods ended March 31, 2003 and
2002, the Company had expenses of $29,240 and $34,330, 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 defending claims in connection with the Fourth
Party Complaint (discussed below).
The Company and EBS Litigation 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 (other than with respect to any Unresolved Avoidance Claims (as
defined in the Plan) that EBS Litigation 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 Indemnification 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 Indemnification Reserve, i.e. an aggregate of $1.5
million. As discussed below, there has been a claim filed seeking recovery from
the Indemnification Reserve. There can be no assurance of the merits of such
claim or the amount, if any, that the Edison Directors (defined below) will be
able to recover. There can be no assurance that additional claims will not be
made in the future. All liabilities of the Company, including the foregoing
indemnification obligations, will be satisfied from the Company Assets.
11
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. At March 31, 2003, the Company had cash and cash equivalents of
approximately $2.0 million, including the unclaimed funds discussed in Note 3 to
the financial statements. 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.
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.
12
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.
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 approved the Second 9019 Motion on April 9, 2003. On April
30, 2003, the Company received a check from the Trustee in the amount of
$839,861.31 for settlement and release between the Trustee and the Company with
regard to the Principal Stock Settlement Agreement.
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.
The Company and EBS Litigation were served on March 28, 2003, with a
Fourth Party Complaint brought by the Third-Party Defendants, David B. Cooper,
Jr., Julian I. Edison, Peter A. Edison, Jane Evans, Alan A. Sachs, Craig D.
Schnuck, and Martin Sneider (collectively, the "Edison Directors") in the matter
of EBS Litigation, L.L.C. v. Barclays Global Investors, N.A., et al. C.A. No.
98-547 SLR (Dist. Del) (the "Litigation"). Briefly, the Litigation brought by
EBS Litigation alleged that the Third Party Plaintiffs were liable for the
return of D&B stock received by them as a distribution from Edison in 1995. The
Third-Party Plaintiffs subsequently brought a Third-Party claim in the
Litigation alleging that if the Third-Party Plaintiffs were found liable then
the Edison Directors are liable to the Third-Party Plaintiffs for all or a part
of the recovery. The Fourth Party Complaint brought by the Edison Directors
alleges that if the Edison Directors are found liable in the Third Party claim,
then pursuant to Section 5.1(f) of the Plan establishing the Indemnification
Reserve, the Company and EBS Litigation are liable to the Edison Directors for
all costs and expenses the Edison Directors have incurred or will incur in
connection with the Edison Director's defense of the Third Party claim and with
the prosecution of their Fourth Party Complaint.
Prior to the Litigation being filed, in February 2003, the District
Court hearing the Litigation referred the matter to mediation before a
magistrate judge. The mediation began on March 28, 2003. The mediation involves
all claims involved in the Litigation, as well as, the Fourth Party Complaint
indemnification claims brought by the Edison Directors against the Company and
EBS Litigation. The mediation is expected to be continued at a mediation
conference on May 14, 2003. The can be no assurances as to the outcome any of
the claims as a result of the mediation, or the liability of the Company, if
any.
13
On May 2, 2003, EBS Litigation filed an answer to the Fourth Party
Complaint on behalf of itself and the Company, as codefendants, denying the
allegations of the Fourth Party Complaint. There can be no assurance as to the
outcome of this Fourth Party Complaint, or the liability of the Company, if any.
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.
Quarterly Comparison
Three Months ended March 31, 2003 Compared to Three Months Ended March 31, 2002
Total income for the three months ended March 31, 2003, was $3,889
compared to $6,523 for the three months ended March 31, 2002. This decrease is
due to the decrease in interest income earned on cash and cash in equivalents.
Total expenses decreased $5,090 due primarily to the decrease in legal
fees.
Item 4. 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.
14
PART II. OTHER INFORMATION
Item 1. Legal Proceedings.
Other than the matters discussed in Part I, Item 2 of this Quarterly
Report, the Company is not involved in any legal proceedings.
Item 6. Exhibits and Reports on Form 8-K.
(a) Exhibits 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
* Incorporated by reference to the same numbered exhibit filed with the
Registrant's Registration Statement on Form 10 originally filed with the
SEC on July 29, 1998 (SEC File No. 000-24713).
(b) Reports on Form 8-K
On March 14, 2003, 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.
15
Signatures
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
EBS PENSION, L.L.C.
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
Date: May 15, 2003
16
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 quarterly report on Form 10-Q of EBS Pension, L.L.C.;
2. Based on my knowledge, this quarterly report does not contain any untrue
statement of a material fact or omit to state a material fact necessary to
make the statements made, in light of the circumstances under which such
statements were made, not misleading with respect to the period covered by
this quarterly report;
3. Based on my knowledge, the financial statements, and other financial
information included in this quarterly report, fairly present in all
material respects the financial condition, results of operations and cash
flows of the registrant as of, and for, the periods presented in this
quarterly report;
4. 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 quarterly
report is being prepared;
b) evaluated the effectiveness of the registrant's disclosure controls
and procedures as of a date within 90 days prior to the filing date of
this quarterly report (the "Evaluation Date"); and
c) presented in this quarterly report our conclusions about the
effectiveness of the disclosure controls and procedures based on our
evaluation as of the Evaluation Date;
5. 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 quarterly 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: May 15, 2003
/s/ Lon P. LeClair
---------------------------------------
Lon P. LeClair, Vice President
Wells Fargo Bank Minnesota, N.A.