================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): January 30, 2001
GUEST SUPPLY, INC.
(Exact name of Registrant as specified in its Charter)
NEW JERSEY 1-11955 22-2320483
(State or other Jurisdiction) (Commission (IRS Employer
of Incorporation) File Number) Identification No.)
4301 U.S. Highway One
Monmouth Junction, New Jersey
(Address of principal executive offices)
Registrant's telephone number, including area code: (609) 514-9696
================================================================================
Item 5. Other Events.
- ------ ------------
Description Of Capital Stock
Guest Supply, Inc.'s (the "Company") authorized capital stock consists of
20,000,000 shares of common stock, without par value ("Common Stock"), and
1,000,000 shares of preferred stock, without par value ("Preferred Stock"), of
which 40,000 shares are designated Series A Preferred Stock. As of January 26,
2001, 6,844,825 shares of Common Stock were issued and outstanding and no shares
of Preferred Stock were issued and outstanding. The following statements are
brief summaries of certain provisions with respect to the Company's capital
stock and contained in its Amended and Restated Certificate of Incorporation, as
amended, and its By-laws, as amended (the "Certificate of Incorporation"), both
of which are incorporated by reference herein. The following summary is
qualified in its entirety by reference thereto.
Common Stock
The holders of Common Stock are entitled to one vote on all matters
submitted to a vote of shareholders. The Common Stock does not have cumulative
voting rights. Holders of Common Stock have no conversion, redemption or
preemptive rights. All outstanding shares of Common Stock are validly issued,
fully paid and non-assessable. In the event of any liquidation, dissolution or
winding-up of the affairs of the Company, the holders of Common Stock will be
entitled to share ratably in its assets remaining after provision for payment of
creditors and after the liquidation preference of any Series A Preferred Stock
or other Preferred Stock outstanding at the time. Subject to the rights of the
holders of the Series A Preferred Stock and of the holders of any other
Preferred Stock which may be issued from time to time, the holders of Common
Stock are entitled to receive dividends when and if declared by the Board of
Directors out of funds legally available for that purpose.
Preferred Stock
The Preferred Stock may be issued in one or more series, the terms of which
may be determined at the time of issuance by the Board of Directors, without
further action by shareholders, and may include voting rights (including the
right to vote as a series on particular matters), preferences as to dividends
and liquidation, conversion and redemption rights and sinking fund provisions.
There are currently 40,000 shares of Series A Preferred Stock designated and no
shares of Series A Preferred Stock are issued and outstanding. The issuance of
any shares of Preferred Stock could affect the rights of the holders of Common
Stock, and therefore reduce the value of Common Stock.
Charter And Bylaw Provisions
Classified Board of Directors. Pursuant to the Company's Certificate of
Incorporation, the Board of Directors is divided into three classes of
directors. Directors within each class are elected to serve three-year terms and
approximately one-third of the directors stand for election at each annual
meeting of shareholders. A classified board of directors may have the effect of
deterring or delaying any attempt by any group to obtain control of the Company
by a proxy contest since such group would be required to have its nominees
elected at two separate meetings of the board of directors in order to elect a
majority of the members of the board.
These provisions could prevent a shareholder or a group of shareholders
having majority voting power from obtaining control of the Board of Directors
until the second annual meeting following the date the shareholder obtains
majority voting power. These provisions could have the effect of discouraging a
potential acquirer from making a tender offer or otherwise attempting to obtain
control of the Company.
Advance Notice Provisions. Shareholders seeking to nominate candidates to
be elected as directors at an annual meeting or to bring business before an
annual meeting must comply with an advance written procedure. Only persons who
are nominated by or at the direction of the board, or by a shareholder who has
given timely written notice to our Secretary before the meeting to elect
directors, will be eligible for election as directors. At any shareholders'
meeting the business to be conducted is limited to business brought before the
meeting by or at the direction of the Board of Directors, or a shareholder who
has given timely written notice to our Secretary of its intention to bring
business before an annual meeting. A shareholder must give notice which is
received at the Company's principal executive offices in writing not less than
60 days nor more than 90 days prior to the date of the anniversary of the
previous year's annual meeting. In the case of a special meeting of shareholders
called for the purpose of electing directors, a shareholder must give notice to
nominate a director not later than the close of business on the tenth day
following the day notice of the special meeting was mailed to shareholders or
public disclosure of the date of the meeting was first made by the Company. A
shareholder's notice must also contain certain information specified in the
bylaws. These provisions may preclude or deter some stockholders from bringing
matters before, or making nominations for directors at, an annual meeting. The
Certificate of Incorporation and By-laws of the Company provide that a majority
of the outstanding shares entitled to vote at a meeting shall constitute a
quorum, except as otherwise required by law.
Amendment of Charter and Bylaw Provisions. Amendments to the Certificate of
Incorporation require board approval and the affirmative vote of a majority of
the outstanding shares entitled to vote, except that amendments of certain anti-
takeover provisions require the affirmative vote of the holders of not less than
80% of the outstanding shares entitled to vote. The By-laws may be altered,
amended or repealed or new By-laws may be adopted by the board or the
shareholders, except that the amendment of certain anti-takeover provisions
requires the affirmative vote of not less than 80% of the outstanding shares
entitled to vote.
Anti-Takeover Provision. New Jersey law restricts the ability of certain
persons to acquire control of a New Jersey corporation. In general, a New Jersey
corporation may not engage in a business combination with an interested
shareholder for a period of five years following the interested shareholder's
becoming such. An interested shareholder is generally a shareholder owning at
least 10% of the voting power of a corporation's outstanding shares. A New
Jersey corporation may opt out of the New Jersey anti-takeover provisions and
make the anti-takeover provisions of New Jersey law inapplicable to the business
combination and related transactions. The Company's Certificate of Incorporation
provides that certain transactions, including a merger, significant asset sales
and certain issuances or transfers of securities of the Company, require the
affirmative vote of the holders of not less than 80% of the outstanding shares
of entitled to vote, unless the Board of Directors expressly approved in advance
the acquisition of outstanding shares of voting stock of the Company that
resulted in any related person (as defined) becoming a related person or
expressly approved the business combination prior to the related person involved
in the business combination having become a related person.
The Company's Certificate of Incorporation also provides that certain
affiliated transactions with a related person of the Company require, in
addition to any vote required by law or in the Company's Certificate of
Incorporation or by-laws, approval by a majority of continuing directors.
Transfer Agent and Registrar.
The Transfer Agent and Registrar for the Company's Common Stock is Mellon
Investor Services, LLC.
Series A Preferred Stock/Rights Agreement.
On July 14, 1988, the Board of Directors of the Company declared a dividend
of one preferred share purchase right (individually, a "Right" and,
collectively, the "Rights") for each outstanding share of Common Stock of the
Company. The dividend was payable on July 26, 1988 (the "Record Date") to the
shareholders of record on that date and for each share of Common Stock issued
between the Record Date and the Distribution Date (defined herein) or earlier
redemption or expiration of Rights. Each Right entitles the registered holder to
purchase from the Company one one-hundredth of a share of Series A Preferred
Stock (individually, a "Preferred Share" and, collectively, the "Preferred
Shares") of the Company at a price of $30.00 per one one-hundredth of a
Preferred Share (the "Purchase Price"), subject to adjustment. The description
and terms of the Rights are set forth in a Rights Agreement, as amended by
Amendment No. 1 dated August 15, 1997 and Amendment No. 2 dated January 22, 2001
(the "Rights Agreement") between the Company and Mellon Investor Services, LLC
(formerly Chase Mellon Shareholder Services, L.L.C.), as Rights Agent (the
"Rights Agent").
Until the earlier to occur of (i) 10 days following a public announcement
that a person or group of affiliated or associated persons (an "Acquiring
Person") have acquired beneficial ownership of 20% or more of the outstanding
Common Stock or (ii) 10 days (or such later date as may be determined by action
of the Board of Directors prior to such time as any person becomes an Acquiring
Person) following the commencement of, or announcement of an intention to make,
a tender offer or exchange offer the consummation of which would result in the
beneficial ownership by a person or group of 20% or more of such outstanding
Common Stock (the earlier of such dates being called the "Distribution Date"),
the Rights will be evidenced, with respect to any of the Common Stock
certificates outstanding as of the Record Date, by such Common Stock certificate
with a copy of a "Summary of Rights" document attached thereto.
The Rights Agreement provides that, until the Distribution Date, the Rights
will be transferred with and only with the Common Stock. Until the Distribution
Date (or earlier redemption or expiration of the Rights), new Common Stock
certificates issued after the Record Date, upon transfer or new issuance of
Common Stock will contain a notation incorporating the Rights Agreement by
reference. Until the Distribution Date (or earlier redemption or expiration of
the Rights), the surrender for transfer of any certificates for Common Stock,
outstanding as of the Record Date, even without such notation or a copy of the
Summary of Rights being attached thereto, will also constitute the transfer of
the Rights associated with the Common Stock represented by such certificate. As
soon as practicable following the Distribution Date, separate
certificates evidencing the Rights ("Rights Certificates") will be mailed to
holders of record of the Common Stock as of the close of business on the
Distribution Date and such separate Rights Certificates alone will evidence the
Rights.
The Rights are not exercisable until the Distribution Date. The Rights will
expire on July 15, 2008 (the "Final Expiration Date"), unless the Final
Expiration Date is extended or unless the Rights are earlier redeemed by the
Company, in each case, as described below.
The Purchase Price payable, and the number of Preferred Shares or other
securities or property issuable, upon exercise of the Rights are subject to
adjustment from time to time to prevent dilution (i) in the event of a stock
dividend on, or a subdivision, combination or reclassification of, the Preferred
Shares, (ii) upon the grant to holders of the Preferred Shares of certain rights
or warrants to subscribe for or purchase Preferred Shares at a price, or
securities convertible into Preferred Shares with a conversion price, less than
the then current market price of the Preferred Shares, or (iii) upon the
distribution to holders of the Preferred Shares of evidences of indebtedness or
assets (excluding regular periodic cash dividends paid out of earnings or
retained earnings or dividends payable in Preferred Shares) or of subscription
rights or warrants (other than those referred to above).
The number of outstanding Rights and the number of one one-hundredths of a
Preferred Share issuable upon exercise of each Right are also subject to
adjustment in the event of a stock split of the Common Stock or a stock dividend
on the Common Stock payable in Common Stock or subdivisions, consolidations or
combinations of the Common Stock occurring, in any such case, prior to the
Distribution Date.
Preferred Shares purchasable upon exercise of the Rights will not be
redeemable. Each Preferred Share will be entitled to a minimum preferential
quarterly dividend payment of $1.00 per share but will be entitled to an
aggregate dividend of 100 times the dividend declared per share of Common Stock.
In the event of liquidation, the holders of the Preferred Shares will be
entitled to a minimum preferential liquidation payment of $100 per share but
will be entitled to an aggregate payment of 100 times the payment made per share
of Common Stock. Each Preferred Share will have 100 votes, voting together with
the Common Stock. Finally, in the event of any merger, consolidation or other
transaction in which Common Stock is exchanged, each Preferred Share will be
entitled to receive 100 times the amount received per share of Common Stock.
These rights are protected by customary antidilution provisions.
Because of the nature of the Preferred Shares' dividend, liquidation and
voting rights, the value of the one one-hundredth interest in a Preferred Share
purchasable upon exercise of each Right should approximate the value of one
share of Common Stock.
In the event that the Company is acquired in a merger or other business
combination transaction or 50% or more of its consolidated assets or earning
power are sold, proper provision will be made so that each holder of a Right
will thereafter have the right to receive, upon the exercise thereof at the then
current exercise price of the Right, that number of shares of common stock of
the acquiring company which at the time of such transaction will have a market
value of two times the exercise price of the Right. In the event that any person
becomes an Acquiring Person, proper provision shall be made so that each holder
of a Right, other than Rights
beneficially owned by the Acquiring Person (which will thereafter be void), will
thereafter have the right to receive upon exercise that number of shares of
Common Stock having a market value of two times the exercise price of the Right.
At any time after the acquisition by a person or group of affiliated or
associated persons of beneficial ownership of 20% or more of the outstanding
Common Stock, the Board of Directors of the Company may exchange the Rights
(other than Rights owned by such person or group which have become void), in
whole or in part, at an exchange ratio of one share of Common Stock, or one
one-hundredth of a Preferred Share (or of a share of a class or series of the
Company's preferred stock having equivalent rights, preferences and privileges),
per Right (subject to adjustment). The Board of Directors is not empowered to
effect such exchange at any time after any Acquiring Person (other than the
Company, any subsidiary of the Company, any employee benefit plan of the Company
or any such subsidiary, or any entity holding Common Stock for or pursuant to
the terms of any such plan) becomes the beneficial owner of 50% or more of the
outstanding Common Stock.
With certain exceptions, no adjustment in the Purchase Price will be
required until cumulative adjustments require an adjustment of at least 1% in
such Purchase Price. No fractional Preferred Shares will be issued (other than
fractions which are integral multiples of one one-hundredth of a Preferred
Share, which may, at the election of the Company, be evidenced by depositary
receipts) and in lieu thereof, an adjustment in cash will be made based on the
market price of the Preferred Shares on the last trading day prior to the date
of exercise.
At any time prior to such time any acquiring person or group of affiliated
or associated persons acquires the beneficial ownership of 20% or more of the
outstanding Common Stock, the Board of Directors of the Company may redeem, at
its option, the Rights in whole, but not in part, at a price of $.01 per Right
(the "Redemption Price"). The redemption of the Rights may be made effective at
such time on such basis and with such conditions as the Board of Directors in
its sole discretion may establish. Immediately upon the action of the Board of
Directors of the Company ordering the redemption of the Rights, and without any
further action and without notice, the right to exercise the Rights will
terminate and the only right thereafter to the holders of the Rights will be to
receive the Redemption Price. The Company shall promptly give public notice of
any such redemption; provided, however, that failure to give or any defect in,
any such notice shall not affect the validity of such redemption, the right to
exercise the Rights will terminate and the only right of the holders of Rights
will be to receive the Redemption Price.
The terms of the Rights may be amended by the Board of Directors of the
Company without the consent of the holders of the Rights, including an amendment
to lower the threshold for exercisability of the Rights from 20% to not less
than the greater of (i) any percentage greater than the largest percentage of
the outstanding Common Stock then known to the Company to be beneficially owned
by any person or group of affiliated or associated persons and (ii) 10%, except
that from and after such time as any person becomes an Acquiring Person no such
amendment may adversely affect the interests of the holders of the Rights.
Until a Right is exercised, the holder thereof, as such, will have no
rights as a shareholder of the Company, including, without limitation, the right
to vote or to receive dividends.
A copy of the Rights Agreement is available free of charge from the
Company. This summary description of the Rights does not purport to be complete
and is qualified in its entirety by reference to the Rights Agreement, which is
hereby incorporated herein by reference.
The Rights have certain anti-takeover effects. The Rights will cause
substantial dilution to a person or group that attempts to acquire the Company
on terms not approved by the Company's Board of Directors, except pursuant to an
offer conditioned on a substantial number of Rights being acquired. The Rights
should not interfere with any merger or other business combination approved by
the Board of Directors since the Rights may be redeemed by the Company at $.01
per Right prior to the twentieth day after the time that a person or group has
acquired beneficial ownership of 20% or more.
On January 22, 2001, the Company entered into a Merger Agreement and Plan
of Reorganization under Section 368(a) of the Internal Revenue Code of 1986, as
amended (the "Merger Agreement"), with Sysco Corporation, a Delaware
corporation, and Sysco Food Services of New Jersey, Inc., a Delaware corporation
and wholly-owned subsidiary of Sysco. The Rights Agreement was amended in order
to render the Rights Agreement inapplicable to the transactions contemplated by
the Merger Agreement.
Item 7. Financial Statements, Pro Forma Financial Information and Exhibits
- ------ ------------------------------------------------------------------
(c) Exhibits.
--------
No. Description
- --- -----------
2(a) Agreement and Plan of Merger, dated as of January 22, 2001, by and
among Guest Supply, Inc., Sysco Corporation and Sysco Food Services
of New Jersey, Inc. (incorporated herein by reference to Guest
Supply's Current Report on Form 8-K, dated January 24, 2001 and to
the Exchange Offer).
3(a) Amended and Restated Certificate of Incorporation of the Company
(incorporated herein by reference to Exhibit 3 to the Company's
Quarterly Report on Form 10-Q for the quarter ended March 31,
1996).
3(b) Certificate of Amendment of the Amended and Restated Certificate of
Incorporation of the Company (incorporated herein by reference to
Exhibit 3 to the Company's Quarterly Report on Form 10-Q for the
quarter ended March 31, 1996).
3(c) Certificate of Amendment of the Amended and Restated Certificate of
Incorporation of the Company (incorporated herein by reference to
Exhibit 3 to the Company's Quarterly Report on Form 10-Q for the
quarter ended March 31, 1996).
3(d) Certificate of Amendment of the Amended and Restated Certificate of
Incorporation of the Company (incorporated herein by reference to
Exhibit 3 to the Company's Quarterly Report on Form 10-Q for the
quarter ended March 31, 1996).
3(e) Amended and Restated By-Laws of the Company (incorporated herein by
reference to Exhibit 3(g) to the Company's Annual Report on
Form 10-K for the year ended September 30, 1997).
4(a) Rights Agreement dated as of July 15, 1988 between the Company and
First Fidelity Bank (incorporated herein by reference to Exhibit
4(e) to the Company's Annual Report on Form 10-K for the year ended
September 30, 1993, File No. 000-12567).
4(b) Amendment No. 1 dated as of August 15, 1998 by and among the
Company, First Fidelity Bank and ChaseMellon Shareholder Services,
L.L.C. to the Rights Agreement (incorporated herein by reference to
Exhibit 4.1 to the Company's Current Report on Form 8-K dated
September 8, 1998).
4(c) Amendment No. 2, dated as of January 22, 2001, by and between Guest
Supply, Inc. and Mellon Investor Services, LLC (formerly,
ChaseMellon Shareholder Services, L.L.C.) to the Rights Agreement
(incorporated herein by reference to Guest Supply's Current Report
on Form 8-K, dated January 24, 2001).
SIGNATURE
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 hereunto duly authorized.
GUEST SUPPLY, INC.
Date: January 30, 2001
By: /s/ Clifford W. Stanley
-------------------------------
Name: Clifford W. Stanley
Title: President and
Chief Executive Officer
EXHIBIT INDEX
No. Description
- --- -----------
2(a) Agreement and Plan of Merger, dated as of January 22, 2001, by
and among Guest Supply, Inc., Sysco Corporation and Sysco Food
Services of New Jersey, Inc. (incorporated herein by reference
to Guest Supply's Current Report on Form 8-K, dated January
24, 2001 and to the Exchange Offer).
3(a) Amended and Restated Certificate of Incorporation of the
Company (incorporated herein by reference to Exhibit 3 to the
Company's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1996).
3(b) Certificate of Amendment of the Amended and Restated
Certificate of Incorporation of the Company (incorporated
herein by reference to Exhibit 3 to the Company's Quarterly
Report on Form 10-Q for the quarter ended March 31, 1996).
3(c) Certificate of Amendment of the Amended and Restated
Certificate of Incorporation of the Company (incorporated
herein by reference to Exhibit 3 to the Company's Quarterly
Report on Form 10-Q for the quarter ended March 31, 1996).
3(d) Certificate of Amendment of the Amended and Restated
Certificate of Incorporation of the Company (incorporated
herein by reference to Exhibit 3 to the Company's Quarterly
Report on Form 10-Q for the quarter ended March 31, 1996).
3(e) Amended and Restated By-Laws of the Company (incorporated
herein by reference to Exhibit 3(g) to the Company's Annual
Report on Form 10-K for the year ended September 30, 1997).
4(a) Rights Agreement dated as of July 15, 1988 between the Company
and First Fidelity Bank (incorporated herein by reference to
Exhibit 4(e) to the Company's Annual Report on Form 10-K for
the year ended September 30, 1993, File No. 000-12567).
4(b) Amendment No. 1 dated as of August 15, 1998 by and among the
Company, First Fidelity Bank and ChaseMellon Shareholder
Services, L.L.C. to the Rights
Agreement (incorporated herein by reference to Exhibit 4.1 to
the Company's Current Report on Form 8-K dated September 8,
1998).
4(c) Amendment No. 2, dated as of January 22, 2001, by and between
Guest Supply, Inc. and Mellon Investor Services, LLC
(formerly, ChaseMellon Shareholder Services, L.L.C.) to the
Rights Agreement (incorporated herein by reference to Guest
Supply's Current Report on Form 8-K, dated January 24, 2001).