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 June 30, 2000
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
Commission file number 000-24711
EBS LITIGATION, L.L.C.
(Exact name of registrant as specified in its charter)
Delaware 13-3989964
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
90 Park Avenue
New York, New York 10016
(Address of principal executive offices)
(212) 682-7474
(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 August 1, 2000 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 LITIGATION, L.L.C.
Statement of Income
for the Three and Six Month Periods
Ended June 30, 2000 and 1999
----------------------------
For the three months For the six months
ended June 30, ended June 30,
2000 1999 2000 1999
(unaudited) (unaudited) (unaudited) (unaudited)
Income:
Defendant payment revenue $ 1,359 $ - $ 1,359 $ -
Interest 25,066 22,217 49,327 47,014
-------- -------- --------- --------
Total income $ 26,425 $ 22,217 $ 50,686 $ 47,014
======== ======== ========= ========
Expenses:
Legal and accounting fees $ 82,440 $ 3,344 $ 120,806 $ 5,344
Insurance 22,438 22,438 44,630 44,630
Manager fees 5,538 2,864 12,229 18,830
Other 4,500 - 5,000 100
Transfer agent and
settlement administration fees 3,000 28,000 15,000 38,000
-------- -------- --------- --------
Total expenses 117,916 56,646 197,665 106,904
-------- -------- --------- --------
Net loss $(91,491) $(34,429) $(146,979) $(59,890)
======== ======== ========= ========
The accompanying notes are an integral part of these financial statements.
2
EBS LITIGATION, L.L.C.
Balance Sheet
June 30, 2000 and December 31, 1999
-----------------------------------
June 30, 2000 December 31,
(unaudited) 1999
Assets
Cash and cash equivalents
Available for general operations $1,791,144 $1,902,954
Prepaid insurance 22,685 67,315
Interest receivable 8,478 7,953
Miscellaneous receivable - 18,261
---------- ----------
Total assets $1,822,307 $1,996,483
========== ==========
Liabilities
Accrued expenses $ 75,217 $ 102,414
---------- ----------
Total liabilities 75,217 102,414
---------- ----------
Members' equity:
Membership Units (Class A - 10,000,000 authorized, issued and
outstanding at June 30, 2000 and December 31, 1999, Class B -
0 authorized, issued and outstanding at June 30, 2000 and
December 31, 1999)
Retained earnings 1,747,090 1,894,069
---------- ----------
Total members' equity 1,747,090 1,894,069
---------- ----------
Total liabilities and members' equity $1,822,307 $1,996,483
========== ==========
The accompanying notes are an integral part of these financial statements.
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EBS LITIGATION, L.L.C.
Statement of Changes in Member's Equity
For the Six Months Ended June 30, 2000 and
For the Year Ended December 31, 1999
------------------------------------
Class A Class B
Membership Membership Retained
Units Units Earnings Total
Balance, January 1, 1999 10,000,000 - $2,888,122 $2,888,122
Capital distribution - - (787,722) (787,722)
Current year loss - - (206,331) (206,331)
---------- ---------- ---------- ----------
Balance, December 31, 1999 10,000,000 - 1,894,069 1,894,069
Current period loss (unaudited) - - (146,979) (146,979)
---------- ---------- ---------- ----------
Balance, June 30, 2000
(unaudited) 10,000,000 - $1,747,090 $1,747,090
========== ========== ========== ==========
The accompanying notes are an integral part of these financial statements.
4
EBS LITIGATION, L.L.C.
Statement of Cash Flows
For the Six Months Ended June 30, 2000 and 1999
For the six months ended
June 30,
2000 1999
(unaudited) (unaudited)
Cash flows from operating activities:
Net loss $ (146,979) $ (59,890)
Reconciliation of net loss to cash flows provided by
operating activities:
Decrease in prepaid insurance 44,630 44,630
Decrease in miscellaneous receivables 18,261 -
(Increase) decrease in interest receivable (525) 3,997
Decrease in accrued expenses (27,197) (73,008)
---------- ----------
Cash flows used in operating activities (111,810) (84,271)
---------- ----------
Cash flows from financing activities:
Capital distribution, net - (787,722)
---------- ----------
Cash flows used in financing activities - (787,722)
---------- ----------
(111,810) (871,993)
Net decrease in cash and cash equivalents
1,902,954 2,972,040
Cash and cash equivalents at beginning of period ---------- ----------
Cash and cash equivalents at end of period $1,791,144 $2,100,047
========== ==========
The accompanying notes are an integral part of these financial statements.
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EBS LITIGATION, L.L.C.
Notes to Financial Statements
June 30, 2000 and December 31, 1999
- --------------------------------------------------------------------------------
1. Description of business
EBS Litigation, L.L.C. (the "Company") is governed by a Members Agreement,
dated as of September 25, 1997 (the "Members Agreement"). Pursuant to the
Members Agreement, the Company's purposes are to (a) prosecute, settle
and/or liquidate the Unresolved Avoidance Claims relating to the
distribution by Edison Brothers Stores, Inc. ("Edison") of approximately
4.4 million shares of common stock of Dave & Busters, Inc. to holders of
Edison common stock in the form of a dividend and all related transactions
(the "Unresolved Avoidance Claims"), (b) receive, and administer the cash
proceeds of the Unresolved Avoidance Claims, and (c) distribute the net
proceeds to the appropriate holders of Membership Units (the "Members") in
accordance with the Members Agreement.
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 generally accepted accounting principles. The
preparation of financial statements in conformity with generally accepted
accounting principles requires that management make estimates and
assumptions which impact the reported amounts of assets and liabilities at
the date of the financial statements and the reported amounts of revenues
and expenses during the reporting period. Adjustments are of a normal
recurring nature. Actual results could differ from those estimates.
Basis of Presentation
These financial statements include the accounts of the Company for the
periods from January 1, 1999 through December 31, 1999, January 1, 1999
through June 30, 1999 (unaudited) and January 1, 2000 through June 30, 2000
(unaudited), April 1, 1999 through June 30, 1999 (unaudited), and April 1,
2000 through June 30, 2000 (unaudited).
Cash and Cash Equivalents
Cash consists of amounts held in an account in the Company's name at a
highly-rated financial institution, which funds are invested in an
institutional money market fund investing solely in direct obligations of
the United States Government.
Accrued Expenses
Accrued expenses include amounts payable to service providers and other
vendors. Amounts are payable within one year.
Defendant Payment Revenue
Defendant payment revenue is determined on an accrual basis and represents
settlements with individual defendants of Avoidance Claims during the
period.
Interest
Interest income is determined on the accrual basis. Interest receivable is
due to be received within one year.
Expenses
All expenses of the Company are recorded on the accrual basis of
accounting.
Income Taxes
The Company is not subject to income taxes. Instead, the Members report
their distributive share of the Company's profits and losses on their
respective income tax returns.
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EBS LITIGATION, L.L.C.
Notes to Financial Statements
June 30, 2000 and December 31, 1999
- --------------------------------------------------------------------------------
3. Members' Equity
On September 25, 1997, Edison transferred its rights, title and interest in
the Unresolved Avoidance Claims. In addition, as of September 25, 1997,
Edison was obligated to provide cash funding to the Company of $2.0 million
(the "LLC Funding Amount"), which was subsequently paid to the Company on
October 16, 1997. Such transfer and funding were in exchange for 10,000,000
Class B Membership Units of the Company, which represented all of the
outstanding Membership Units of the Company. On December 12, 1997, in
accordance with the Company's Members Agreement and the Plan of
Reorganization, Edison exchanged 9,064,140 Class B Membership Units for
9,064,140 Class A Membership Units of the Company and simultaneously
distributed such Class A Membership Units to holders of Allowed General
Unsecured Claims (as defined in the Plan).
During 1998, Edison exchanged 936,138 Class B Membership Units for 936,138
Class A Membership Units of the Company and simultaneously distributed such
Class A Units to holders of Allowed General Unsecured Claims.
During 1998, the Company distributed $13.7 million to holders of Class A
Membership Units. In addition, $0.8 million was retained for holders of the
Class A Membership Units that were distributed in December 1998.
Also during 1998, certain Class A Membership Unit holders returned 278 Class
A Membership Units to Edison as such Membership Units had been distributed
in error. The distribution proceeds relating to these returned Membership
Units are included in retained earnings and were made available for future
distribution to holders of Class A Membership Units. At December 31, 1999,
Edison has no Class B Membership Units outstanding.
On February 1, 1999, the Company distributed the $0.8 million of reserved
amounts of D&B Spinoff Settlement Proceeds (as defined in the Plan) to the
holders of the Class A Membership Units that were distributed in November
and December 1998. This represents the entire amount of funds reserved for
future holders of Class A Membership Units.
4. Subsequent Events (unaudited)
Cash on deposit as of July 15, 2000
As of July 15, 2000, the Company had approximately $1.8 million in cash and
cash equivalents. This amount represents the sum of aggregate D&B Spinoff
Settlement Proceeds, the L.L.C. Funding Amount and accrued interest through
June 30, 2000, less disbursements through July 15, 2000. These proceeds will
be used for general operations. Any amounts not used will be made available
for future distributions to Class A Membership Unit holders.
7
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 the results of operations of the Company as of and for the years ended
December 31, 1999 and 1998 and as of and for the periods ended December 31,
1997, January 1, 2000 through June 30, 2000 (unaudited) and January 1, 1999
through June 30, 1999 (unaudited), and of certain factors that may affect the
Company's prospective financial condition and results of operations. This
discussion and analysis should be read in conjunction with the Company's
Financial Statements and Notes thereto included elsewhere herein and included in
the Company's Annual Report and Form 10-K for the year ended December 31, 1999.
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 organized
solely for the purposes of (a) prosecuting, settling and/or liquidating the
Unresolved Avoidance Claims, (b) receiving and administering the proceeds from
the Unresolved Avoidance Claims (the "Avoidance Claim Proceeds"), and (c)
distributing the net Avoidance Claim Proceeds to holders of the Company's Class
A Membership Units pursuant to the terms of the Members Agreement. The Company
commenced its activities on September 25, 1997.
On October 16, 1997, the Company received the L.L.C. Funding Amount of $2
million. The Company recognizes income from amounts received from the
prosecution, settlement and liquidation of the Unresolved Avoidance Claims. To
date, the Company has only received settlement amounts. During the period ended
December 31, 1997, the Company received approximately $10.0 million in D&B
Spinoff Settlement Proceeds. The D&B Spinoff Settlement Period was to initially
expire on October 27, 1997, at which time the Company had received approximately
$7.8 million in D&B Spinoff Settlement Proceeds. However, many defendants were
not able to accept the D&B Spinoff Settlement by the initial deadline for
reasons including, without limitation, (a) the time lag attendant to the
transmission of settlement-related documents from record holders to their
beneficial holders, and (b) the desire of certain D&B Spinoff Stockholders to
consult with counsel or other advisors prior to participating in the D&B Spinoff
Settlement. The Manager therefore decided that an extension of the D&B Spinoff
Settlement Period was in the best interests of the Company. The extension
permitted the recovery of additional D&B Settlement Proceeds of approximately
$2.2 million between October 27, 1997 and December 31, 1997, approximately $5.0
million for the year ended December 31, 1998 and none for the year ended
December 31, 1999. The Company recovered $1,359 for the six month period ended
June 30, 2000. The Company expects to recognize defendant payment revenue in
future periods as the Unresolved Avoidance Claims are prosecuted, settled
further, or both. However, there can be no assurance that the Company will
recognize any further defendant payment revenue.
The Company also recognizes income from interest earned on Avoidance Claim
Proceeds. The Company invests Avoidance Claim Proceeds in a money market fund
investing solely in direct obligations of the United States Government. The
Members Agreement permits all funds received by the Company to be temporarily
invested in United States treasury bills and notes with maturities of 12 months
or less, institutional money market funds, and demand or time deposits with U.S.
federal or state commercial banks having primary capital of not less than $500
million. During the years ended December 31, 1999 and 1998, and the period ended
December 31, 1997, the Company recognized approximately $92,000, $388,000 and
$106,000 of interest income, respectively. During the six month periods ended
June 30, 2000 and 1999, the Company recognized approximately $49,327 and $47,014
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 Avoidance
Claims Proceeds received in the future, (3) the amounts and timing of any
distributions to holders of Class A Membership Units, and (4) the amount and
timing of the Company's expenses.
8
The Company's expenses consist primarily of fees payable to the Company's
lawyers and accountants, insurance expenses, the Transfer Agent and the Manager.
The Company had expenses of approximately $299,000, $671,000 and $176,000 for
the years ended December 31, 1999 and 1998, and the period ended December 31,
1997, respectively. During the six month periods ended June 30, 2000 and 1999,
the Company had expenses of approximately $197,665 and $106,904, respectively.
These expenses are expected to fluctuate in future periods primarily based on
activity in any period in the D & B Spinoff Litigation.
The Company and EBS Pension, L.L.C. (another limited liability company
formed pursuant to the Plan) have agreed to indemnify the Debtors (as defined in
the Plan) and their present or former officers, directors and employees from and
against any losses, claims, damages or liabilities by reason of any actions
arising from or relating to the Company and any actions taken or proceeding
commenced by the Company (other than with respect to any Unresolved Avoidance
Claims that the Company may have against such persons other than in their
capacities as officers, directors or employees of the Debtors). Indemnification
must first be sought from any applicable officers' and directors' insurance
policy, and then from the $1.5 million reserve established by EBS Pension L.L.C.
Although to date there has not been any indemnification claim, there can be no
assurance such a claim will not be made in the future. All liabilities of the
Company, including the foregoing indemnification obligations, will be satisfied
from the Company's assets.
At December 31, 1999, 1998 and 1997, the Company had cash and cash
equivalents of approximately $1.9 million, $3.0 million and $12.0 million,
respectively. At June 30, 2000, the Company had cash and cash equivalents of
approximately $1.8 million. During 1999, the company distributed an aggregate
amount of $0.8 million to holders of Class A Membership Units. The amount and
timing of any future distributions of Avoidance Claim Proceeds will be
determined by the Manager in accordance with the term 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's lawyers completed third-party discovery, including
depositions of former officers and directors of Edison, and third-party
discovery closed on March 31, 2000, pursuant to court order. On or about March
29, 2000, the Class Representatives (D&B Stock is held by approximately 2,500
different individuals and entities (the "Class"). The Class includes Barclays
Global Investors, N.A., Greentree Partners, and Greenway Partners, which are
referred to herein as the "Class Representatives.") filed a third-party
complaint against former directors of Edison (the "Edison Third-party
Defendants"), former and current directors of Dave & Busters, Inc. and against
Dave & Busters, Inc. (the "D&B Third-party Defendants" and collectively with
Edison Third Party Defendants, the "Third-party Defendants"). The complaint
purports to allege claims for breach of fiduciary duties, aiding and abetting
breaches of fiduciary duties, and for contribution or "subrogation." Because
these claims might have implicated the indemnification provisions described
above, the claims were reviewed in detail by the Company's lawyers, and found to
be without substantial merit. While there can be no assurances of the Company's
success, the Company intends to oppose joinder of these claims in the D & B
Spin-off Litigation (as defined in the Plan).
In June 2000, the Third-party Defendants each filed a Motion to Dismiss the
third-party complaints against them. The Company filed a joinder in those
motions. The Class filed responses in July, and the Third-party Defendants'
replies are due on August 16, 2000. A hearing on the Motions has been scheduled
for August 21, 2000. The Court has promised a prompt ruling, and stayed the
taking of depositions, including expert depositions, pending the ruling. A
ruling denying the Motions to Dismiss, and allowing the Class' action against
the Third-party Defendants to proceed, could negatively impact the Company's
trial date currently set for January 29, 2001.
In July 2000, the Class Representatives also filed a Motion to Amend the
Order Certifying the Defendant Class. In this Motion, the Class Representatives
seek to add absent class members as named class representatives. The Company
opposed this Motion on the grounds that: the Class Representatives should not
have been represented by Class Counsel in the Motion against absent class
members; there was no showing of need to add named class representatives; and
the adding of certain absent class members as named class representatives could
create unnecessary conflicts for the Company's lawyers to the substantial
prejudice of the Company. Two of the proposed named class representatives,
Mellon Bank and Boston Safe Deposit, related entities, have also filed a
substantive
9
objection to the Motion on similar grounds. The Company has requested that a
hearing on this Motion be held August 21, 2000 as well.
The Company continues vigorously to pursue the litigation, and is working
to preserve the current trial schedule that the Company believes is important to
its efforts to collect the value of the D&B Spin-off shares.
The Company is classified as a partnership for federal income tax purposes
and, therefore, does not pay taxes. Instead, the Members pay taxes on their
proportionate share of the Company's income.
Quarterly Results
Six Months Ended June 30, 2000 Compared to the Six Months Ended June 30, 1999
Total revenues for the six months ended June 30, 2000 and 1999 were $50,686
and $47,014, respectively. This increase is due to the receipt of D&B Spinoff
Settlement Proceeds and an increase in interest rates.
Total expenses increased $90,761 due primarily to an increase in legal and
accounting fees due to the increase in litigation activity during the period and
efforts to resolve settlement issues.
10
PART II. OTHER INFORMATION
Item 1. Legal Proceedings.
Other than the D&B Spinoff Litigation referenced elsewhere herein, 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 Litigation, L.L.C. Certificate of Formation
3.2* EBS Litigation, L.L.C. Membership Agreement
27.1 Financial Data Schedule
* 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. 000-24711).
(B) Reports on Form 8-K
None.
11
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 LITIGATION, L.L.C.
/s/ Peter N. Wang, Manager
----------------------------------------
Date: August 15, 2000 Peter N. Wang, Manager
12