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, 2001
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 May 1, 2001 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 Operations
For the Three Months
Ended March 31, 2001 and 2000
-----------------------------
For the three months ended
March 31,
2001 2000
(unaudited) (unaudited)
Income:
Defendant payment revenue $ - $ -
Interest 18,912 24,261
--------- ---------
Total income 18,912 24,261
--------- ---------
Expenses:
Legal and accounting fees 58,500 38,366
Insurance 17,260 22,192
Transfer agent and settlement
administration fees 9,500 12,000
Manager fees 7,249 6,691
Other 700 500
--------- ---------
Total expenses 93,209 79,749
--------- ---------
Net loss $(74,297) $(55,488)
========= =========
Net loss per unit--primary and diluted $ (.007) $ (.006)
========= =========
The accompanying notes are an integral part of these financial statements.
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EBS LITIGATION, L.L.C.
Balance Sheet
March 31, 2001 and December 31, 2000
------------------------------------
March 31, December 31,
2001 2000
(unaudited)
Assets
Cash and cash equivalents
Available for general operations $1,544,030 $1,545,066
Prepaid insurance 35,370 52,630
Interest receivable 5,998 7,450
Miscellaneous receivable - 5,000
---------- ----------
Total assets $1,585,398 $1,610,146
========== ==========
Liabilities
Accrued expenses $ 152,520 $ 102,971
---------- ----------
Total liabilities 152,520 102,971
---------- ----------
Members' equity:
Membership Units (Class A - 10,000,000 authorized,
issued and outstanding at March 31, 2001 and
December 31, 2000, Class B - 0 authorized,
issued and outstanding at March 31, 2001 and
December 31, 2000)
Retained earnings 1,432,878 1,507,175
---------- ----------
Total members' equity 1,432,878 1,507,175
---------- ----------
Total liabilities and members' equity $1,585,398 $1,610,146
========== ==========
The accompanying notes are an integral part of these financial statements.
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EBS LITIGATION, L.L.C.
Statement of Changes in Members' Equity
For the Period Ended March 31, 2001 and the Year ended December 31, 2000
------------------------------------------------------------------------
Class A Class B
Membership Membership Retained
Units Units Deficit Total
Balance, January 1, 2000 10,000,000 - $1,894,069 $1,894,069
Current year loss - - (386,894) (386,894)
---------- ---------- ---------- ----------
Balance, December 31, 2000 10,000,000 - 1,507,175 1,507,175
Current period loss (unaudited) - - (74,297) (74,297)
---------- ---------- ---------- ----------
Balance, March 31, 2001 (unaudited) 10,000,000 - $1,432,878 $1,432,878
========== ========== ========== ==========
The accompanying notes are an integral part of these financial statements.
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EBS LITIGATION, L.L.C.
Statement of Cash Flows
For the Three Months Ended March 31, 2001 and 2000
--------------------------------------------------
For the three months ended
March 31,
2001 2000
(unaudited) (unaudited)
Cash flows from operating activities:
Net loss $ (74,297) $ (55,488)
Reconciliation of net loss to cash flows
(used in)/provided by operating activities:
Decrease in prepaid insurance 17,260 22,192
Decrease in miscellaneous receivables 5,000 18,261
Decrease (increase) in interest receivable 1,452 (783)
Increase in accrued expenses 49,549 17,547
---------- ----------
Cash flows (used in)/provided by operating activities (1,036) 1,729
---------- ----------
Net (decrease) increase in cash and cash equivalents (1,036) 1,729
Cash and cash equivalents at beginning of period 1,545,066 1,902,951
---------- ----------
Cash and cash equivalents at end of period $1,544,030 $1,904,680
========== ==========
The accompanying notes are an integral part of these financial statements.
-5-
EBS Litigation, L.L.C.
Notes to Financial Statements
March 31, 2001 and December 31, 2000
- --------------------------------------------------------------------------------
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, 2000 through December 31, 2000, January 1, 2000
through March 31, 2000 (unaudited) and January 1, 2001 through March 31,
2001 (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.
The Company's cash and cash equivalents represent the sum of the aggregate
Dave and Busters, Inc. Spinoff Settlement Proceeds and the L.L.C. Funding
Amount. These funds will be used for general operations. Any amounts not
used in general operations will be made available for future distributions
to Class A Membership Unit holders.
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.
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EBS Litigation, L.L.C.
Notes to Financial Statements
March 31, 2001 and December 31, 2000
- --------------------------------------------------------------------------------
Income Taxes
The Company is not subject to income taxes. Instead, the Members report
their distributive share of the Company's profits and losses on their
respective income tax returns.
3. Members' Equity
On September 25, 1997, Edison transferred its rights, title and interest in
the Unresolved Avoidance Claims. In addition, as of September 25, 1997,
Edison was obligated to provide cash funding to the Company of $2.0 million
(the "LLC Funding Amount"), which was subsequently paid to the Company on
October 16, 1997. Such transfer and funding were in exchange for 10,000,000
Class B Membership Units of the Company, which represented all of the
outstanding Membership Units of the Company. On December 12, 1997, in
accordance with the Company's Members Agreement and the Plan of
Reorganization, Edison exchanged 9,064,140 Class B Membership Units for
9,064,140 Class A Membership Units of the Company and simultaneously
distributed such Class A Membership Units to holders of Allowed General
Unsecured Claims (as defined in the Plan).
During 1998, Edison exchanged 936,138 Class B Membership Units for 936,138
Class A Membership Units of the Company and simultaneously distributed such
Class A Units to holders of Allowed General Unsecured Claims.
During 1998, the Company distributed $13.7 million to holders of Class A
Membership Units. In addition, $0.8 million was retained for holders of the
Class A Membership Units that were distributed in December 1998.
Also during 1998, certain Class A Membership Unit holders returned 278
Class A Membership Units to Edison as such Membership Units had been
distributed in error. The distribution proceeds relating to these returned
Membership Units are included in retained earnings and were made available
for future 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.
During 2000, and the three month period ending March 31, 2001, the Company
did not make any distributions to holders of Class A Membership Units.
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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, 2000, 1999 and 1998 and as of and for the periods ended December 31, 1997,
January 1, 2001 through March 31, 2001 (unaudited) and January 1, 2000 through
March 31, 2000 (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, 2000. 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 years ended
December 31, 2000 and 1999. The Company did not recover any funds for the period
ended March 31, 2001. 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, 2000, 1999 and 1998, and the period
ended December 31, 1997, the Company recognized approximately $101,000, $92,000,
$388,000 and $106,000 of interest income, respectively. During the three month
periods ended March 31, 2001 and 2000, the Company recognized approximately
$19,000 and $24,000 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 $489,000, $299,000, $671,000 and
$176,000 for the years ended December 31, 2000, 1999 and 1998, and the period
ended December 31, 1997, respectively. During the three month periods ended
March 31, 2001 and 2000, the Company had expenses of approximately $93,209 and
$79,749, 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, 2000, 1999, 1998 and 1997, the Company had cash and cash
equivalents of approximately $1.5 million, $1.9 million, $3.0 million and $12.0
million, respectively. At March 31, 2001, the Company had cash and cash
equivalents of approximately $1.5 million. During 2000, the Company distributed
an aggregate amount of $0.8 million to holders of Class A Membership Units. The
Company made no distributions during the three month period ending March 31,
2001. 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 ("Motions to Dismiss"). The Company filed a
joinder in those Motions to Dismiss. On August 21, 2000, the Court held a
hearing on the Motions to Dismiss and other matters. By Order dated as of August
28, 2000, the Court granted the Motions to Dismiss in part, and denied them in
part. The Court dismissed the breach of fiduciary duty claims and the related
claims for aiding and abetting breach of fiduciary duty, finding the claims, if
any, barred by the statute of limitations. However, the Court denied the Motion
to Dismiss the purported contribution and/or "subrogation" claim. Because of
certain inconsistencies in the Court's rulings, the Third-party Defendants moved
for clarification, reconsideration, or in the alternative, interlocutory
(immediate) appeal ("Motions for Reconsideration"). The Company filed a limited
joinder in those Motions for Reconsideration, and the Class filed its
opposition. The Court has not set a date for deciding these Motions for
Reconsideration.
In July 2000, the Class Representatives also filed a Motion to Amend the
Order Certifying the Defendant Class ("Motion to Amend"). In this Motion to
Amend, the Class Representatives seek to add absent class members as named class
representatives. The Company opposed this Motion to Amend on the grounds that:
(i) the Class Representatives should not have been represented by Class Counsel
in the Motion to Amend against absent class members; (ii) there was no showing
of need to add named class representatives; and (iii) the adding of certain
absent
9
class members as named class representatives could create unnecessary conflicts
for the Company's lawyers to the substantial prejudice of the Company. Two of
the proposed named class representatives, Mellon Bank and Boston Safe Deposit,
related entities, filed substantive objections to the Motion to Amend on similar
grounds. On August 21, 2000, the Court heard argument on the issues presented by
the Motion to Amend and took the matter under advisement. The Court has not
indicated when it will rule on the Motion to Amend.
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 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.
The trial date that had been scheduled for January 29, 2001, has now been
rescheduled by Order of the District Court of Delaware to a date to be
determined after June 15, 2001. The Company continues to prosecute the D&B
Spinoff Litigation vigorously, and to pursue the maximum available recoveries.
While there can be no assurances as to the Company's ultimate total recovery
given the uncertainties associated with litigation, at this juncture it is
estimated that such recoveries will exceed the costs of further prosecuting the
D&B Spinoff Litigation.
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
Three Months Ended March 31, 2001 Compared to the Three Months
Ended March 31, 2000
The decrease in revenue for the current quarter compared to the first
quarter of last year was due a reduction of interest income from cash and cash
equivalents.
Total expenses increased $13,460 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
* 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
-----------------------------------------
Peter N. Wang, Manager
Date: May 14, 2001
12