UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-K
[x] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the fiscal year ended December 31, 2001
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES 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 I.R.S. Employer)
jurisdiction of incorporation) (Identification Number
c/o Friedman, Wang & Bleiberg, P.C.
90 Park Avenue
New York, New York 10016
Attn: Peter N. Wang
(Address of principal executive offices)
Registrant's telephone number, including area code (212) 682-7474
Securities registered pursuant to Section 12(b) of the Act:
None
Securities registered pursuant to Section 12(g) of the Act:
Class A Membership Units
(Title of class)
Indicate by check mark whether the registrant (1) has filed all
reports required to be filed by Section 13 or 15(d) of the Securities Exchange
Act of 1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. Yes [X] No [ ]
Indicate by check mark if disclosure of delinquent filers pursuant
to Item 405 of Regulation S-K is not contained herein, and will not be
contained, to the best of registrant's knowledge, in definitive proxy or
information statements incorporated by reference in Part III of this Form 10-K
or any amendment to this Form 10-K. [X]
There is no aggregate market value of the registrant's Class A
Membership Units held by nonaffiliates of the registrant as of December 31,
2001. Book value of the registrant's Class A Membership Units as of December 31,
2001 was approximately $1.5 million.
There were 10,000,000 Class A Membership Units outstanding as of March
15, 2002.
PART I
ITEM 1--BUSINESS
Unless otherwise noted, all references to "the Company" shall mean EBS
Litigation, L.L.C., a Delaware limited liability company.
Background
On September 9, 1997, the United States Bankruptcy Court for the
District of Delaware (the "Bankruptcy Court") entered an order in accordance
with section 1129 of the Bankruptcy Code, 11 U.S.C. ss.ss. 101-1330, et seq.,
(the "Bankruptcy Code") confirming the Amended Joint Plan of Reorganization
Under Chapter 11 of the Bankruptcy Code (the "Plan") filed by Edison Brothers
Stores, Inc. ("Edison") and its affiliated debtors in possession (collectively
with Edison, the "Debtors"). The Plan became effective on September 26, 1997
(the "Effective Date").
The Company was established pursuant to the Plan and the EBS
Litigation, L.L.C. Members Agreement (the "Members Agreement"). Pursuant to the
Plan, each holder of an Allowed General Unsecured Claim (as defined in the Plan)
against Edison was entitled to receive a distribution on account of such claim
which included, among other consideration, the holder's pro rata share of the
Company's Class A Membership Units in the Company. The initial distribution date
under the Plan occurred on or about December 12, 1997 (the "Initial Distribution
Date"). Accordingly, in late December of 1997, holders of Allowed General
Unsecured Claims began receiving membership certificates evidencing their
ownership of Class A Membership Units in the Company. As of December 31, 1999
and 2000, there were 10,000,000 Class A Membership Units and no Class B
Membership Units of the Company issued and outstanding.
The Plan further provided for the Debtors' transfer to the Company of
their right, title and interest in and to all of the Debtors' potential
fraudulent transfer causes of action under the Bankruptcy Code or applicable
state law, arising in connection with (a) the June 29, 1995 distribution by
Edison of approximately 4,404,560 shares of common stock (the "D&B Common
Stock") in Dave & Buster's Inc., a Missouri corporation ("Dave & Busters"), to
holders of Edison common stock (the "D&B Spinoff Stockholders") in the form of a
dividend; and (b) all related transactions (the "D&B Spinoff"). The causes of
action relating to the D&B Spinoff are referred to herein as the "Unresolved
Avoidance Claims." Following transfer of the Unresolved Avoidance Claims to the
Company, the Plan provided for the appointment of the Company as the
representative of the Debtors' estates for the purpose of retaining and
enforcing the Unresolved Avoidance Claims in accordance with section
1123(b)(3)(B) of the Bankruptcy Code and the Members Agreement.
The Plan further obligated the Debtors to transfer the "L.L.C. Funding
Amount," in an amount designated by the Official Committee of Unsecured
Creditors appointed in the Debtors' chapter 11 cases (the "Creditors'
Committee"), to the Company on the Effective Date. The Creditors' Committee
designated $2 million as the L.L.C. Funding Amount payable to the Company; such
L.L.C. Funding Amount was paid to the Company on October 16, 1997.
Formation of the Company and Summary of Certain Provisions of the Members
Agreement
Formation
In accordance with the Plan, the Certificate of Formation of the
Company was filed on September 24, 1997, with the office of the Delaware
Secretary of State for the purpose of forming the Company as a limited liability
company under the provisions and subject to the requirements of the State of
Delaware, and in particular the Delaware Limited Liability Company Act, Del.
Code Ann. tit.6, ch. 18 (the "Delaware Act"). The Certificate of Formation
became effective on September 25, 1997 (the "Inception Date").
2
Purposes
The Company was organized solely for the purposes of (a) prosecuting,
settling and/or liquidating the Unresolved Avoidance Claims; (b) receiving and
administering all assets of the Company (i.e., the cash proceeds of the
Unresolved Avoidance Claims or "Avoidance Claim Proceeds" as well as other
property or proceeds received by the Company); and (c) distributing the net
Avoidance Claim Proceeds to holders of Membership Units in the Company pursuant
to the terms of the Members Agreement. The Company has no objective to engage in
the conduct of any trade or business. In essence, the Company constitutes a
vehicle for (a) converting the Unresolved Avoidance Claims to cash, whether by
means of the D&B Spinoff Settlement (as defined in the Plan) or other
settlement, or enforcement of a judgment ultimately obtained; and then (b)
distributing all net cash to holders of Membership Units in the Company.
Administration and the Manager
The Company has no employees. The affairs of the Company are managed
by the Manager. The Manager of the Company, as duly designated by the Creditors'
Committee, is Peter N. Wang (in such capacity, the "Manager"). The principal
office of the Company is maintained at the office of the Manager, which is the
law office of Friedman, Wang & Bleiberg, P.C. ("FWB"), 90 Park Avenue, New York,
New York 10016. The telephone number is (212) 682-7474.
In furtherance of the Company's purposes and subject to the retained
jurisdiction of the Bankruptcy Court as provided for in the Plan, the Manager is
obligated to make continuing efforts to (1) prosecute, settle and/or liquidate
the Unresolved Avoidance Claims, based upon the assessment of the Manager, with
the advice of counsel and consultants retained by the Manager, of (A) the
likelihood that the Company will prevail on the merits, (B) the possible
recovery on such litigation, (C) the estimated cost (and attendant delay) of
such litigation, (D) the offer of settlement, (E) the resources of the Company
that are available for prosecuting the Unresolved Avoidance Claims, and (F) any
other matters that the Manager deems to be relevant to such assessment, and (2)
make distributions of Avoidance Claim Proceeds; in each case in an expeditious
but orderly manner intended reasonably to maximize the value of such
distributions to the Members, but subject to the judgment and discretion of the
Manager and the provisions of the Members Agreement. The Manager is not liable
or accountable, in damages or otherwise, to the Company or to any Member for any
action or inaction, except in the case of his willful breach of a material
provision of the Members Agreement or gross negligence in connection with the
performance of his duties under the Members Agreement.
The Manager is empowered to retain such independent experts and
advisors (including, but not limited to, law firms, tax advisors, consultants or
other professionals) as the Manager may select to aid in the performance of his
duties and responsibilities and to perform such other functions as may be
appropriate in furtherance of the intent and purpose of the Members Agreement.
The Members Agreement also requires the Manager to designate one of
the Members as the "Tax Matters Partner" (as defined in the Section 6231 of the
Internal Revenue Code). The Tax Matters Partner is required to represent the
Company (at the Company's expense) in connection with all examinations of the
Company's affairs by tax authorities and to expend Company funds for
professional services associated therewith. The Tax Matters Partner also
arranges for the preparation and timely filing of all returns required to be
filed by the Company and the distribution of Form K-1 or other similar forms to
all Members. In accordance with the Members Agreement, the Manager has
designated Citibank, N.A., through its authorized representative Randolph I.
Thornton, Jr., to serve as the Tax Matters Partner of the Company.
The Manager has selected the law firm of Jones, Day, Reavis & Pogue
("Jones Day") to serve as counsel to the Company. Jones Day's principal duties
as counsel for the Company involve the prosecution of the D&B Spinoff Litigation
(as defined below) and related negotiations. Prior to the Effective Date, Jones
Day served as counsel to the Creditors' Committee. The Manager has selected
PricewaterhouseCoopers LLP to provide the Company with financial reporting and
consulting services as well as tax-related services. Wells Fargo Bank Minnesota,
N.A. (formerly known as Norwest Bank Minnesota, N.A.), which serves as the
Company's Transfer Agent and as the Company's Disbursing Agent under the Plan,
maintains the Company's funds and ownership registers, coordinates
3
distributions to Members of the Company, and performs related administrative
duties. Rubin, Brown, Gornstein & Company, LLP serves as the Company's
independent auditors.
Subject to the retained jurisdiction of the Bankruptcy Court as
provided for in the Plan, but without prior or further authorization, the
Manager may control and exercise authority over the Company's assets, over the
acquisition, management and disposition thereof and over the management and
conduct of the Company to the extent necessary to enable the Manager to fulfill
the intent and purposes of the Members Agreement. No person dealing with the
Company is obligated to inquire into the authority of the Manager in connection
with the acquisition, management or disposition of the Company's assets. In
connection with the administration of the Company's assets and the management of
the Company's affairs, the Manager has the power to take any and all actions as,
in the Manager's sole discretion, are necessary or advisable to effectuate the
purposes of the Company. The Manager may not, however, at any time, on behalf of
the Company or the Members, enter into or engage in any trade or business, and
no part of the Company's assets will be used or disposed of by the Manager in
furtherance of any such trade or business. All decisions and actions taken by
the Manager under the authority of the Members Agreement are binding upon all of
the Members and the Company. Without the consent of all of the Members, the
Manager may not (1) take any action in contravention of the Members Agreement;
(2) take any action which would make it impossible to carry on the activities of
the Company; or (3) possess property of the Company or assign the Company's
rights in specific property for other than Company purposes.
Term of the Company; Dissolution
The Company's existence was originally scheduled to terminate (unless
dissolved earlier) on September 26, 2000 (the third anniversary of the Effective
Date). However, the Manager (with the approval of Bankruptcy Court by Order No.
98-547-SLR) extended the Company's existence until September 19, 2002. If the
Company's Assets have not been fully liquidated and distributed or all Disputed
General Unsecured Claims (as defined in the Plan) have not been resolved then
the Company's existence may be extended for another two year period. The Company
may also be earlier dissolved because of an adjudication of the Bankruptcy Court
or because of the unanimous written consent of all Members. In the event of the
Company's dissolution, following the payment of, or provision for, all debts and
liabilities of the Company and all expenses of liquidation, and subject to the
right of the Liquidating Agent (as defined in the Members Agreement) to set up
reasonable cash reserves for any contingent or unforeseen liabilities or
obligations of the Company, all assets of the Company (or the proceeds thereof)
will be distributed to holders of Class A Membership Units in accordance with
their respective Capital Account (as defined in the Members Agreement) balances.
No Member will have any recourse against Edison or any other Member for any
distributions with respect to such Member's Capital Account balances.
The Company's Operations Since Inception
Commencement of Litigation
On September 29, 1997, the Company, as the assignee of the Unresolved
Avoidance Claims, filed a complaint (the "Complaint") with the Bankruptcy Court,
commencing the prosecution of all Unresolved Avoidance Claims against the D&B
Spinoff Stockholders, Dave & Busters, and their current management. The lawsuit
is pending before the Bankruptcy Court as Adversary Proceeding No. A-97-171 (the
"D&B Spinoff Litigation"). The Complaint filed by the Company alleged, among
other things, that Edison had not received reasonably equivalent value for the
D&B Common Stock and certain realty holdings valued at approximately $7.3
million in connection with the D&B Spinoff, and thus sought to recover the D&B
Common Stock, or the value thereof, from the D&B Spinoff Stockholders.
The Company also filed a Motion to Certify Defendant Class, requesting
that the Bankruptcy Court permit the Company to prosecute the D&B Spinoff
Litigation as a defendant class action. A defendant class action is a procedural
device whereby the plaintiff, in this case the Company, can identify a limited
number of qualified defendants to represent the interests of a larger number of
similarly situated defendants and upon prevailing, can take judgment against all
defendants. Certification of a defendant class and designation of class
representatives permits the plaintiff to obtain uniform relief from all
defendants by removing the inefficiencies and risks of inconsistent or varying
adjudications with respect to individual members of the class. The Company
initially identified 11 parties to serve as class representatives.
4
In addition to seeking recovery of the D&B Spinoff Stock or its value
from the D&B Spinoff Stockholders, the Complaint sought to recover approximately
$7.3 million transferred to insiders of Dave & Busters by subsidiaries of
Edison. Specifically, the Complaint alleged that Edison paid a $3.75 million
dividend to one subsidiary, and satisfied an antecedent debt of $3.55 million to
another subsidiary, for the sole purpose of providing cash to pay advances to
certain individual defendants. The Complaint sought recovery of these cash
transfers from defendants Dave & Busters, D&B Realty Holding, Inc., and the
named individuals (collectively, the "Spinoff-Related Defendants"). On October
30, 1997, the Spinoff-Related Defendants filed a joint answer, generally denying
the relevant allegations of the Complaint, setting forth certain affirmative
defenses and demanding a trial by jury. The Spinoff-Related Defendants also
filed a Motion for a Determination that the proceeding is a Core Proceeding
(which is a proceeding over which a bankruptcy court may preside in accordance
with 28 U.S.C.ss. 157(d)), which was granted without objection, as well as a
Motion for Withdrawal of Reference, seeking withdrawal of the D&B Spinoff
Litigation to the United States District Court for the District of Delaware (the
"District Court"). On August 10, 1998, the Company entered into a Settlement
Agreement with the Spinoff-Related Defendants and certain other interested
parties, wherein the Company released these parties from all Spinoff-Related
claims in return for a payment of $2.1 million. The action against the
Spinoff-Related Defendants was dismissed August 20, 1998, and the money was paid
into the Disbursing Agent's account on August 26, 1998.
The D&B Spinoff Settlement
Notwithstanding commencement of the D&B Spinoff Litigation, each D&B
Spinoff Stockholder had the right to obtain a release of all Unresolved
Avoidance Claims against it by participating in the D&B Spinoff Settlement
provided for in the Plan. In order to participate in the D&B Spinoff Settlement,
a D&B Spinoff Stockholder was obligated to exercise one of three settlement
options outlined in the Plan. The three settlement options permitted D&B Spinoff
Stockholders to participate by means of (a) exercising a specified number of
rights granted to Edison stockholders under the Plan; (b) paying cash to the
Company in an amount equal to the D&B Spinoff Release Minimum Purchase Price
described below; or (c) a combination of rights exercised and cash paid, all as
determined in accordance with formulas set forth in the Plan. Most of the D&B
Spinoff Stockholders who elected to participate in the D&B Spinoff Settlement
elected the settlement option (the "Direct Purchase Option") involving the
payment of the "D&B Spinoff Release Minimum Purchase Price," which was equal to
the product of (a) $5.6593, and (b) the number of shares of D&B Common Stock
that such D&B Spinoff Stockholder received in connection with the D&B Spinoff.
The Plan provided for the expiration of the D&B Spinoff Settlement
Period on the 30th day after the Effective Date. The Company elected to extend
such period for the Direct Purchase Option until March 30, 1998. It was
determined that such an extension was in the best interests of the Company, as
it permitted the recovery of approximately $4.5 million in D&B Spinoff
Settlement Proceeds from defendants who were not able to accept the D&B Spinoff
Settlement Offer 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.
At December 31, 1998, the D&B Spinoff Settlement Proceeds that had
been received by the Company aggregated approximately $15.0 million. This sum
represents the aggregate settlement amount paid by D&B Spinoff Stockholders of
approximately 2.4 million shares of D&B Common Stock. Holders of approximately 2
million remaining shares did not participate in the D&B Spinoff Settlement. For
procedural reasons, the Company is only seeking recovery against D&B Spinoff
Stockholders who received more than 55 shares of D&B Common Stock in the D&B
Spinoff.
On November 21, 1997, the Company temporarily withdrew its Motion to
Certify Defendant Class, in light of the fact that each of the proposed class
representatives had elected to participate in the D&B Spinoff Settlement.
Following efforts to identify adequate class representatives to replace the
initial proposed class representatives, on March 6, 1998, the Company filed (a)
its Motion to File Amended Class Complaint, requesting leave to file an amended
complaint (the "Amended Complaint") substantively similar to the Complaint but
identifying new proposed class representatives; and (b) a Renewed Motion to
Certify Defendant Class. On March 30, 1998, the Bankruptcy Court granted each of
these motions. The Bankruptcy Court's Order Certifying Defendant Class Action
5
(the "Class Certification Order") certified the following defendant class (the
"Defendant Class") as a mandatory defendant class pursuant to Rule 23(b)(1) of
the Federal Rules of Civil Procedure:
All persons or entities who were the beneficial or legal
recipients of at least 55 shares of the June 1995 transfer of
4,404,560 shares of Dave and Busters stock from Edison except those
persons or entities who have obtained a release of Unresolved
Avoidance Claims, as defined in the Plan, that was confirmed on
September 9, 1997.
The Class Certification Order designated the following entities
(collectively, the "Class Representatives") to represent the Defendant Class:
Barclays Global Investors, N.A.; Greentree Partners; Greenway Partners; Wilshire
Associates, Inc; and WKW Asset Management.
On May 22, 1998, Class Representative Wilshire Associates, Inc. filed
a motion under Federal Rule of Civil Procedure 12(b)(6), seeking the Bankruptcy
Court's determination that Wilshire Associates, Inc. is not a proper party to
the D&B Spinoff Litigation. Wilshire Associates, Inc. asserts that it merely
serves as the nominee record holder of D&B Spinoff Stock, for the benefit of a
number of persons who have not thus far been identified. The Company has filed a
response to such motion, indicating that it will consent to dismissal of
Wilshire Associates, Inc. from the D&B Spinoff Litigation if Wilshire
Associates, Inc. adequately identifies, voluntarily or in accordance with an
order of the Bankruptcy Court, the persons for whose benefit it holds D&B
Spinoff Stock.
The Class Representatives selected Edward McNally and the Wilmington,
Delaware law firm of Morris, James, Hitchens & Williams ("Class Counsel") to
represent the Defendant Class. On June 8, 1998, Class Counsel filed a motion
seeking payment of all fees and costs relating to the D&B Spinoff litigation.
The Bankruptcy Court has not yet ruled on the motion, which the Company opposes.
Following official appointment of Class Counsel by the Bankruptcy Court, the
Class Counsel, on July 1, 1998, filed a motion requesting decertification of the
Defendant Class and a motion to withdraw reference from the bankruptcy court.
The Company filed its responses opposing the motions on July 14, 1998 and July
28, 1998, respectively. On July 17, 1998, the Defendant Class filed a motion to
dismiss the action. The Company's response opposing this motion was filed on
August 10, 1998.
The Defendant Class' Motion to Withdrawal Reference was assigned in
the district court in late September 1998. The Motion was fully briefed, and the
Company requested oral argument.
In May 1999 the United States District court for the District of
Delaware heard arguments on, and in July 1999 denied, the Defendant Class'
Motion to Dismiss, the Defendant Class' Motion to Decertify the Defendant Class
and Named Representative Wilshire Associates, Inc.'s ("Wilshire's") Motion to
Dismiss.
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 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.
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
6
its opposition. The Court ruled on the Motion for Reconsideration on January 12,
2001 dismissing all third party claims, and entered judgment under Rule 54(b) on
March 13, 2001.
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 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
parties thereafter agreed that additional named Class Representatives may be
added. The Court granted that motion on November 28, 2001.
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.
On January 22 and 23, 2002, the D&B Spinoff Litigation was tried
before Judge Robinson in the United States District Court for the District of
Delaware. It is anticipated that the Court will decide the case at some point
after completion of post-trial briefing in April 2002. 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.
ITEM 2--PROPERTIES
The Company does not own or lease any property.
ITEM 3--LEGAL PROCEEDINGS
Other than the D&B Spinoff Litigation described throughout this Annual
Report on Form 10-K, the Company is not involved in any legal proceedings.
ITEM 4--SUBMISSION OF MATTERS TO A VOTE OF SECURITY-HOLDERS
No matters were submitted to holders of Membership Units for vote
during the fiscal year ended December 31, 2001.
PART II
ITEM 5--MARKET FOR REGISTRANT'S COMMON EQUITY AND RELATED STOCKHOLDER MATTERS
There is no established public trading market for the Company's Class
A Membership Units. As of December 31, 2001, there were 2,056 certified holders
of record of the Class A Membership Units. See Item 12 -- "Security Ownership of
Certain Beneficial Owners and Management" for more information.
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ITEM 6--SELECTED FINANCIAL DATA
The following summary operating and balance sheet data sets forth
selected financial information of the Company as of and for the years ended
December 31, 2001, 2000, 1999 and 1998 and the period ended December 31, 1997
since the Inception Date. The selected financial data as of and for the years
ended December 31, 2001, 2000, 1999 and 1998 has been derived from the Company's
financial statements, which were audited by Rubin, Brown, Gornstein & Company,
LLP. The following information should be read in conjunction with the Company's
financial statements and notes thereto included elsewhere herein and
"Management's Discussion and Analysis of Financial Condition and Results of
Operations," presented below.
Year ended Year ended Year ended Year ended Period ended
December 31, 2001 December 31, 2000 December 31, 1999 December 31, 1998 December 31, 1997/(1)/
----------------- ----------------- ----------------- ----------------- -----------------
Operating Statement Data:
Defendant payment revenue --- $ 3,708 -- $4,981,595 $ 9,991,975
Interest income 50,741 98,160 92,376 388,168 106,048
Expenses 442,495 488,762 298,707 671,438 175,587
Net (loss) income (391,754) (386,894) (206,331) 4,698,325 9,922,436
Distribution per Class A -0- -0- 1.49/(3)/ 1.45/2)/ -0-
Membership Unit
Balance Sheet Data (at
period end):
Total assets 1,263,294 1,610,146 1,996,483 $ 3,049,682 $12,069,695
Accrued expenses 147,873 102,971 102,414 161,560 147,259
Members' equity 1,115,421 1,507,175 1,894,069 2,888,122 11,922,436
- ----------------------------
/(1)/ The Company's inception date was September 25, 1997.
/(2)/ This represents an average distribution made per Class A Membership Unit
during the year. Actual distributions to Class A Membership Unit holders
may differ. The following includes a detailed discussion of the
distributions made during the year. During April 1998, the Company
distributed approximately $7.0 million to the holders of 9,342,874 Class A
Membership Units that were outstanding at the date of distribution. During
June 1998, the Company distributed approximately $0.1 million to holders
of the 127,507 Class A Membership Units that were distributed in June
1998. During October 1998, the Company distributed approximately $6.6
million to the 9,470,381 holders of Class A Membership Units.
/(3)/ This represents an average distribution made per Class A Membership Unit
during the year. Actual distributions to Class A Membership Unit holders
may differ. During February 1999, the company distributed approximately
$0.8 million to holders of the 86,871 and 442,748 Class A Membership Units
that were distributed in November and December 1998, respectively.
8
ITEM 7--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, 2001, 2000, 1999 and 1998 and as of and for the period ended
December 31, 1997, and of certain factors that may affect the Company's
prospective financial condition and results of operations. This discussion and
analysis should be read in conjunction with the Company's Financial Statements
and Notes thereto included elsewhere herein. This discussion contains certain
forward-looking statements which involve risks and uncertainties. The Company's
actual results could differ materially from the results expressed in, or implied
by, such statements.
Results of Operations
The Company, which was formed pursuant to the Plan and the Members
Agreement, is a limited purpose entity which may not engage in any trade or
business. The Company was organized solely for the purposes of (a) prosecuting,
settling and/or liquidating the Unresolved Avoidance Claims, (b) receiving and
administering 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 and approximately
$5.0 million in the twelve month period ended December 31, 1998. For the year
ended December 31, 1999, the Company did not receive any proceeds. For the year
ended December 31, 2000, the Company received approximately $3,700. For the year
ended December 31, 2001, the Company did not receive any proceeds. 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, 2001, 2000, 1999 and 1998 and the
period ended December 31, 1997, the Company recognized approximately $51,000,
$98,000, $92,000, $388,000 and $106,000 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.
The Company's expenses consist primarily of fees payable to the
Transfer Agent, the Manager, and the Company's lawyers, accountants and auditors
and insurance expenses. The Company had expenses of approximately $442,000,
$489,000, $299,000, $671,000 and $176,000 for the years ended December 31, 2001,
2000, 1999 and 1998 and the period ended December 31, 1997, respectively. The
Company's expenses increased during fiscal year 2000 due primarily to an
increase in legal fees while actively litigating the D&B Spinoff
9
Litigation, as well as an increase in accounting fees due to various reporting
requirements. These expenses are expected to fluctuate in future periods
primarily based on the 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), pursuant to the Plan, will 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 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, 2001, 2000, 1999, 1998 and 1997, the Company had cash
and cash equivalents of approximately $ 1.2 million, $1.5 million, $1.9 million,
$3.0 million and $12.0 million, respectively. During 2001 and 2000, the Company
did not make any distributions to holders of Class A Membership Units. During
1999, the Company distributed an aggregate amount of $0.8 million to holders of
Class A Membership Units. During 1998, the Company distributed an aggregate
amount of $13.7 million to holders of Class A Membership Units. During 1997, the
Company did not make any distributions 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 terms of the Members
Agreement. There can be no assurance as to the amount (if any) of any further
distributions that will be made.
The Company is classified as a partnership for federal income tax
purposes and, therefore, does not pay taxes. Instead, the Members pay taxes on
their proportionate share of the Company's income.
10
ITEM 8--FINANCIAL STATEMENTS
REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS
Independent Auditors' Report
Rubin, Brown, Gornstein & Co., LLP
230 South Bemiston Avenue
St. Louis, MO 63105
Members
EBS Litigation, L.L.C.
We have audited the accompanying balance sheets of EBS Litigation, L.L.C., a
limited liability company, as of December 31, 2001 and 2000, and the related
statements of operations, changes in members' equity and cash flows for the
years ended December 31, 2001, 2000 and 1999. These financial statements are the
responsibility of the Company's management. Our responsibility is to express an
opinion on these financial statements based on our audit.
We conducted our audit in accordance with generally accepted auditing standards.
Those standards require that we plan and perform the audit to obtain reasonable
assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audit provides a reasonable basis for our opinion.
In our opinion, the financial statements referred to above represent fairly, in
all material respects, the financial position of EBS Litigation, L.L.C. as of
December 31, 2001 and 2000, and the results of its operations and its cash flows
for the years ended December 31, 2001, 2000 and 1999, in conformity with
generally accepted accounting principles.
/s/ Rubin, Brown, Gornstein & Co., LLP
-----------------------------------------
Rubin, Brown, Gornstein & Co., LLP
March 12, 2002
11
EBS Litigation, L.L.C.
Balance Sheet
December 31, 2001 and 2000
--------------------------
December 31,
2000 1999
Assets
Cash and cash equivalents
Available for general operations $1,209,813 $1,545,066
Prepaid insurance 51,397 52,630
Interest receivable 2,084 7,450
Miscellaneous receivable - 5,000
---------- ----------
Total assets $1,263,294 $1,610,146
========== ==========
Liabilities
Accrued expenses 147,873 102,971
---------- ----------
Total liabilities 147,873 102,971
---------- ----------
Members' equity:
Membership Units (Class A - 10,000,000
authorized, issued and outstanding
at December 31, 2001 and 2000)
Retained earnings 1,115,421 1,507,175
---------- ----------
Total members' equity 1,115,421 1,507,175
---------- ----------
Total liabilities and members' equity $1,263,294 $1,610,146
========== ==========
The accompanying notes are an integral part of these financial statements.
12
EBS Litigation, L.L.C.
Statements of Operations
For the Years Ended December 31, 2001, 2000 and 1999
----------------------------------------------------
For the years ended December 31,
2001 2000 1999
Income:
Interest $ 50,741 $ 98,160 $ 92,376
Defendant payment revenue -- 3,708 --
--------- --------- ---------
Total income $ 50,741 $ 101,868 $ 92,376
========= ========= =========
Expenses:
Legal fees $ 270,100 $ 271,507 $ 63,573
Insurance 71,233 84,685 88,767
Transfer agent and settlement
administration fees 38,000 38,000 74,000
Accounting fees 31,700 60,654 37,415
Manager fees 27,395 26,816 32,293
Other 4,067 7,100 2,659
--------- --------- ---------
Total expenses 442,495 488,762 298,707
--------- --------- ---------
Net loss $(391,754) $(386,894) $(206,331)
========= ========= =========
Loss per Membership Unit -
primary and diluted (.04) (.04) (.02)
The accompanying notes are an integral part of these financial statements.
13
EBS Litigation, L.L.C.
Statement of Changes in Members' Equity
For the Years Ended December 31, 2001, 2000 and 1999
----------------------------------------------------
Class A
Membership Retained
Units Earnings Total
Balance, December 31, 1998 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 year loss - (386,894) (386,894)
---------- ---------- ----------
Balance, December 31, 2000 10,000,000 1,507,175 1,507,175
Current year loss - (391,754) (391,754)
---------- ---------- ----------
Balance, December 31, 2001 10,000,000 $1,115,421 $1,115,421
========== ========== ==========
The accompanying notes are an integral part of these financial statements.
14
EBS Litigation, L.L.C.
Statement of Cash Flows
For the Years Ended December 31, 2001, 2000 and 1999
----------------------------------------------------
For the years ended December 31,
2001 2000 1999
Cash flows from operating activities:
Net loss $ (391,754) $ (386,894) $ (206,331)
Reconciliation of net loss to cash flows used in
operating activities:
Decrease (increase) in prepaid insurance 1,233 14,685 (1,233)
Decrease in interest receivable 5,366 503 3,607
Decrease (increase) in miscellaneous receivables 5,000 13,261 (18,261)
Increase (decrease) in accrued expenses 44,902 557 (59,146)
---------- ---------- ----------
Cash flows used in operating activities (335,253) (357,888) (281,364)
Cash flows used in financing activities:
Capital distribution, net - - (787,722)
---------- ---------- ----------
Net decrease in cash and cash equivalents (335,253) (357,888) (1,069,086)
Cash and cash equivalents at beginning of period 1,545,066 1,902,954 2,972,040
---------- ---------- ----------
Cash and cash equivalents at end of period $1,209,813 $1,545,066 $1,902,954
========== ========== ==========
The accompanying notes are an integral part of these financial statements.
15
EBS Litigation, L.L.C.
Notes to Financial Statements
December 31, 2001 and 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 and 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, 2000
through December 31, 2000 and January 1, 2001 through December 31,
2001.
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.
16
EBS Litigation, L.L.C.
Notes to Financial Statements
December 31, 2001 and 2000
- --------------------------------------------------------------------------------
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.
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. As of December 31, 1998, all 10,000,000 Class B Membership
Units had been exchanged for 10,000,000 Class A Membership Units.
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 distributions to holders of Class A
Membership Units.
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 2001, the Company did not make any distributions to holders of
Class A Membership units.
17
ITEM 9--CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
FINANCIAL DISCLOSURE
None.
PART III
ITEM 10--DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT
The Company has no directors and the Manager, Peter N. Wang, acts as
the Company's sole executive officer. Mr. Wang is 53 years old and has been a
shareholder and officer of FWB for the past 21 years. The Manager may resign at
any time or be removed by the holders (the "Requisite Holders") of 65% or more
of the outstanding Class A Membership Units (excluding such holders against whom
the Company holds Unresolved Avoidance Claims), with or without cause, at any
time, such resignation or removal to be effective upon the appointment of a
successor Manager. In the event of the death, resignation, incompetency or
removal of the Manager, the Requisite Holders may appoint a successor Manager
that is not affiliated with Edison. If such appointment does not occur within 90
days, the Manager or the Manager's representative may petition the Bankruptcy
Court for the appointment of a successor Trustee.
ITEM 11--EXECUTIVE COMPENSATION
The Members Agreement provides that FWB will receive compensation for
the Manager's services to the Company at the standard hourly rates charged for
the Manager's services and the services of other persons at FWB who may assist
him with his duties. The Company is also obligated to reimburse FWB for
reasonable expenses incurred by the Manager and others at FWB in connection with
the performance of the Manager's duties to the Company.
With respect to services rendered during the year ended December 31,
2001, FWB was paid $2,437 on account of the Manager's services to the Company
and $21,620 on account of services of another attorney at FWB who assisted him
with his duties. The Company also paid FWB $158 in expense reimbursement.
With respect to services rendered during the year ended December 31,
2000, FWB was paid $1,395 on account of the Manager's services to the Company
and $25,163 on account of services of another attorney at FWB who assisted him
with his duties. The Company also paid FWB $283 in expense reimbursement.
With respect to services rendered during the year ended December 31,
1999, FWB was paid $2,125 on account of the Manager's services to the Company
and $29,820 on account of services of another attorney at FWB who assisted him.
The Company also paid $90 for the services of a paralegal at FWB and $260 in
expense reimbursement.
With respect to services rendered from the Inception Date to December
31, 1997, FWB was paid $6,903 on account of the Manager's services, $20,995 on
account of the services of another attorney at FWB who assisted him, and $218 in
expense reimbursement.
18
ITEM 12--SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The following table sets forth certain information regarding the
certificated ownership of the Company's Class A Membership Units of persons
owning more than five percent of the outstanding Class A Membership Units as of
December 31, 2001.
Number of Class A Nature of Certificated
Name and Address of Certificated Owner Membership Units Ownership Percent
- -------------------------------------- ---------------- ---------------------- -------
Swiss Bank Corporation 1,593,601 Sole Voting/Investment 15.9%
Citibank, N.A. 836,070 Sole Voting/Investment 8.4%
Loeb Partners Corporation 1,176,937 Sole Voting/Investment 11.7%
Caspian Capital Partners, LP 698,555 Sole Voting/Investment 6.9%
Contrarian Capital Advisors, L.L.C. 740,731 Sole Voting/Investment 7.41%
Morgens Waterfall Overseas Partners 653,314 Sole Voting/Investment 6.5%
ITEM 13--CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
None.
PART IV
ITEM 14--EXHIBITS, FINANCIAL STATEMENT SCHEDULES AND REPORTS ON FORM 8-K.
(a) 1. The following financial statements and the report thereon of Rubin,
Brown, Gornstein & Co., LLP are included in Item 8 of this report:
Report of Independent Public Accountants
Balance Sheets as of December 31, 2001 and 2000
Statements of Operations for the Years Ended December 31, 2001,
2000 and 1999
Statements of Changes in Members' Equity for the Years Ended
December 31, 2001, 2000 and 1999
Statements of Cash Flows for the Years Ended December 31, 2001,
2000 and 1999
Notes to Financial Statements
2. Financial Statement Schedules:
All schedules are omitted since the required information is
not present in amounts sufficient to require submission of the
schedules or because the information required is included in
the financial statements and notes thereto.
(b) The Company has not filed any reports on Form 8-K during the last quarter
of the period covered by this Annual Report on Form 10-K.
19
(c) Exhibits
Exhibit
Number 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
23.1 Consent of Independent Public Accountants
-------------------
* Incorporated by reference to the Company's Form 10 originally filed
with the Securities and Exchange Commission on July 29, 1998
(SEC File No. 000-24711).
20
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, the registrant has duly caused this report to be signed on
its behalf by the undersigned, thereunto duly authorized.
Dated March 27, 2002 EBS LITIGATION, L.L.C.
By: /s/ Peter N. Wang
-------------------------------------
Peter N. Wang
Manager
21
Exhibit Index
-------------
Exhibit
Number Description Location
- ------- ------------------------------------------------- ----------------
2.1* Amended Joint Plan of Reorganization of Incorporated by
Edison Brothers Stores, Inc. reference
3.1* EBS Litigation, L.L.C. Certificate of Formation Incorporated by
reference
3.2* EBS Litigation, L.L.C. Membership Agreement Incorporated by
reference
23.1 Consent of Independent Public Accountants Filed herewith
- -------------------
* Incorporated by reference to the Company's Form 10 originally filed with the
Securities and Exchange Commission on July 29, 1998 (SEC File No. 000-24711).
22