As filed with the Securities and Exchange Commission on June 10, 2003
Registration No. 333-76854
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
______________________
POST-EFFECTIVE AMENDMENT NO. 1
TO
FORM S-2
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
UNIFIED WESTERN GROCERS, INC.
(Exact name of registrant as specified in its charter)
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<caption>
California 95-0615250
(State or other jurisdiction of incorporation or organization) (I.R.S. Employer Identification No.)
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______________________
5200 Sheila Street
Commerce, California 90040
(323) 264-5200
(Address, Including Zip Code, and Telephone Number,
Including Area Code, of Registrant's Principal Executive Offices)
______________________
Robert M. Ling, Jr.,
Executive Vice President, Secretary and General Counsel
Unified Western Grocers, Inc.
5200 Sheila Street
Commerce, California 90040
(323) 264-5200
(Name, address, including Zip Code, and Telephone Number,
Including Area Code, of Agent for Service)
______________________
Copy To:
Peter M. Menard, Esquire
Michael A. Henry, Esquire
Sheppard, Mullin, Richter & Hampton LLP
333 South Hope Street
48th Floor
Los Angeles, California 90071
(213) 617-4112
______________________
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
As soon as practicable after this Registration Statement becomes effective.
If any of the securities being registered on this Form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities Act
of 1933, check the following box. |X|
If the registrant elects to deliver its latest annual report to securities
holders, or a complete and legible facsimile thereof, pursuant to Item 11(a)(1)
of this Form, check the following box. |X|
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. |_| _______________
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. |_| _______________
If this form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. |_| _______________
If delivery of the prospectus is expected to be made pursuant to Rule 434,
check the following box. |_|
The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant shall
file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until this Registration Statement shall become
effective on such date as the commission, acting pursuant to said Section 8(a),
may determine.
Prospectus
UNIFIED WESTERN GROCERS, INC.
$30,000,000 Partially Subordinated Patrons' Deposit Accounts
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<caption>
Unified Western Grocers, Inc. We operate a grocery wholesale distribution
5200 Sheila Street business primarily on a cooperative basis. Our
Commerce, California 90040 customers are termed patrons and consist of
(323) 264-5200 member-patrons and associate-patrons. Patrons are
generally required to maintain deposits with us in
Price to the Public: $30,000,000 proportion to the volume of purchases made from
us. The deposits act as security for amounts owed
Proceeds to Unified: $30,000,000 by the customer to us. When patrons terminate
their relationship with us, we return their deposit
o Offering of deposit accounts to member-patrons and after deducting any amounts the patron owes to us
associate-patrons. if permitted by the subordination provisions of the
deposits. The requirement to maintain deposits can
o There is no market for these deposit accounts. be satisfied by member-patrons through a
combination of a cash deposits and the ownership
of our Class B Shares. Associate-patrons are not
shareholders.
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PLACING FUNDS IN DEPOSIT ACCOUNTS INVOLVES RISKS. SEE "RISK FACTORS" ON PAGE 4
FOR A DISCUSSION OF FACTORS YOU SHOULD CONSIDER BEFORE PLACING FUNDS IN DEPOSIT
ACCOUNTS.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED THESE SECURITIES, OR DETERMINED IF THIS
PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
THIS OFFER IS NOT UNDERWRITTEN.
________________, 2003
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TABLE OF CONTENTS
Page
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WHERE YOU CAN FIND MORE INFORMATION..........................................1
SUMMARY OF PROSPECTUS........................................................2
RISK FACTORS.................................................................4
RATIO OF EARNINGS TO FIXED CHARGES...........................................5
DESCRIPTION OF DEPOSIT ACCOUNTS..............................................5
METHOD OF OFFERING...........................................................9
USE OF PROCEEDS.............................................................10
EXPERTS.....................................................................10
FORWARD-LOOKING INFORMATION.................................................10
You should rely only on the information contained in or incorporated by
reference in this prospectus. We have not authorized any other person to provide
you with different information. If anyone provides you with different or
inconsistent information, you should not rely on it. We are not making an offer
to sell these securities in any jurisdiction where the offer or sale is not
permitted. You should assume that the information appearing in this prospectus
and the documents incorporated by reference is accurate only as of their
respective dates. Our business, financial condition, results of operations and
prospects may have changed since those dates.
WHERE YOU CAN FIND MORE INFORMATION
We have filed annual, quarterly and current reports, proxy statements and other
information with the SEC. You may read and copy any such report, statement or
other information at the SEC's public reference rooms at 450 Fifth Street, N.W.,
Room 1024, Washington D.C. 20549 and Citicorp Center, 500 West Madison Street,
Suite 1400, Chicago, Illinois 60661. You may obtain additional information about
the public reference rooms by calling the SEC at 1-800-SEC-0330. In addition,
the SEC maintains a site on the Internet at http://www.sec.gov that contains
reports, proxy statements and other information regarding issuers that file
electronically with the SEC.
We are "incorporating by reference" information into this prospectus. This means
that we are disclosing important information to you by referring you to another
document that has been filed separately with the SEC. The information
incorporated by reference is considered to be part of this prospectus.
Information that is filed with the SEC after the date of this prospectus will
automatically modify and supersede the information included or incorporated by
reference in this prospectus to the extent that the subsequently filed
information modifies or supersedes the existing information.
The following documents filed by Unified with the SEC are hereby incorporated by
reference:
o Annual Report on Form 10-K and Form 10-K/A for the fiscal year ended
September 28, 2002; and
o Quarterly Reports on Form 10-Q for the fiscal quarters ended
December 28, 2002 and March 29, 2003, respectively.
You may request a copy of these filings at no cost by writing to or telephoning
us at the following address and telephone number: Unified Western Grocers, Inc.,
5200 Sheila Street, Commerce, California 90040, Attention: Corporate Secretary,
(323) 264-5200.
Any statement made in this prospectus concerning the contents of any contract,
agreement or other document is only a summary of the actual document. You may
obtain a copy of any document summarized in this prospectus at no cost by
writing to or telephoning us at the address and telephone number given above.
Each statement regarding a contract, agreement or other document is qualified in
its entirety by reference to the actual document.
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SUMMARY OF PROSPECTUS
The following is a brief summary of certain matters described more fully
elsewhere in this document. You should read this summary in connection with the
more detailed information contained elsewhere in this document. You should pay
special attention to the section of this document entitled "RISK FACTORS."
BUSINESS DESCRIPTION: Unified Western Grocers, Inc. ("Unified" or the "Company")
is a grocery wholesaler serving supermarket operators in California, Oregon,
Washington, western Idaho, Nevada, Arizona, Hawaii, Colorado, Utah and various
foreign countries in the South Pacific and elsewhere. Unified does business
primarily with member-patrons on a cooperative basis. Member-patrons own shares
of the Company's Class A Shares and Class B Shares. Retailers may also do
business with the Company as non-shareholder associate-patrons or on a non-
patronage basis. Associate-patrons are not shareholders of the Company.
On September 25, 2002, the Company's Board of Directors approved a plan to exit
retail and other unprofitable subsidiary activities. Concurrent with this
decision, the Board of Directors also approved a plan to effect a quasi-
reorganization. A quasi-reorganization is an accounting procedure that
eliminates an accumulated deficit in retained earnings and permits the company
to proceed on much the same basis as if it had been legally reorganized. A
quasi-reorganization involves restating the Company's assets and liabilities to
their fair values. Any remaining deficit in retained earnings is then eliminated
by a transfer from paid in capital and capital stock, if necessary, giving the
Company a "fresh start" with a zero balance in retained earnings. The effect of
these two actions resulted in a net retained deficit that was eliminated by a
transfer from paid in capital, Class A and Class B Shares.
Our principal executive offices are located at 5200 Sheila Street, Commerce,
California 90040 and our telephone number is (323) 264-5200.
GENERAL: Persons or entities desiring to become member-patrons or
associate-patrons must be engaged in selling groceries and related merchandise
at retail or wholesale and must purchase weekly minimum volumes of merchandise
from Unified. Currently, Unified's minimum purchase requirement for
member-patrons is $5,000 per week and $3,500 per week for associate-patrons. In
order to qualify for and retain member-patron status and become a shareholder of
the Company, a person or other entity (1) must patronize Unified in amounts and
in a manner as is established by the Board of Directors; (2) must have approved
financial standing; (3) must make application in such form as is prescribed by
Unified; and (4) must be accepted as a member only after approval by the Board
of Directors. Applicants to become associate-patrons must make application in
the form prescribed by Unified, have approved financial standing and meet the
minimum purchase requirements. Patrons are generally required to maintain
deposits with Unified equal to the greater of twice the amount of each patron's
average weekly purchases or twice the amount of the patron's average purchases
if purchases are not on a regular basis, and may also maintain deposits with
Unified in excess of such required amounts. All such deposits of a patron are
maintained in the patron's deposit account. Amounts in the deposit accounts are
not segregated from other funds of Unified. Unified requires that each patron
meet the minimum purchase requirements established by the Board of Directors.
See "DESCRIPTION OF DEPOSIT ACCOUNTS -- General."
SUBORDINATION: Patrons are required to execute subordination agreements
providing for the pledging of their deposit accounts to Unified and the
subordination of the patron's right to repayment of its deposit to the prior
payment in full of senior indebtedness of Unified. The senior indebtedness to
which the deposit accounts are subordinated is described in this prospectus. The
subordination provisions limit the right to repayment of required deposit
amounts in the event of bankruptcy or other similar proceedings with respect to
Unified or an event of default under the Company's senior indebtedness occurs.
Repayment of deposit amounts is not currently limited by the Company's financial
covenants in its loan agreements. Amounts in the deposit accounts which are in
excess of required deposits are not subject to the subordination provisions. The
subordination agreements executed by patrons on and after January 14, 1994
differ from the subordination agreements which have been executed by patrons
before January 14, 1994. The outstanding amount of senior indebtedness to which
the required deposits is subordinated aggregated approximately $282 million as
of March 29, 2003. See "DESCRIPTION OF DEPOSIT ACCOUNTS -- Subordination."
INTEREST: That portion of the deposit accounts which consists of required
deposits is non-interest bearing. Except for deposits under Unified's price
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reservation program, Unified currently pays interest on cash amounts in the
deposit accounts which are in excess of required deposits. See "DESCRIPTION OF
DEPOSIT ACCOUNTS -- Interest."
REPAYMENT: Upon request, Unified will return to patrons the amount of their
deposit accounts which is in excess of the portion which consists of required
deposits, provided that the patron is not in default in its obligations to
Unified or any of its subsidiaries. Patrons may have amounts in their deposit
accounts that exceed the required amounts if the patrons' purchases during the
period when the required deposit amount is determined have declined from the
previous measuring period or the patrons have received cash patronage dividends,
which are deposited into the patrons' deposit accounts. On termination of
membership of a member-patron or on an associate-patron ceasing to do business
with Unified, Unified will return the deposit account, less all amounts that may
be owing to Unified and any of its subsidiaries. In all cases, however, return
of that portion of the deposit account which consists of required deposits will
be governed by the subordination provisions to which it is subject and will be
returned only to the extent permitted by the subordination provisions. See
"DESCRIPTION OF DEPOSIT ACCOUNTS -- Repayment."
RELATIONSHIP TO CLASS B SHARES: Unified requires each member-patron to acquire,
over time, its Class B Shares having combined issuance values in an amount equal
to the lesser of (a) the amount of the member-patron's required deposit account
or (b) twice the member-patron's average weekly purchases. Presently, as Class B
Shares are issued, each member-patron receives credit against its required
deposit account based upon the combined issuance values of such member's Class B
Shares. To the extent a member-patron's deposit exceeds the required amount,
Unified will return the excess upon request. Former United Grocers, Inc.
shareholders who do not hold sufficient Class B Shares to meet the minimum
deposit requirements are provided an opportunity to accumulate Class B Shares
over time without posting a cash deposit. Class B Shares are not issued to
associate-patrons. See "DESCRIPTION OF DEPOSIT ACCOUNTS -- Relationship to Class
B Shares."
OTHER SIGNIFICANT ASPECTS: The deposit accounts are unsecured, nontransferable
without Unified's consent, and pledged to Unified. See "DESCRIPTION OF DEPOSIT
ACCOUNTS -- Other Significant Aspects."
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RISK FACTORS
You should carefully consider the risks described below before placing funds in
deposit accounts.
YOUR REQUIRED MINIMUM DEPOSIT WILL BE AT RISK.
We will require all patrons to execute a subordination agreement which provides
for the subordination of the patron's right to repayment of its deposit to the
prior payment in full of senior indebtedness of Unified. If Unified goes into
default on its other indebtedness, member-patrons will not receive back their
deposit unless the other creditors holding indebtedness are paid in full. In
addition, Unified will require each shareholder to pledge its Class A Shares and
Class B Shares of Unified to secure its obligations, and individual shareholders
of corporate members may be required to guaranty the obligations of the
corporate member. See "DESCRIPTION OF DEPOSIT ACCOUNTS--Subordination."
YOUR DEPOSIT ACCOUNT IS NOT TRANSFERABLE.
You must have our permission to transfer your ownership of a deposit account to
someone else. We will generally not agree to let you do this. If you do not pay
the amounts you owe, we may take your deposit account balance as necessary to
pay those obligations.
A PORTION OF THE DEPOSIT ACCOUNTS DOES NOT BEAR INTEREST.
The minimum required amount of the deposit accounts does not bear interest. See
"DESCRIPTION OF DEPOSIT ACCOUNTS --Interest."
WE MAY NOT BE ABLE TO REPAY YOUR DEPOSIT ACCOUNT IN A TIMELY MANNER.
You may request that any amount you have in a deposit account in excess of the
minimum required amount be returned to you if you have paid your obligations to
Unified and its subsidiaries in a timely manner. If you ever cease being a
patron, then you may get back the full amount in your deposit account once we
deduct all obligations you owe us and our subsidiaries. Our ability to repay
your deposit account is subject to its obligations under subordination
provisions of the deposit accounts. See "DESCRIPTION OF DEPOSIT ACCOUNTS -
Repayment."
WE WILL CONTINUE TO BE SUBJECT TO RISK OF LOSS OF MEMBER VOLUME.
We will continue to be subject to the risks associated with the consolidation of
the grocery industry. When independent retailers are acquired by large chains
with self distribution capacity, are driven from business by larger grocery
chains, or become large enough to develop their own self-distribution system, we
will lose distribution volume. Members may also select other wholesale
providers. Reduced volume is normally injurious to profitable operations since
fixed costs must be spread over a lower volume of transactions.
WE RELY ON DEBT TO FINANCE OUR OPERATIONS.
The covenants reflected in the Company's two primary loan agreements require
maintenance of financial covenants with respect to minimum tangible net worth,
fixed charge coverage ratios and total funded debt to earnings (prior to
extraordinary non-cash items and non-cash items in respect of discontinued
operations) before interest, taxes, depreciation, amortization and patronage
dividends (EBITDAP). These loan agreements, which consist of a Note Purchase
Agreement and a Revolving Credit Agreement, have been filed as Exhibits 4.21 and
4.25 to the registration statement of which this prospectus is a part. The
minimum tangible net worth requirement was $80 million for the fiscal quarter
ended March 29, 2003. The minimum fixed charge coverage ratio requirement was
1.8:1 for the fiscal quarters ended September 28, 2002 and thereafter. The
maximum ratio of total funded debt to EBITDAP requirement is 3.75:1 for fiscal
quarters ending after September 29, 2002. As of March 29, 2003, the Company was
in compliance with its financial covenants. In the event of an event of default
with respect to those covenants, the Company is precluded from repurchasing
Class A Shares or Class B Shares. Failure to maintain covenant compliance could
have an adverse effect upon the continued availability of loan funds or the
terms upon which loan funds would continue to be available, and the impact could
be material.
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YOUR DEPOSIT ACCOUNT WILL BE AN UNSECURED OBLIGATION.
Your investment in a deposit account will not be secured by any lien upon any
assets of Unified. The outstanding amount of senior indebtedness to which the
required deposits is subordinated aggregated approximately $282 million at March
29, 2003.
RATIO OF EARNINGS TO FIXED CHARGES
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Twenty-six weeks Fiscal Year
ended ______________________________________
March 29,
________________
2003 2002 2001 2000 1999 1998
---- ---- ---- ---- ---- ----
Ratio of earnings to fixed
charges(1)..................... 1.83 1.79 1.44 1.41 2.27 2.22
____________________________
</table>
(1) Adjusted earnings used in computing the ratio of earnings to fixed
charges consist of earnings from continuing operations, before income
taxes (benefit), and patronage dividends plus amortization of capitalized
interest and fixed charges less interest capitalized. Fixed charges
consist of the sum of the portion of rental expense that is
representative of the interest factor, interest expense (including
amortization of deferred financing costs) and capitalized interest.
DESCRIPTION OF DEPOSIT ACCOUNTS
GENERAL
Most of the Company's patrons are required to maintain deposits with Unified in
amounts specified by the Company's Board of Directors in proportion to the
volume of purchases made from Unified and may also maintain deposits with
Unified in excess of such required amounts. All such deposits of a patron are
maintained in the patron's deposit account. The amount of the required deposit
account for most patrons is equal to the greater of twice the amount of the
patron's average weekly purchases or twice the amount of the patron's average
purchases if purchases are not on a regular basis. Former United shareholders
that did not have sufficient amounts in their deposit accounts immediately
following the Merger were provided with alternatives to eliminate the deficiency
over time. Over time, the requirement for a member-patron to maintain the
subordinated deposit account may be eliminated if the member-patron holds
sufficient Class B Shares to satisfy the deposit requirement. This is
accomplished by acquiring and holding Class B Shares with initial issuance
values equal in the aggregate to the dollar value of the required cash deposit.
The initial issuance value of Class B Shares is equal to the purchase price for
the shares, which fluctuates. For example, if a member-patron acquired 100 Class
B Shares in year 1 at a purchase price of $100 per share and acquired 100 Class
B Shares in year 2 at a purchase price of $200 per share, the combined initial
issuance values of the 200 Class B Shares would be $30,000. Those Class B Shares
with initial issuance values totaling $30,000 may be applied to satisfy, in
whole or in part, the deposit requirement.
Unified requires that each patron meet the minimum purchase requirements
established by the Board of Directors. Currently, Unified's minimum purchase
requirement for member-patrons is $5,000 per week and $3,500 per week for
associate-patrons. In order to qualify for and retain member-patron status and
become a shareholder of the Company, a person or other entity (1) must patronize
Unified in amounts and in a manner as is established by the Board of Directors;
(2) must have approved financial standing; (3) must make application in such
form as is prescribed by Unified; and (4) must be accepted as a member only
after approval by the Board of Directors.
Patrons are required to execute subordination agreements providing for the
pledging of their deposit accounts to Unified and the subordination of the
patron's right to repayment of its deposit to the prior payment in full of
senior indebtedness of Unified. As described below under the caption
"Subordination," the subordination agreements executed by patrons on and after
January 14, 1994 differ from the subordination agreements which have been
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executed by patrons before January 14, 1994. Thus, persons or entities who
become member-patrons or associate-patrons on or after January 14, 1994 are
required to execute the new subordination agreements. In addition, patrons who
executed subordination agreements before January 14, 1994 may be required to
execute the new subordination agreements if there is a change in the patron's
business form. For example, in the event of a change in a patron which is a
proprietorship or partnership, or a change in the stock ownership of a patron
which is a corporation, Unified may require the execution of a new subordination
agreement.
Amounts in the deposit accounts are not segregated from other funds of Unified.
The deposit accounts are recorded in Unified's records by means of book entries,
and no note, certificate or other instrument is issued as evidence of the
deposit accounts. After the close of each fiscal year, we provide each patron
with a statement showing patronage dividends allocated to the patron's deposit
account. In addition, written inquiry concerning the deposit accounts and other
additions to the account, as well as withdrawals and charges and the account
balance, may be made at any time, and telephone inquiry may be made at any time
during normal business hours. Our policies regarding deposits are subject to
change by the Board of Directors, which may, in its discretion, add to,
increase, decrease, limit, eliminate or otherwise change such policies.
SUBORDINATION
As described below in this section, the subordination of the portion of the
deposit accounts which consists of required deposits will differ depending upon
whether a patron executes a subordination agreement on or after January 14, 1994
or has executed a subordination agreement before that date. Patrons may have
amounts in their deposit accounts that exceed the required amounts if the
patrons' purchases during the period when the required deposit amount is
determined have declined from the previous measuring period or the patrons have
received cash patronage dividends deposited into the patrons' deposit accounts,
which causes the account balance to exceed the required deposit level.
SUBORDINATION AGREEMENTS EXECUTED ON OR AFTER JANUARY 14, 1994.
With respect to patrons who execute subordination agreements on or after January
14, 1994, the portion of the deposit account of that patron which consists of
required deposits will, under the terms of the subordination agreements, be
subordinated and subject in right of payment to payment in full of all senior
indebtedness of Unified. As to patrons who execute subordination agreements on
or after January 19, 1994, the term "senior indebtedness" means all principal
indebtedness, liabilities or obligations of Unified, contingent or otherwise,
whether existing on the date of execution of the subordination agreement or
incurred after execution of the subordination agreement:
o in respect of borrowed money;
o evidenced by bonds, notes, debentures or other instruments of
indebtedness;
o evidenced by letters of credit, bankers' acceptances or similar
credit instruments;
o in respect of capitalized lease obligations;
o in respect of the deferred purchase price of property or
assets, whether real, personal, tangible or intangible, or in
respect of any mortgage, security agreement, title retention
agreement or conditional sale contract;
o in respect of any interest rate swap agreement, interest rate
collar agreement or other similar agreement or arrangement
designed to provide interest rate protection;
o in respect of all indebtedness, liabilities or obligations of
others of any of the types referred to above for which Unified
is responsible or liable as obligor, guarantor or otherwise or
in respect of which recourse may be had against any of the
property or assets, whether real, personal, tangible or
intangible, of Unified; and
o in respect of all modifications, renewals, extensions,
replacements and refundings of any indebtedness, liabilities or
obligations of any of the types described above;
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provided, however, that the term "senior indebtedness" shall not mean any
indebtedness, liabilities or obligations of Unified, contingent or otherwise,
whether existing on the date of execution of the subordination agreement or
incurred after execution of the subordination agreement, (a) to trade creditors
arising or incurred in the ordinary course of Unified's business, (b) in respect
of any redemption, repurchase or other payments on capital stock, (c) in respect
of patron's deposits or (d) in respect of patronage dividend certificates.
For purposes of the above definition of senior indebtedness,
o "capitalized lease obligations" means the discounted present
value of the rental obligations of any person or entity under
any lease of any property which, in accordance with generally
accepted accounting principles, has been recorded on the
balance sheet of such person or entity as a capitalized lease;
o "Patrons' deposits" means the deposits from time to time
required to be made or maintained with us by our patrons or
customers in accordance with our bylaws as in effect from time
to time or in accordance with the policies for the servicing of
accounts of patrons or customers established from time to time
by us, and any deposits from time to time made or maintained
with us by our patrons or customers in excess of such required
deposits; and
o "Patronage dividend certificates" means any notes, revolving
fund certificates, retain certificates, certificate of
indebtedness, patronage dividend certificates or any other
written evidences of indebtedness of Unified at any time
outstanding which evidence the indebtedness of Unified
respecting the distribution by Unified of patronage dividends.
The subordination agreements provide that in the event of any insolvency or
bankruptcy proceedings relative to Unified or its property, any receivership,
liquidation, reorganization, arrangement or other similar proceedings, or in the
event of any proceedings for voluntary liquidation, dissolution or other winding
up of Unified, the holders of senior indebtedness shall be entitled to receive
payment in full, whether accrued prior or subsequent to the commencement of the
proceedings, before any payment is made with respect to that portion of the
deposit accounts which consists of required deposits. By reason of the
subordination, in the event of insolvency, creditors of Unified who are holders
of senior indebtedness may recover more ratably than holders of the deposit
accounts. In addition:
o no payment shall be made with respect to that portion of the
deposit accounts which consists of required deposits in the
event and during the continuation of any default in the payment
of any senior indebtedness; and
o in the event any default, other than those referred to directly
above, shall occur and be continuing with respect to any senior
indebtedness permitting the holders of such senior indebtedness
to accelerate the maturity thereof, no payment shall be made
with respect to that portion of the deposit accounts which
consists of required deposits during any period (a) of 180 days
after the giving of written notice of such default by the
holders of such senior indebtedness to Unified, or (b) in which
judicial proceedings shall be pending in respect of such
default, a notice of acceleration of the maturity of such
senior indebtedness shall have been transmitted to Unified in
respect of such default and such judicial proceedings shall be
diligently pursued in good faith. With respect to clause (a)
above, only one such notice shall be given in any twelve
consecutive months.
SUBORDINATION AGREEMENTS EXECUTED PRIOR TO JANUARY 14, 1994.
With respect to patrons who executed subordination agreements prior to January
14, 1994 and who do not execute new subordination agreements after that date,
the portion of the deposit account of each patron which consists of required
deposits is, under the terms of the subordination agreements, subordinated and
subject in right of payment to the prior payment in full of the principal of,
and premium, if any, and interest upon all senior indebtedness. As to these
patrons, the term "senior indebtedness" means:
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o any and all indebtedness of Unified which may from time to time
be outstanding as shall be payable with respect to short term
notes and other commercial paper issued by Unified and which
are rated by a nationally recognized securities rating agency;
o any and all indebtedness, whether contingent or otherwise, of
Unified which may from time to time be outstanding and be
payable to any bank, insurance company, or other financial
institution; and
o any and all indebtedness of others which may from time to time
be guaranteed by Unified and is payable to any bank, insurance
company or other financial institution.
The subordination agreements provide that upon any distribution of the assets of
Unified upon any voluntary or involuntary dissolution, winding up or
liquidation, reorganization, readjustment, arrangement, or similar proceedings,
relating to Unified or its property, whether or not Unified is a party, and
whether in bankruptcy, insolvency or receivership proceedings or otherwise, or
on any assignment by Unified for the benefit of creditors, or upon any other
marshaling of the assets and liabilities of Unified, all senior indebtedness
shall be paid in full, or provision made for such payment satisfactory to the
holders of the senior indebtedness, before any payment is made on account of the
principal of or interest, if any, on that portion of the deposit accounts which
consists of required deposits. By reason of such subordination, in the event of
insolvency, creditors of Unified who are holders of senior indebtedness may
recover more ratably than holders of the deposit accounts. In addition, no
payment shall be made on account of the principal of or interest, if any, on
that portion of any deposit account which consists of required deposits, if:
o there shall have occurred a default in payment in the principal
of, or premium, if any, or interest on any senior indebtedness;
or
o there shall have occurred any other event of default with
respect to any senior indebtedness, permitting the holders to
accelerate the maturity of the indebtedness and if written
notice of election so to accelerate shall have been given to
Unified by the holder or holders of such senior indebtedness or
their representative or representatives; or
o payment on account of principal of or interest, if any, on that
portion of any deposit account which consists of required
deposits would itself constitute an event of default with
respect to any senior indebtedness, unless or until such event
of default described above shall have been cured or waived or
shall have ceased to exist.
NO LIMIT ON SENIOR INDEBTEDNESS.
There is no limitation on the creation of additional senior indebtedness by
Unified. The outstanding amount of senior indebtedness to which the required
deposits of patrons is subordinated aggregated approximately $282 million as of
March 29, 2003.
INTEREST
That portion of the deposit accounts which consists of required deposits is
non-interest bearing. While the Board of Directors of Unified could, in its sole
discretion, authorize the payment of interest on such portion, it has no present
plans to do so.
Except for deposits under Unified's price reservation program, Unified currently
pays interest on cash amounts in the deposit accounts which are in excess of
required deposits at rates established by the Board of Directors from time to
time. The current rate of interest established by the Board of Directors is the
prime rate established by Union Bank and as in effect on the 25th day of the
preceding calendar month, or, if not then available for any reason, on the next
succeeding day when such rate is available. However, if such rate is not
available for any reason prior to the beginning of the applicable fiscal month,
the rate used for the previous fiscal month will continue to be used. Interest
for a fiscal month will be paid only on those amounts which do not consist of
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required deposits and which are in the deposit accounts during the entire fiscal
month. Such interest will not be compounded. Such interest will be paid to the
patron semi-annually by Unified in March and September of each year. However,
upon request of the patron, such interest will be paid by credit to the patron's
deposit account.
The payment of interest on that portion of the deposit accounts which does not
consist of required deposits may be changed or eliminated at any time in the
discretion of the Board of Directors.
REPAYMENT
Upon request, Unified will return to patrons the amount of their deposit
accounts which is in excess of the portion which consists of required deposits,
provided that the patron is not in default in its obligations to Unified or any
of its subsidiaries.
On termination of membership of a member-patron or on an associate patron
ceasing to do business with Unified, Unified will return the deposit account,
less all amounts that may be owing to Unified and any of its subsidiaries. In
all cases, however, return of that portion of the deposit account which consists
of required deposits will be governed by the subordination provisions to which
it is subject and will be returned only to the extent permitted by the
subordination provisions.
Since the deposit accounts are not segregated from Unified's other funds,
Unified's liquidity might be adversely affected if Unified were required to
return a substantial amount of the deposit accounts at one time or over a brief
period of time. While Unified's liquidity has not been adversely affected in the
past as a result of the return of deposits to patrons, there can be no assurance
that Unified's liquidity would not be adversely affected in the future as a
result of the return to patrons of a substantial amount of deposit accounts. In
addition, Unified has not established any reserves to provide for the repayment
of deposit accounts, nor are the deposit accounts secured obligations of
Unified. Thus, in the event a substantial amount of deposit accounts were
required to be repaid by Unified at one time or over a brief period of time, or
in the event Unified were to experience financial difficulties or to become
insolvent, there can be no assurance respecting Unified's ability to repay the
deposit accounts and respecting the ability of Unified's patrons to recover the
amount of their deposit accounts.
RELATIONSHIP TO CLASS B SHARES
Unified requires each member-patron to acquire, over time, its Class B Shares
having combined issuance values in an amount equal to the lesser of (a) the
amount of the member-patron's required deposit account or (b) twice the
member-patron's average weekly purchases. Inasmuch as the Class B Shares of
Unified (as well as the Class A Shares) will be held as security for the
performance of the member-patron's obligations, in calculating each
member-patron's required deposit, credit is presently given based upon the
combined issuance values of the Class B Shares held. Thus, it will be possible
for a member-patron to withdraw cash from the deposit as Class B Shares are
issued. Unified's policies regarding deposits, issuance of Class B Shares and
credits against deposits as a result of issuance of Class B Shares are subject
to change by the Board of Directors, which may, in its discretion, add to,
increase, decrease, limit, eliminate or otherwise change such policies.
OTHER SIGNIFICANT ASPECTS
The deposit accounts are not secured by any lien upon any assets of Unified.
They are nontransferable without the consent of Unified, which will normally be
withheld. Patrons will be required to pledge their deposit accounts to Unified
as security for their obligations to Unified and its subsidiaries.
METHOD OF OFFERING
As a condition of doing business with Unified, patrons are normally required to
have executed subordination agreements providing for the maintenance of deposit
accounts with Unified, the pledging of their deposit accounts to Unified to
secure their obligations to Unified and its subsidiaries, and the subordination
of that portion of their deposit accounts which consists of required deposits.
Such persons or entities who from time to time may be accepted as new patrons of
Unified may be required, as a condition of acceptance, to execute subordination
agreements, which will be effective from and after their date of execution,
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providing for the maintenance of deposit accounts with Unified, the pledging of
their deposit accounts to Unified to secure their obligations to Unified and its
subsidiaries, and the subordination of that portion of their deposit accounts
which consists of required deposits. See "DESCRIPTION OF DEPOSIT
ACCOUNTS--Subordination."
The offering of the deposit accounts is made by Unified only through its regular
employees who will not receive any additional remuneration in connection
therewith.
USE OF PROCEEDS
To the extent that deposit accounts of patrons increase in amount and to the
extent that deposit accounts are opened and maintained in connection with the
acceptance of new patrons, proceeds to Unified will be utilized as working
capital.
EXPERTS
The financial statements and the related financial statement schedule
incorporated in this prospectus by reference from the Company's Annual Report on
Form 10-K for the year ended September 28, 2002 have been audited by Deloitte &
Touche LLP, independent auditors, as stated in their report, which is
incorporated herein by reference, (which report expresses an unqualified opinion
and includes explanatory paragraphs relating to the Company effecting a
quasi-reorganization in September 2002 and the adoption of Statement of
Financial Accounting Standards No. 133 "Accounting for Derivative Instruments
and Hedging Activities" effective October 1, 2000) and have been so incorporated
in reliance upon the report of such firm given upon their authority as experts
in accounting and auditing.
FORWARD-LOOKING INFORMATION
This document and the documents of Unified incorporated by reference may contain
"forward-looking statements" within the meaning of the Private Securities
Litigation Reform Act of 1995. These statements relate to expectations
concerning matters that (a) are not historical facts, (b) predict or forecast
future events or results, (c) embody assumptions which may prove to have been
inaccurate, including Unified's assessment of the probability and materiality of
losses associated with litigation and other contingent liabilities; and
Unified's expectations regarding the adequacy of capital and liquidity. Also,
when we use words such as "believes," "expects," "anticipates" or similar
expressions, we are making forward-looking statements. Although Unified believes
that the expectations reflected in such forward-looking statements are
reasonable, we cannot give you any assurance that such expectations will prove
correct. Important factors that could cause actual results to differ materially
from such expectations include the adverse effects of the changing industry
environment and increased competition; sales decline and loss of customers;
exposure to the uncertainties of litigation and other contingent liabilities;
the ability of Unified to close and sell its discontinued operations within the
parameters of the estimates made with respect to the closure or sale; the
inability of the Company to establish and perform plans to improve its operating
performance and equity base in order to meet financial covenants applicable to
future periods; and the increased credit risk to Unified caused by the ability
of former United Grocers, Inc. members to establish their required minimum
deposits over time through use of patronage dividends to purchase Class B Shares
if such members default on their obligations to Unified prior to their deposit
requirements being met and the existing deposit proves inadequate to cover such
members' obligations. All forward-looking statements attributable to Unified are
expressly qualified in their entirety by the factors which may cause actual
results to differ materially.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the expenses expected to be incurred in
connection with the offering described in this registration statement. All
amounts are estimated except the Securities and Exchange Commission registration
fee.
Securities and Exchange Commission registration fee........ $ 7,170
Printing, Engraving and Reproduction....................... 20,000
Expenses of Qualification Under State Blue Sky Laws........ 5,000
Legal Fees and Expenses.................................... 25,000
Accounting Fees and Expenses............................... 10,000
Miscellaneous.............................................. 10,000
------
Total...................................................... $77,170
=======
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Article V of the Unified's Bylaws provides that Unified shall, to the maximum
extent permitted by law, have the power to indemnify its directors, officers,
employees and other agents. Section 317 of the California General Corporation
Law provides that a corporation has the power to indemnify agents of the
corporation against expenses, judgments, fines, settlements and other amounts
actually and reasonably incurred in connection with any proceeding arising by
reason of the fact that any such person is or was an agent of the corporation.
Unified has entered into agreements with each of its directors and certain of
its officers which provide to such directors and officers the maximum
idemnification allowed under applicable law. In addition, Unified and its
subsidiaries maintain a policy of directors' and officers' liability and company
reimbursement insurance.
ITEM 16. EXHIBITS
4.1 Retail Grocer Application and Agreement for Continuing Service
Affiliation With Unified Western Grocers, Inc. and Pledge Agreement
(incorporated by reference to Exhibit 4.7 to Amendment No. 2 to Form S-1
Registration Statement of the Registrant filed on December 31, 1981, File
No. 2-70069).
4.2 Retail Grocer Application And Agreement For Service Affiliation With And
The Purchase Of Shares Of Unified Western Grocers, Inc. and Pledge
Agreement (incorporated by reference to Exhibit 4.2 to Post Effective
Amendment No. 7 to Form S-2 Registration Statement of the Registrant
filed on December 13, 1989, File No. 33-19284).
4.3 Copy of Application and Agreement for Service Affiliation as a Member
Patron/Affiliate with Unified Western Grocers, Inc. and Pledge and
Security Agreement (incorporated by reference to Exhibit 4.1 to the
Registrant's Quarterly Report on Form 10-Q for the fiscal quarter ended
April 1, 2000, file No. 000-10815).
4.4 Copy of Application and Agreement for Service Affiliation as an Associate
Patron with Unified Western Grocers, Inc. and Pledge and Security
Agreement (incorporated by reference to Exhibit 4.2 to the Registrant's
Quarterly Report on Form 10-Q for the fiscal quarter ended April 1, 2000,
file No. 000-10815).
4.5 Agreement respecting directors' shares (incorporated by reference to
Exhibit 4.9 to Amendment No. 2 to Form S-1 Registration Statement of the
Registrant filed on December 31, 1981, File No. 2-70069).
4.6 Subordination Agreement (Member-Patron-1988) (incorporated by reference
to Exhibit 4.4 to Post-Effective Amendment No. 4 to Form S-2 Registration
Statement of the Registrant filed on July 15, 1988, File No. 33-19284).
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4.7 Subordination Agreement (Associate Patron-1988) (incorporated by
reference to Exhibit 4.5 to Post-Effective Amendment No. 4 to Form S-2
Registration Statement of the Registrant filed on July 15, 1988, File No.
33-19284).
4.8 Subordination Agreement (New Member-Patron-1988) (incorporated by
reference to Exhibit 4.6 to Post-Effective Amendment No. 4 to Form S-2
Registration Statement of the Registrant filed on July 15, 1988, File No.
33-19284).
4.9 Subordination Agreement (New Associate Patron-1988) (incorporated by
reference to Exhibit 4.7 to Post-Effective Amendment No. 4 to Form S-2
Registration Statement of the Registrant filed on July 15, 1988, File No.
33-19284).
4.10 Copy of Member Patron/Affiliate Subordination Agreement (Subordination of
Required Deposit) (incorporated by reference to Exhibit 4.10 to
Registrant's Form 10-K for the fiscal year ended September 29, 2001 filed
on December 27, 2001, File No. 1-10815).
4.11 Copy of Associate-Patron Subordination Agreement (Subordination of
Required Deposit Agreement (incorporated by reference to Exhibit 4.11 to
Registrant's Form 10-K for the fiscal year ended September 29, 2001 filed
on December 27, 2001, File No. 1-10815).
4.12 Form of Class A Share Certificate (incorporated by reference to Exhibit
4.12 to the Registrant's Annual Report on form 10-K for the fiscal year
ended September 30, 2000, filed on December 26, 2000, file No. 0-10815).
4.13 Form of Class B Share Certificate (incorporated by reference to Exhibit
4.13 to the Registrant's Annual Report on form 10-K for the fiscal year
ended September 30, 2000, filed on December 26, 2000, file No. 0-10815).
4.14 Articles FIFTH and SIXTH of the Registrant's Articles of Incorporation
(incorporated by reference to Exhibit 3.1 to the Registrant's Quarterly
Report on Form 10-Q filed on May 12, 2003, File No. 0-10815).
4.15 Article I, Section 5, and Article VII of the Registrant's Bylaws
(incorporated by reference to Exhibit 3.2 to the Registrant's Quarterly
Report on Form 10-Q filed on May 12, 2003, File No. 0-10815).
4.16 Amended and Restated Loan Purchase and Servicing Agreement Dated as of
December 7, 2001 between Grocers Capital Company and National Consumer
Cooperative Bank (incorporated by reference to Exhibit 10.1 to the
Registrant's Annual Report on Form 10-K for the fiscal year ended
September 28, 2002, filed on January 13, 2003, File No. 0-10815).
4.17 Amended and Restated Credit Agreement dated as of December 7, 2001 among
Grocers Capital Company, the lenders listed therein and National
Cooperative Bank, as agent (incorporated by reference to Exhibit 10.1 to
the Registrant's Annual Report on Form 10-K for the fiscal year ended
September 28, 2002, filed on January 13, 2003, File No. 0-10815).
4.18 Amended and Restated Loan Purchase Agreement (Existing Program) dated
January 30, 1998 among United Resources, Inc., United Grocers, Inc.
(predecessor-in-interest to the Registrant) and National Consumer
Cooperative Bank (incorporated by reference to Exhibit 4.D1 to United
Grocers, Inc. Annual Report on Form 10-K for the fiscal year ended
October 2, 1998 filed on January 30, 1999, File No. 002-60487, as
amended).
4.19 Amended and Restated Loan Purchase Agreement (Holdback Program) dated
January 30, 1998 among United Resources, Inc., United Grocers, Inc.
(predecessor-in-interest to the Registrant) and National Consumer
Cooperative Bank (incorporated by reference to Exhibit 4.D2 to United
Grocers, Inc. Annual Report on Form 10-K for the fiscal year ended
October 2, 1998 filed on January 30, 1999, File No. 002-60487, as
amended).
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4.20 Guarantee dated September 29, 1999 by the Registrant of debt securities
of United Grocers, Inc. (predecessor-in-interest to the Registrant)
issued pursuant to that certain Indenture dated as of February 1, 1978,
and as subsequently amended and supplemented, by and between United
Grocers, Inc., and State Street Bank and Trust Company (incorporated by
reference to Exhibit 4.1 to the Registrants Current Report on Form 8-K
filed on October 13, 1999, File No. 000-10815).
4.21 Note purchase Agreement dated as of September 29, 1999 by and among
Registrant and the persons listed on Schedule I thereto (incorporated by
reference to Exhibit 10.1 to the Registrant's Current report on Form 8-K
filed on October 13, 1999, File No. 000-10815).
4.22 Amendment No. 1 and Limited Waiver to Note Purchase Agreement, dated as
of September 14, 2000, by and among Registrant and the Noteholders listed
on the signature pages thereto (incorporated by reference to Exhibit 4.24
to the Registrant's Annual Report on form 10-K for the fiscal year ended
September 30, 2000, filed on December 26, 2000, file No. 0-10815).
4.23 Second Amendment to Note Purchase Agreement and Notes dated as of March
27, 2002 by and among the Registrant and the Noteholders on the signature
pages thereto (incorporated by reference to Exhibit 4.24.1 to the
Registrant's Quarterly Report on Form 10-Q for the fiscal quarter ended
March 30, 2002, filed on May 14, 2002, file No. 0-10815).
4.24 Third Amendment to Note Purchase Agreement and Notes dated as of December
31, 2002 by and among the Registrant and the Noteholders on the signature
pages thereto (incorporated by reference to Exhibit 10.1 to the
Registrant's Annual Report on Form 10-K for the fiscal year ended
September 28, 2002, filed on January 13, 2003, File No. 0-10815)
4.25 Secured Revolving Credit Agreement dated as of September 29, 1999, by and
among Registrant, the Lenders named therein and Rabobank Nederland, New
York Branch (incorporated by reference to Exhibit 10.2 to the
Registrant's Current report on Form 8-K filed on October 13, 1999, File
No. 000-10815).
4.26 Amendment No. 1 to Secured Revolving Credit Agreement dated as of
November 18, 1999 by and among Registrant, the Lenders named therein and
Rabobank Nederland, New York Branch (incorporated by reference to Exhibit
4.26 to the Registrant's Annual Report on form 10-K for the fiscal year
ended September 30, 2000, filed on December 26, 2000, file No. 0-10815).
4.27 Amendment No. 2 and Limited Waiver to Secured Revolving Credit Agreement
dated as of July, 2000 by and among Registrant, the Lenders named therein
and Rabobank Nederland, New York Branch (incorporated by reference to
Exhibit 4.27 to the Registrant's Annual Report on form 10-K for the
fiscal year ended September 30, 2000, filed on December 26, 2000, file
No. 0-10815).
4.28 Amendment No. 3 to Secured Revolving Credit Agreement dated as of
December 7, 2001 by and among the Registrant, the Lenders named therein
and Rabobank Nederland, New York Branch (incorporated by reference to
Exhibit 4.27.1 to the Registrant's Annual Report on Form 10-K for the
fiscal year ended September 29, 2001, filed on December 27, 2001, file
No. 0-10815).
4.30 Copy of indenture dated as of February 1, 1978, between Unified Western
Grocers, Inc. (as successor to United Grocers, Inc.) and United States
National Bank of Oregon, as trustee, relating to Unified Western Grocers,
Inc.'s Capital Investment Notes (incorporated by reference to Exhibit 4-1
to United Grocers, Inc.'s registration Statement on Form S-1, No.
2-60488).
4.31 Copy of supplemental indenture dated as of January 27, 1989, between
Unified Western Grocers, Inc. (as successor to United Grocers, Inc.) and
United States National Bank of Oregon, as trustee, relating to Unified
Western Grocers, Inc.'s Series F 5% Subordinated Redeemable Capital
Investment Notes (incorporated by reference to Exhibit 4-G to the United
Grocers, Inc. Form 10-K for the fiscal year ended September 30, 1989).
4.32 Copy of supplemental indenture dated as of January 22, 1991, between
Unified Western Grocers, Inc. (as successor to United Grocers, Inc.) and
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United States National Bank of Oregon, as trustee, relating to Unified
Western Grocers, Inc.'s Series G 5% Subordinated Redeemable Capital
Investment Notes (incorporated by reference to Exhibit 4-D to the United
Grocers, Inc. Registration Statement on Form S-2, No. 33-38617).
4.33 Copy of supplemental indenture dated as of July 6, 1992, between Unified
Western Grocers, Inc. (as successor to United Grocers, Inc.) and United
States National Bank of Oregon, as trustee, relating to Unified Western
Grocers, Inc.'s Series H 5% Subordinated Redeemable Capital Investment
Notes (incorporated by reference to Exhibit 4-C to the United Grocers,
Inc. Registration Statement on Form S-2, No. 33-49450).
4.34 Copy of supplemental indenture dated as of January 9, 1995, between
Unified Western Grocers, Inc. (as successor to United Grocers, Inc.) and
First Bank National Association, as trustee, relating to Unified Western
Grocers, Inc.'s Series J 5% Subordinated Redeemable Capital Investment
Notes (incorporated by reference to Exhibit 4-C to the United Grocers,
Inc. Registration Statement on Form S-2, No. 33-57199).
4.35 Form of Indenture between the Registrant and U.S. Bank, N.A., as Trustee,
relating to $4,000,000 Subordinated Patronage Dividend Certificates Due
December 15, 2007 (incorporated by reference to Exhibit 4.35 to the
Registrant's Registration Statement on Form S-2, No. 333-103535).
4.36 Form of Subordinated Patronage Dividend Certificate Due December 15, 2007
(included in Exhibit 4.35).
5.1 Opinion of Sheppard, Mullin, Richter & Hampton LLP (previously filed).
10.1 Amended and Restated Unified Western Grocers, Inc. Cash Balance Plan
effective January 1, 2002, as amended (incorporated by reference to
Exhibit 10.1 to the Registrant's Annual Report on Form 10-K for the
fiscal year ended September 28, 2002, filed on January 13, 2003, File No.
0-10815).
10.2 Amended and Restated Deferred Compensation Plan dated as of May 1, 1999
(incorporated by reference to Exhibit 10.2 to the Registrant's Annual
Report on Form 10-K for the fiscal year ended August 28, 1999 filed on
November 14, 1999, File No. 0-10815).
10.3 Amended and Restated Unified Western Grocers, Inc. Employees' Sheltered
Savings Plan (incorporated by reference to Exhibit 10.1 to the
Registrant's Quarterly Report on Form 10-Q for the fiscal quarter ended
December 29, 2001 filed on February 19, 2002, File No. 0-10815).
10.4.1 Unified Western Grocers, Inc., Executive Salary Protection Plan II ("ESPP
II"), Master Plan Document, effective January 4, 1995 (incorporated by
reference to Exhibit 10.4 to the Registrant's Annual Report on Form 10-K
for the fiscal year ended September 2, 1995 filed on December 1, 1995,
File No. 0-10815).
10.4.2 Amendment No. 1999-I to Unified Western Grocers, Inc. Executive Salary
Protection Plan II, effective as of January 1, 1999 (incorporated by
reference to Exhibit 10.5 to the Registrant's Form 10-Q for the quarterly
period ended December 31, 2000, filed on February 13, 2001, File No.
0-10815).
10.4.3 Amendment No. 2000-I to Unified Western Grocers, Inc. Executive Salary
Protection Plan II, effective as of January 1, 2000 (incorporated by
reference to Exhibit 10.6 to the Registrant's Form 10-Q for the quarterly
period ended December 31, 2000, filed on February 13, 2001, File No.
0-10815).
10.5 Master Trust Agreement For Unified Western Grocers, Inc. Executive Salary
Protection Plan II, dated as of April 28, 1995 (incorporated by reference
to Exhibit 10.5 to the Registrant's Annual Report on Form 10-K for the
fiscal year ended September 2, 1995 filed on December 1, 1995, File No.
0-10815).
10.6 Unified Western Grocers, Inc. Executive Insurance Plan Split dollar
Agreement and Schedule of Executive Officers party thereto (incorporated
by reference to Exhibit 10.6 to the Registrant's Annual Report on Form
10-K for the fiscal year ended September 2, 1995 filed on December 1,
1995, File No. 0-10815).
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10.7 Comprehensive Amendment to Unified Western Grocers, Inc. Employees'
Excess Benefit Plan dated as of December 5, 1995 (incorporated by
reference to Exhibit 10.7 to the Registrant's Annual Report on Form 10-K
for the fiscal year ended August 30, 1997 filed on November 28, 1997,
File No. 0-10815).
10.8 Comprehensive Amendment to Unified Western Grocers, Inc. Employees'
Supplemental Deferred Compensation Plan dated as of December 5, 1995
(incorporated by reference to Exhibit 10.8 to the Registrant's Annual
Report on Form 10-K for the fiscal year ended August 30, 1997 filed on
November 28, 1997, File No. 0-10815).
10.9 Amended and Restated Unified Western Grocers, Inc. Employee Savings Plan
(incorporated by reference to Exhibit 10.2 to the Registrant's Quarterly
Report on Form 10-Q for the fiscal quarter ended December 29, 2001 filed
on February 19, 2002, File No. 0-10815).
10.10 Unified Western Grocers, Inc. Early Retirement Program (incorporated by
reference to Exhibit 10.28 to the Form S-4 Registration Statement filed
on August 26, 1999, File No. 333-05917).
10.11 Lease, dated as of December 23, 1986, between Cercor Associates and
Grocers Specialty Company (incorporated by reference to Exhibit 10.8 to
Form S-2 Registration Statement of the Registrant filed on September 2,
1993. File No. 33-68288).
10.12 Expansion Agreement, dated as of May 1, 1991, and Industrial Lease, dated
as of May 1, 1991, between Dermody Properties and the Registrant
(incorporated by reference to Exhibit 10.9 to Form S-2 Registration
Statement of the Registrant filed on September 2, 1993. File No.
33-68288).
10.13 Lease Amendment, dated June 20, 1991, between Dermody Properties and the
Registrant (incorporated by reference to Exhibit 10.9.1 to Form S-2
Registration Statement of the Registrant filed on September 2, 1993. File
No. 33-68288).
10.14 Lease Amendment, dated October 18, 1991, between Dermody Properties and
the Registrant (incorporated by reference to Exhibit 10.9.2 to Form S-2
Registration Statement of the Registrant filed on September 2, 1993. File
No. 33-68288).
10.15 Commercial Lease-Net dated December 6, 1994 between TriNet Essential
Facilities XII and the Registrant (incorporated by reference to Exhibit
10.17 to the Registrant's Annual Report on Form 10-K for the fiscal year
ended September 2, 1995 filed on December 1, 1995, File No. 0-10815).
10.16 Purchase Agreement dated November 21, 1994 between the Registrant and
TriNet Corporate Realty Trust, Inc. (incorporated by reference to Exhibit
10.18 to the Registrant's Annual Report on Form 10-K for the fiscal year
ended September 2, 1995 filed on December 1, 1995, File No. 0-10815).
10.17 Form of Employment Agreement between the Company and Alfred A. Plamann
(incorporated by reference to Exhibit 10.19 to Form S-4 Registration
Statement of the Registrant filed on August 26, 1999, File No.
333-85917).
10.18 Amendment to Employment Agreement dated as of August, 1999, between the
Registrant and Alfred A. Plamann (incorporated by reference to Exhibit
10.27 to Form S-4 Registration Statement of the Registrant filed on
August 26, 1999, File No. 333-85917).
10.19 Second Amendment to Employment Agreement dated as of April, 2001, between
registrant and Alfred A. Plamann (incorporated by reference to Exhibit
10.51 to the Registrant's Form 10-Q for the quarterly period ended June
30, 2001, filed on August 14, 2001, file No. 0-10815).
10.20 Form of Indemnification Agreement between the Company and each Director
and Officer (incorporated by reference to Exhibit A to the Registrant's
Proxy Statement dated February 24, 1997 filed on February 24, 1997, File
No. 0-10815).
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10.21 Annual Incentive Plan for Chief Executive Officer (incorporated by
reference to Exhibit 10.23 to the Registrant's Annual Report on Form 10-K
for the fiscal year ended August 30, 1997 filed on November 28, 1997,
File No. 0-10815).
10.22 Annual Incentive Plan for Senior Management (incorporated by reference to
Exhibit 10.24 to the Registrant's Annual Report on Form 10-K for the
fiscal year ended August 30, 1997 filed on November 28, 1997, File No.
0-10815).
10.23 Sublease Agreement dated October 27, 1991 for the Eugene Store between
United Grocers, Inc. (predecessor-in-interest to the Registrant) and a
corporation in which Richard L. Wright, a director of the Registrant, has
an interest (incorporated by reference to Exhibit 10.H1 of United
Grocers, Inc. Annual Report on Form 10-K for the fiscal year ended
October 2, 1998 filed on January 20, 1999, File No. 002-60487).
10.24 Sublease Agreement dated October 27, 1991 for the Cottage Grove Store
between United Grocers, Inc. (predecessor-in-interest to the Registrant)
and a corporation in which Richard L. Wright, a director of the
Registrant, has an interest (incorporated by reference to Exhibit 10.H2
of United Grocers, Inc. Annual Report on Form 10-K for the fiscal year
ended October 2, 1998 filed on January 20, 1999, File No. 002-60487).
10.25 Sublease Agreement dated February 1, 1994 for the Albany Store between
United Grocers, Inc. (predecessor-in-interest to the Registrant) and a
corporation in which Richard L. Wright, a director of the Registrant, has
an interest (incorporated by reference to Exhibit 10.H3 of United
Grocers, Inc. Annual Report on Form 10-K for the fiscal year ended
October 2, 1998 filed on January 20, 1999, File No. 002-60487).
10.26 Sublease Agreement dated July 26, 1979 for the Gold Beach Store between
United Grocers, Inc. (predecessor-in-interest to the Registrant) and
Raymond L. Nidiffer, a holder of more than five percent of the
Registrant's shares (incorporated by reference to Exhibit 10-Q3 of United
Grocers' Registration Statement on Form S-2, File No. 33-26631).
10.27 Assignment of Lease and related documents for Mt. Shasta Store between
United Grocers, Inc. (predecessor-in-interest to the Registrant) and C&K
Market, Inc., an affiliate of Raymond L. Nidiffer (incorporated by
reference to Exhibit 10-Q4 of United Grocers, Inc.'s Registration
Statement on Form S-2, File No. 33-26631).
10.28 Loan guaranties dated June 12, 1980 and September 30, 1988, given by
United Grocers, Inc. (predecessor-in-interest to the Registrant) for the
benefit of C&K Market, Inc., an affiliate of Raymond L. Nidiffer
(incorporated by reference to Exhibit 10-I12 to United Grocer's Form 10-K
for the fiscal year ended September 30, 1989).
10.29 Agreement for Purchase and Sale and Escrow Instructions dated September
17, 1997, between United Grocers, Inc. (predecessor-in-interest to the
Registrant) and C&K Market, Inc., an affiliate of Raymond L. Nidiffer
(incorporated by reference to Exhibit 10.I5 to United Grocers, Inc.'s
Form 10-K for the fiscal year ended October 2, 1998 filed on January 20,
1999, File No. 002-60487).
10.30 Stock Purchase Agreement dated November 17, 1997, by and among United
Grocers, Inc. (predecessor-in-interest to the Registrant) and C&K Market,
an affiliate of Raymond L. Nidiffer (incorporated by reference to Exhibit
10.I6 to Form 10-K of United Grocers, Inc. filed on January 20, 1999,
File No. 002-60487).
10.31 Stock Purchase Agreement dated March 26, 1999 by and among Grocers
Capital Company, K.V. Mart Co., an affiliate of Darioush Khaledi, Khaledi
Family Partnership I, Khaledi Family Trust dated May 17, 1995, and Parviz
Vazin and Vida Vazin (incorporated by reference to Exhibit 10.35 to the
Registrant's Annual Report on form 10-K for the fiscal year ended
September 30, 2000, filed on December 26, 2000, file No. 0-10815).
II-6
10.32 Pledge Agreement dated March 26, 1999 by Khaledi Family Partnership I,
Khaledi Family Trust dated May 17, 1995, and Parviz Vazin and Vida Vazin
in favor of Grocers Capital Company (incorporated by reference to Exhibit
10.36 to the Registrant's Annual Report on form 10-K for the fiscal year
ended September 30, 2000, filed on December 26, 2000, file No. 0-10815).
10.33 Guaranty dated March 26, 1999 by K.V. Mart Co. in favor of Grocers
Capital Company (incorporated by reference to Exhibit 10.37 to the
Registrant's Annual Report on form 10-K for the fiscal year ended
September 30, 2000, filed on December 26, 2000, file No. 0-10815).
10.34 Term Loan Agreement dated as of May 12, 2000 between K.V. Mart Co. and
Unified Western Grocers, Inc. relating to a $7,000,000 Promissory Note
due May 12, 2005 in favor of Unified Western Grocers, Inc. by K.V. Mart
Co. (incorporated by reference to Exhibit 10.38 to the Registrant's Form
10-Q for the quarterly period ended July 1, 2000 filed on August 17,
2000, File No. 0-10815)
10.35 Security Agreement dated as of May 12, 2000 between K.V. Mart Co. and
Unified Western Grocers, Inc. relating to the Term Loan Agreement dated
as of May 12, 2000 between K.V. Mart Co. and Unified Western Grocers,
Inc. (incorporated by reference to Exhibit 10.39 to the Registrant's Form
10-Q for the quarterly period ended July 1, 2000 filed on August 17,
2000, File No. 0-10815)
10.36 Guaranty dated as of May 12, 2000 by Darioush Khaledi and Shahpar
Khaledi, husband and wife, Darioush Khaledi, as Trustee of the Khaledi
Family Trust under Declaration of Trust dated May 17, 1995, K.V. Property
Company, and Parviz Vazin and Vida Vazin in favor of Unified Western
Grocers, Inc. issued pursuant to that certain Term Loan Agreement dated
as of May 12, 2000 between K.V. Mart Co. and Unified Western Grocers,
Inc. (incorporated by reference to Exhibit 10.40 to the Registrant's Form
10-Q for the quarterly period ended July 1, 2000 filed on August 17,
2000, File No. 0-10815).
10.37 Stock Collateral Acknowledgement and Consent dated as of May 12, 2000
executed by the shareholders of K.V. Mart Co. (incorporated by reference
to Exhibit 10.41 to the Registrant's Form 10-Q for the quarterly period
ended July 1, 2000 filed on August 17, 2000, File No. 0-10815).
10.38 Preferred Stock Purchase Agreement by and between C & K Market, Inc. and
Unified Western Grocers, Inc. dated as of December 19, 2000 (incorporated
by reference to Exhibit 10.47 to the Registrant's Form 10-Q for the
quarterly period ended December 31, 2000, filed on February 13, 2001,
File No. 0-10815).
10.39 Shareholders Agreement by and among Unified Western Grocers, Inc., C & K
Market, Inc. and designated shareholders of C & K Market, Inc. dated as
of December 19, 2000 (incorporated by reference to Exhibit 10.48 to the
Registrant's Form 10-Q for the quarterly period ended December 31, 2000,
filed on February 13, 2001, File No. 0-10815).
10.40 Form of Severance Agreement for Executive Vice Presidents with Three
Years or More in an Officer Position executed by Robert M. Ling, Jr.,
Richard J. Martin and Charles J. Pilliter (incorporated by reference to
Exhibit 10.49 to the Registrant's Form 10-Q for the quarterly period
ended December 31, 2000, filed on February 13, 2001, file No. 0-10815).
10.41 Form of Severance Agreement for Vice Presidents, Senior Vice Presidents
and Executive Vice Presidents with Less Than Three Years in an Officer
Position executed by Philip S. Smith, Rodney L. Van Bebber, Daniel J.
Murphy, John C. Bedrosian, William O. Cote, Dirk T. Davis, Luis de la
Mata, Stanley G. Eggink, Joseph L. Falvey, Carolyn S. Fox, Don Gilpin,
Gary C. Hammett, Gary S. Herman, Joseph A. Ney, David A. Woodward
(incorporated by reference to Exhibit 10.50 to the Registrant's Form 10-Q
for the quarterly period ended December 31, 2000, filed on February 13,
2001, file No. 0-10815).
10.42 Form of Subordinated Redemption Note -- Excess Class B Shares
(incorporated by reference to Exhibit 10.50 to Registrant's Form 10-K for
the fiscal year ended September 29, 2001 filed on December 27, 2001, File
No. 1-10815).
10.43 Agreement relating to the Registrant's five-year interest rate collar
(incorporated by reference to Exhibit 10.51 to Amendment No. 2 to
Registrant's Registration Statement on Form S-2 filed on May 1, 2002).
II-7
12.1 Computation of ratio of earnings to fixed charges.
21 Subsidiaries of the Registrant (incorporated by reference to Exhibit 21
to the Registrant's Annual Report on Form 10-K for the fiscal year ended
September 28, 2002, filed on January 13, 2003, File No. 0-10815).
23.1 Consent of Deloitte & Touche LLP.
24.1 Power of Attorney (previously filed).
II-8
ITEM 17. UNDERTAKINGS
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement: (a) to include any
prospectus required by section 10(a)(3) of the Securities Act of 1933, (b) to
reflect in the prospectus any facts or events arising after the effective date
of the registration statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a fundamental change
in the information set forth in the registration statement, (c) to include any
material information with respect to the plan of distribution not previously
disclosed in the registration statement or any material change to such
information in the registration statement;
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof; and
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
(4) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
II-9
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-2 and has duly caused this Post-Effective
Amendment No. 1 to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Commerce, State of California, on June 10, 2003.
UNIFIED WESTERN GROCERS, INC.
By /s/ Robert M. Ling, Jr.
---------------------------------------------------
Robert M. Ling, Jr.
Executive Vice President, General Counsel and Secretary
Pursuant to the requirements of the Securities Act of 1933, this Post-Effective
Amendment No. 1 has been signed by the following persons in the capacities and
on the dates indicated.
<caption>
Signature Title Date
--------- ----- ----
* President and Chief Executive June 10, 2003
- ---------------------------------------- Officer (Principal Executive
Alfred A. Plamann Officer)
* Executive Vice President, June 10, 2003
- ---------------------------------------- Finance and Administration, and
Richard J. Martin Chief Financial Officer
(Principal Financial Officer)
* Vice President and Controller June 10, 2003
- ---------------------------------------- (Principal Accounting Officer)
William O. Cote
* Director June 10, 2003
- ----------------------------------------
Louis A. Amen
* Director June 10, 2003
- ----------------------------------------
David M. Bennett
* Director June 10, 2003
- ----------------------------------------
John Berberian
* Director June 10, 2003
- ----------------------------------------
Edmund K. Davis
Director
- ----------------------------------------
Dieter Huckestein
S-1
* Director June 10, 2003
- ----------------------------------------
Darioush Khaledi
Director
- ----------------------------------------
John D. Lang
* Director June 10, 2003
- ----------------------------------------
Jay T. McCormack
* Director June 10, 2003
- ----------------------------------------
Douglas A. Nidiffer
* Director June 10, 2003
- ----------------------------------------
Peter J. O'Neal
* Director June 10, 2003
- ----------------------------------------
Michael A. Provenzano, Jr.
Director
- ----------------------------------------
Thomas S. Sayles
* Director June 10, 2003
- ----------------------------------------
Mimi R. Song
* Director June 10, 2003
- ----------------------------------------
Robert E. Stiles
* Director June 10, 2003
- ----------------------------------------
Kenneth Ray Tucker
* Director June 10, 2003
- -----------------------------------------
Richard L. Wright
* By: /s/ Robert M. Ling, Jr.
-----------------------
Robert M. Ling, Jr.
Attorney-in-Fact
S-2
INDEX TO EXHIBITS
Exhibit
Number Description
- ------ -----------
12.1 Computation of ratio of earnings to fixed charges.
23.1 Consent of Deloitte & Touche LLP