-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, LqWZieL/jLEXfwa0hZQNU/g5SXyGv/3Ru1YFKMWOto/lJrAT3i6EpiEkeXyBInra dkEohVKRYcuIdZWvz0E/Eg== 0000928385-98-000028.txt : 19980108 0000928385-98-000028.hdr.sgml : 19980108 ACCESSION NUMBER: 0000928385-98-000028 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 4 CONFORMED PERIOD OF REPORT: 19971223 ITEM INFORMATION: ITEM INFORMATION: ITEM INFORMATION: FILED AS OF DATE: 19980107 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: JP FOODSERVICE INC CENTRAL INDEX KEY: 0000928395 STANDARD INDUSTRIAL CLASSIFICATION: WHOLESALE-GROCERIES & GENERAL LINE [5141] IRS NUMBER: 521634568 STATE OF INCORPORATION: DE FISCAL YEAR END: 0629 FILING VALUES: FORM TYPE: 8-K SEC ACT: SEC FILE NUMBER: 001-12601 FILM NUMBER: 98501986 BUSINESS ADDRESS: STREET 1: 9830 PATUXENT WOODS WY CITY: COLUMBIA STATE: MD ZIP: 21046 BUSINESS PHONE: 4103127100 MAIL ADDRESS: STREET 1: 9830 PATUXENT WOODS WAY CITY: COLUMBIA STATE: MD ZIP: 21046 8-K 1 FORM 8-K SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 _______________________________ FORM 8-K CURRENT REPORT Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 Date of Report (Date of earliest event reported): December 23, 1997 JP Foodservice, Inc. ------------------------------------------------------ (Exact name of registrant as specified in its charter) Delaware 0-24954 52-1634568 --------------------------------- ----------- ------------------ (State or other jurisdiction of (Commission (IRS Employer incorporation) File Number) Identification No.) 9830 Patuxent Woods Drive, Columbia, Maryland 21046 ----------------------------------------------------------------------- (Address of principal executive offices) (Zip Code) Registrant's telephone number, including area code: (410) 312-7100 ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS. Effective December 23, 1997, Rykoff-Sexton, Inc., a Delaware corporation ("Rykoff-Sexton"), merged (the "Merger") with and into Hudson Acquisition Corp. ("Merger Sub"), a Delaware corporation and a wholly-owned subsidiary of JP Foodservice, Inc. (the "Registrant"), pursuant to an Agreement and Plan of Merger, dated as of June 30, 1997, as amended as of September 3, 1997 and November 5, 1997, among Rykoff-Sexton, Merger Sub and the Registrant (the "Merger Agreement"). Merger Sub was the surviving corporation in the Merger (the "Surviving Corporation"), was renamed Rykoff-Sexton, Inc. as of the effective time of the Merger (the "Effective Time") and will continue to be a wholly-owned subsidiary of the Registrant. A copy of the press release announcing the consummation of the Merger is filed as Exhibit 99.1 to this Current Report on Form 8-K. At the Effective Time, each issued and outstanding share of Common Stock, par value $.10 per share, of Rykoff-Sexton (the "Rykoff-Sexton Common Shares") (other than Rykoff-Sexton Common Shares, if any, owned by the Registrant, Merger Sub or Rykoff-Sexton, which were canceled) was converted into the right to receive 0.775 (the "Exchange Ratio") of a share of Common Stock, par value $.01 per share, of the Registrant (the "JP Foodservice Common Shares"). No fractional JP Foodservice Common Shares will be issued in connection with the Merger. In lieu of such fractional shares, a holder of Rykoff-Sexton Common Shares will receive an amount in cash equal to the fractional portion of a JP Foodservice Common Share such holder would have received based on the Exchange Ratio multiplied by the average closing price of a JP Foodservice Common Share over the ten trading days preceding the fifth trading day prior to consummation of the Merger. In connection with the Merger, holders of Rykoff-Sexton Common Shares immediately before the Merger are expected to receive JP Foodservice Common Shares representing approximately 50% of the JP Foodservice Common Shares outstanding giving effect to the Merger. Entities (the "ML Investors") holding Rykoff-Sexton Common Shares immediately before the Merger who are affiliated with Merrill Lynch, Pierce, Fenner & Smith Incorporated, an international investment banking and advisory firm, are expected to receive JP Foodservice Common Shares representing approximately 17% of the JP Foodservice Common Shares outstanding giving effect to the Merger. At the Effective Time, the Registrant assumed each option to purchase Rykoff-Sexton Common Shares outstanding under certain Rykoff-Sexton director and employee stock plans immediately before the Merger and all warrants to purchase Rykoff-Sexton Common Shares outstanding immediately before the Merger. In connection with the Merger, each assumed option and each assumed warrant was converted into an option or warrant, as the case may be, to purchase, on the same terms and conditions as were applicable to such options (subject to adjustment of the applicable exercise prices thereunder based on the Exchange -2- Ratio) and warrants, an adjusted number of JP Foodservice Common Shares based on the Exchange Ratio. It is intended that the Merger will be accounted for by the Registrant as a pooling of interests in accordance with generally accepted accounting principles. The Registrant expects that the Merger will constitute a "reorganization" within the meaning of Section 368(a) of the Internal Revenue Code of 1986, as amended. The Registrant's Registration Statement on Form S-4 (Registration No. 333-32711), which was declared effective by the Securities and Exchange Commission on November 24, 1997 (the "Registration Statement"), sets forth certain information regarding the Merger, the Registrant and Rykoff-Sexton. Such information in the Registration Statement includes, but is not limited to, information regarding the date and manner of the Merger, a description of the assets involved, the nature and amount of consideration paid by the Registrant therefor, the method used for determining the amount of such consideration, the nature of any material relationship between Rykoff-Sexton and the Registrant, any affiliate, director or officer of the Registrant or any associate of any such director or officer, the nature of Rykoff-Sexton's business and the Registrant's intended use of the assets acquired in the Merger. The information set forth under Item 5 of this Current Report on Form 8-K is incorporated herein by reference. ITEM 5. OTHER EVENTS. BOARD OF DIRECTORS. Pursuant to the Merger Agreement, prior to the Effective Time, the Registrant increased the size of the Registrant's Board of Directors from nine to 17 directors. Immediately following the Effective Time, the Registrant's Board of Directors consisted of (i) the nine incumbent members of the Registrant's Board of Directors immediately prior to the Effective Time and (ii) the following seven individuals who were serving as members of the Rykoff-Sexton Board of Directors immediately prior to the Effective Time and who were designated pursuant to the Merger Agreement: Mark Van Stekelenburg, James I. Maslon, James P. Miscoll, Neil I. Sell, Bernard Sweet, Matthias B. Bowman and Albert J. Fitzgibbons, III. Pursuant to the Merger Agreement, Messrs. Bowman and Fitzgibbons were designated by Merrill Lynch Capital Partners, Inc., the general partner of certain of the ML Investors. Pursuant to the Merger Agreement, a 17th director may be designated by the Chairman of the Board of the Registrant after the Merger. No such designation had been made as of the date of this Current Report on Form 8-K. Pursuant to the Merger Agreement, the Registrant increased from three to six directors the size of the classes of the Registrant's Board of Directors -3- with directors whose terms expire in 1998 (the "1998 class") and 1999 (the "1999 class") and increased from three to five directors the size of the class with directors whose terms expire in the year 2000 (the "2000 class"). Effective immediately following the Effective Time, Messrs. Van Stekelenburg, Maslon and Sell were appointed to the 1998 class, Messrs. Sweet, Miscoll and Fitzgibbons were appointed to the 1999 class and Mr. Bowman was appointed to the 2000 class. AMENDMENT OF BY-LAWS. Pursuant to the Merger Agreement, the Registrant amended its By-laws. A copy of the Registrant's Amended and Restated By-laws, as so amended, is filed as Exhibit 3.1 to this Current Report on Form 8-K. AMENDMENT OF RIGHTS AGREEMENT. Pursuant to the Merger Agreement, as of the Effective Time, the Registrant amended the Rights Agreement, dated as of February 19, 1996, as amended, between the Registrant and The Bank of New York, as Rights Agent. A copy of such amendment is filed as Exhibit 10.1 to this Current Report on Form 8-K. REGISTRATION RIGHTS AGREEMENT. In connection with the Merger, as of the Effective Time, the Registrant assumed the rights and obligations of Rykoff- Sexton under a registration rights agreement with the ML Investors and other former stockholders of Rykoff-Sexton named therein. Under the registration rights agreement, as so amended, the ML Investors have certain "demand" rights and the ML Investors and such other former stockholders of Rykoff-Sexton have certain "piggyback" rights requiring the Registrant, subject to specified limitations and qualifications, to register the transfer under the Securities Act of 1933 of all or a portion of the JP Foodservice Common Shares issued to them in the Merger in exchange for Rykoff-Sexton Common Shares entitled to registration rights prior to the Effective Time. INDENTURE. In connection with the Merger, the Surviving Corporation succeeded to the rights and obligations of Rykoff-Sexton under the indenture (the "Indenture") pursuant to which approximately $130 million principal amount of Rykoff-Sexton's 8 7/8% Senior Subordinated Notes due 2003 (the "Rykoff-Sexton Public Notes") were outstanding as of December 27, 1997. Pursuant to the Indenture, within 30 business days after the Merger is consummated, the Surviving Corporation will be required to make an offer to purchase the Rykoff- Sexton Public Notes at a purchase price equal to 101% of their principal amount, plus accrued interest from the most recent preceding semi-annual interest payment date to the redemption date. -4- NEW CREDIT FACILITY. In connection with the Merger, immediately following the Effective Time, the Registrant, through its subsidiaries, entered into a new revolving credit facility and a new 364-day revolver/term loan facility (collectively, the "New Credit Facility") with a syndicate of banks which will provide the Registrant with funding of up to $750 million. The Registrant has applied a portion of such funds to refinance indebtedness of the Registrant and Rykoff-Sexton outstanding at the Effective Time under their former senior bank credit facilities and has applied and will apply a portion of such funds to repay all amounts outstanding under the Registrant's 8.55% Senior Notes due 2004. The Registrant will use other borrowings under the New Credit Facility to pay fees and expenses incurred in connection with the Merger and to finance capital expenditures and on-going capital needs. ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS. (a) FINANCIAL STATEMENTS OF BUSINESSES ACQUIRED. The financial statements required by this Item 7(a) will be filed by amendment to this Current Report on Form 8-K. (b) PRO FORMA FINANCIAL INFORMATION. The following pro forma combining consolidated financial statements of the Registrant giving effect to the Merger under the pooling of interests method of accounting are incorporated herein by reference from the Registration Statement: Unaudited Pro Forma Combining Consolidated Balance Sheet as of September 27, 1997. Unaudited Pro Forma Combining Consolidated Statements of Operations for the Fiscal Year ended July 1, 1995. Unaudited Pro Forma Combining Consolidated Statements of Operations for the Fiscal Year ended June 29, 1996. Unaudited Pro Forma Combining Consolidated Statements of Operations for the Fiscal Year ended June 28, 1997. Unaudited Pro Forma Combining Consolidated Statements of Operations for the Three Months ended September 28, 1996. Unaudited Pro Forma Combining Consolidated Statements of Operations for the Three Months ended September 27, 1997. Notes to Unaudited Pro Forma Combining Consolidated Financial Statements. -5- (c) EXHIBITS (LISTED ACCORDING TO THE NUMBER ASSIGNED IN ITEM 601 OF REGULATION S-K UNDER THE SECURITIES ACT OF 1933): Exhibit No. Description - ----------- ----------- 2.1 Agreement and Plan of Merger, dated as of June 30, 1997, among JP Foodservice, Inc. (the "Company"), Hudson Acquisition Corp. and Rykoff-Sexton, Inc. (incorporated by reference to Exhibit 2.1 to the Company's Current Report on Form 8-K dated June 30, 1997 and filed with the Securities and Exchange Commission on July 2, 1997). 2.2 Amendment No. 1 to Agreement and Plan of Merger, dated as of September 3, 1997, among the Company, Hudson Acquisition Corp. and Rykoff-Sexton, Inc. (incorporated by reference to Exhibit 2.2 to the Company's Current Report on Form 8-K dated September 3, 1997 and filed with the Securities and Exchange Commission on September 9, 1997). 2.3 Amendment No. 2 to Agreement and Plan of Merger, dated as of November 5, 1997, among the Company, Hudson Acquisition Corp. and Rykoff-Sexton, Inc. (incorporated by reference to Exhibit 2.3 to the Company's Current Report on Form 8-K dated November 5, 1997 and filed with the Securities and Exchange Commission on November 7, 1997). 3.1 Amended and Restated By-Laws of the Company. 10.1 Amendment No. 4 to Rights Agreement, dated as of December 23, 1997, between the Company and The Bank of New York, as Rights Agent. 99.1 Press Release dated December 23, 1997. -6- SIGNATURES Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized. JP FOODSERVICE, INC. By: /s/ Lewis Hay, III ----------------------------- Lewis Hay, III Executive Vice President and Chief Financial Officer Date: January 7, 1998 -7- EX-3.1 2 EXHIBIT 3.1 EXHIBIT 3.1 AMENDED AND RESTATED BY-LAWS OF JP FOODSERVICE, INC. ARTICLE I OFFICES Section 1. Registered Office. The registered office of the Corporation in the State of Delaware is 1013 Centre Road, in the City of Wilmington, Delaware 19805, in the County of New Castle. The name of its registered agent at such address is Corporation Service Company. Section 2. Other Offices. The Corporation may also have offices at such other places both within and without the State of Delaware as the Board of Directors may from time to time determine or the business of the Corporation may require. ARTICLE II STOCKHOLDERS MEETINGS Section 1. Places of Meetings. All meetings of stockholders shall be held at such place or places in or outside of the State of Delaware as shall be designated from time to time by the Board of Directors and stated in the notice of meeting or waiver of notice thereof, subject to any provisions of the laws of the State of Delaware. Section 2. Annual Meetings. Unless otherwise determined from time to time by the Board of Directors, the annual meeting of stockholders shall be held each year for the election of directors and the transaction of such other business as may properly come before the meeting at such date and time as may be designated by the Board of Directors. Written notice of the time and place of the annual meeting shall be given by mail to each stockholder entitled to vote at such meeting, at the stockholder's address as it appears on the records of the Corporation, not less than ten (10) nor more than sixty (60) days prior to the scheduled date thereof. Section 3. Special Meetings. A special meeting of the stockholders of the Corporation may be called at any time by the Chairman of the Board or by the Board of Directors pursuant to a resolution adopted by a majority of the total number of directors which the Corporation would have if there were no vacancies. Written notice of the date, time, place and specific purpose or purposes for which such meeting is called shall be given by mail to each stockholder entitled to vote thereat at such stockholder's address as it appears on the records of the Corporation not less than (10) nor more than sixty (60) days prior to the scheduled date thereof. Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice. Section 4. Voting. At all meetings of stockholders, each stockholder entitled to vote on the record date as determined under these By-Laws or, if not so determined, as prescribed under the laws of the State of Delaware, shall be entitled to one vote for each share of stock standing on record in such stockholder's name, subject to any restrictions or qualifications set forth in the Restated Certificate of Incorporation of the Corporation or any amendment thereto (the "Restated Certificate of Incorporation"). Section 5. Quorum; Voting. At any stockholders meeting, a majority of the number of shares of stock outstanding and entitled to vote thereat, present in person or by proxy, shall constitute a quorum, but a smaller interest may adjourn any meeting from time to time, and the meeting may be held as adjourned without further notice, subject to such limitations as may be imposed under the laws of the State of Delaware. When a quorum is present at any meeting, the affirmative vote of the holders of a majority of the number of shares of stock entitled to vote thereon, present in person or by proxy, shall decide any question brought before such meeting unless such question is one upon which a different vote is required by express provision of the Restated Certificate of Incorporation, these By-Laws, the rules or regulations of the New York Stock Exchange, Inc. or any law or other rule or regulation applicable to the Corporation, in which case such express provision shall govern. Section 6. Inspectors of Election; Opening and Closing the Polls. The Board of Directors may, by resolution, appoint one or more inspectors, which inspector or inspectors may include individuals who serve the Corporation in other capacities, including, without limitation, as officers, employees, agents or representatives of the Corporation, to act at a meeting of stockholders and make a written report thereof. One or more persons may be designated as alternative inspectors to replace any inspector who fails to act. If no inspector or alternate has been appointed to act, or if all inspectors or alternates who have been appointed are unable to act at a meeting of stockholders, the chairman of the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before discharging his or her duties, shall take and sign an oath faithfully to execute the duties of inspector with strict impartiality and according to the best of his or her ability. The inspectors shall have the duties prescribed by the General Corporation Law of the State of Delaware. The chairman of the meeting shall fix and announce at the meeting the date and time of the opening and the closing of the polls for each matter upon which the stockholders will vote at the meeting. -2- Section 7. List of Stockholders. At least ten (10) days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order and showing the address and the number of shares registered in the name of each stockholder, shall be prepared by the secretary or the transfer agent in charge of the stock ledger of the Corporation. Such list shall be open for examination by any stockholder as required by the laws of the State of Delaware. The stock ledger shall be the only evidence as to who are the stockholders entitled to examine such list or the books of the Corporation or to vote in person or by proxy at such meeting. Section 8. Written Consent in Lieu of Meeting. Except as otherwise provided for or fixed pursuant to the provisions of the Restated Certificate of Incorporation relating to the rights of the holders of any series of preferred stock, no action that is required or permitted to be taken by the stockholders of the Corporation at any annual or special meeting of stockholders may be effected by written consent of stockholders in lieu of a meeting of stockholders. ARTICLE III BOARD OF DIRECTORS Section 1. Number and Qualification. The authorized number of directors that shall constitute the full Board of Directors of the Corporation shall be fixed from time to time by resolution of the Board of Directors. The Board of Directors, other than those directors elected by the holders of any series of preferred stock, shall be divided into three classes, as nearly equal in number as the then-authorized number of directors constituting the Board permits, with the term of office of one class expiring each year and with each director serving for a term ending at the third annual meeting of stockholders of the Corporation following the annual meeting at which such director was elected. One class of directors shall be initially elected for a term expiring at the annual meeting of stockholders to be held in 1995, another class shall be initially elected for a term expiring at the annual meeting of stockholders to be held in 1996, and another class shall be initially elected for a term expiring at the annual meeting of stockholders to be held in 1997. Members of each class shall hold office until their successors are elected and qualified. At each succeeding annual meeting of the stockholders of the Corporation, the successors of the class of directors whose term expires at that meeting shall be elected by a plurality vote of all votes cast at such meeting to hold office for a term expiring at the annual meeting of stockholders held in the third year following the year of their election. Directors need not be stockholders of the Corporation. Notwithstanding any other provision of these By-Laws, (i) no person who has attained 70 years of age may be elected to the Board, other than pursuant to the Agreement and Plan of Merger dated as of June 30, 1997 among the Corporation, Hudson Acquisition Corp. and Rykoff-Sexton, Inc., and (ii) any director who attains 70 years of age after such director's election to the Board may serve for the entire term of the class of the Board to which such director was elected. The -3- requirements of the preceding sentence shall not apply to any director of the Corporation elected to the Board prior to June 29, 1997. Section 2. Powers. The business and affairs of the Corporation shall be carried on by or under the direction of the Board of Directors, which shall have all the powers authorized by the laws of the State of Delaware, subject to such limitations as may be provided by the Restated Certificate of Incorporation or these By-Laws. Except as otherwise expressly provided herein or in the Restated Certificate of Incorporation, the vote of the majority of directors present at a meeting at which a quorum is present shall be the act of the Board of Directors. Section 3. Compensation. The Board of Directors may from time to time by resolution authorize the payment of fees or other compensation to the directors for services as such to the Corporation, including, but not limited to, fees for attendance at all meetings of the Board or of the executive or other committees, and determine the amount of such fees and compensation. Nothing herein contained shall be construed to preclude any director from serving the Corporation in any other capacity and receiving compensation therefor in amounts authorized or otherwise approved from time to time by the Board. Section 4. Meetings and Quorum. Meetings of the Board of Directors may be held either in or outside of the State of Delaware. At all meetings of the Board, a majority of the then authorized number of directors shall constitute a quorum. If a quorum shall not be present at any meeting of the Board of Directors, the directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present. The first meeting of the Board of Directors after the election of a new class of directors shall be held immediately after the annual meeting of stockholders and at the same place, and no notice of such meeting shall be necessary to the newly elected directors in order legally to constitute the meeting, provided a quorum shall be present. In the event such meeting is not held at such time and place, the meeting may be held at such time and place as shall be specified in a notice given as hereinafter provided for special meetings of the Board of Directors, or as shall be specified in a written waiver signed by all the directors. Regular meetings of the Board of Directors may be held without notice at such time and at such place as shall from time to time be determined by the Board. Notice of special meetings shall be given to each director on one (1) day's notice to each director, either personally, by mail, telegram, facsimile, personal delivery or similar means. Special meetings may be called by the president or the Chairman of the Board of Directors and shall be called by the president or secretary in the manner and on the notice set forth above upon the written request of a -4- majority of the total number of directors which the Corporation would have if there were no vacancies. Notice of any meeting shall state the time and place of such meeting, but need not state the purposes thereof unless otherwise required by the laws of the State of Delaware, the Restated Certificate of Incorporation, these By-Laws or the Board of Directors. Section 5. Executive Committee. The Board of Directors may, by resolution adopted by a majority of the total number of directors which the Corporation would have if there were no vacancies, designate an Executive Committee to exercise, subject to applicable provisions of law, all the powers of the Board in the management of the business and affairs of the Corporation when the Board is not in session, including without limitation the power to declare dividends and to authorize the issuance of the Corporation's capital stock, and may, by resolution similarly adopted, designate one or more other committees, including such committees specified in Section 6 of this Article III. The Executive Committee shall consist of two or more directors of the Corporation. The Board may designate one or more directors as alternate members of the Executive Committee, who may replace any absent member at any meeting of the Executive Committee. The members of the Executive Committee present at any meeting, whether or not constituting a quorum, may unanimously appoint another member of the Board to act at the meeting in the place of any such absent member. The Executive Committee shall keep written minutes of its proceedings and shall report such proceedings to the Board when required. A majority of the Executive Committee may determine its action and fix the time and place of its meetings, unless the Board shall otherwise provide. Notice of such meetings shall be given to each member of the Executive Committee in the manner provided for in Section 4 of this Article III. The Board shall have power at any time to fill vacancies in, to change the membership of, or to dissolve the Executive Committee. Section 6. Other Committees. (a) The Board shall appoint the following standing committees, the members of which shall serve at the pleasure of the Board: a Nominating Committee, a Compensation Committee and an Audit Committee. The Board may appoint such other committees among the directors of the Corporation as it deems necessary and appropriate for the proper conduct of the Corporation's business and may appoint such officers, agents or employees of the Corporation to assist the committees of the Board as it deems necessary and appropriate. Meetings of committees may be called by the chairman of the committee on one (1) day's notice to each committee member, either personally, by mail, telegram, facsimile or similar means and shall be called by the chairman of the committee in like manner -5- and on like notice on the written request of a committee member. Each committee shall keep regular minutes of its meetings and report the same to the Board of Directors when required. (b) One or more directors of the Corporation shall be appointed to act as a Nominating Committee. The Nominating Committee shall be responsible for proposing to the Board nominees for election as directors and shall possess and may exercise such additional powers and authority as may be delegated to it by the Board from time to time. The Nominating Committee shall report its actions to the Board at the next meeting of the Board following such actions. Vacancies in the membership of the Nominating Committee shall be filled by the Board of Directors. (c) One or more directors of the Corporation shall be appointed to act as a Compensation Committee, each of whom shall be directors who are not also officers or employees of the Corporation or its subsidiaries or any other individual having a relationship which, in the opinion of the Board of Directors, would interfere with the exercise of independent judgment in carrying out the responsibilities of a director (each such director, an "Unaffiliated Director"). The Compensation Committee shall be responsible for establishing salaries, bonuses and other compensation for the executive officers of the Corporation and for administering the Corporation's benefit plans, and shall possess and may exercise such additional powers and authority as may be delegated to it by the Board from time to time. The Compensation Committee shall report its actions to the Board at the next meeting of the Board following such actions. Vacancies in the membership of the Compensation Committee shall be filled by the Board of Directors. (d) One or more Unaffiliated Directors of the Corporation shall be appointed to act as an Audit Committee. The Audit Committee shall have general oversight responsibility with respect to the Corporation's financial reporting. In performing its oversight responsibility, the Committee shall make recommendations to the Board of Directors as to the selection, retention, or change in the independent accountants of the Corporation, review with the independent accountants the scope of their examination and other matters (relating to both audit and non-audit activities), and review generally the internal auditing procedures of the Corporation. In undertaking the foregoing responsibilities, the Audit Committee shall have unrestricted access, if necessary, to personnel of the Corporation and documents and shall be provided with the resources and assistance necessary to discharge its responsibilities, including periodic reports from management assessing the impact of regulation, accounting, and reporting of other significant matters that may affect the Corporation. The Audit Committee shall review the financial reporting and adequacy of internal controls of the Corporation, consult with the internal auditors and certified public accountants, and from time to time, but not less than annually, report to the Board. Vacancies in the membership of the Audit Committee shall be filled by the Board of Directors. -6- Section 7. Conference Telephone Meetings. Any one or more members of the Board of Directors or any committee thereof may participate in meetings by means of a conference telephone or similar communications equipment and such participation in a meeting shall constitute presence in person at the meeting. Section 8. Action Without Meetings. Any action required or permitted to be taken at any meeting of the Board of Directors or any committee thereof may be taken without a meeting to the extent and in the manner authorized by the laws of the State of Delaware. Section 9. Transactions With Affiliates. No transaction, agreement or understanding between the Corporation (or any of its subsidiaries) and any affiliate of the Corporation that, along with its affiliates and associates, beneficially owns 10% or more of the outstanding common stock of the Corporation shall be valid and effective unless such transaction, agreement or understanding shall have been approved or adopted or authorized, as the case may be, by the Board of Directors or the Executive Committee. ARTICLE IV OFFICERS Section 1. Titles and Election. The officers of the Corporation shall be the president, a secretary and a treasurer, who shall initially be elected as soon as convenient by the Board of Directors and thereafter, in the absence of earlier resignations or removals, shall be elected at the first meeting of the Board following the annual meeting of stockholders. Each officer shall hold office at the pleasure of the Board except as may otherwise be approved by the Board, or until such officer's earlier resignation, removal under these By-Laws or other termination of employment. Any person may hold more than one office if the duties can be consistently performed by the same person, to the extent permitted by the laws of the State of Delaware. The Board of Directors, in its discretion, may also at any time elect or appoint a Chairman of the Board of Directors, who shall be a director, a Vice Chairman of the Board, who shall be a director, and one or more vice presidents, assistant secretaries and assistant treasurers and such other officers as it may deem advisable, each of whom shall hold office at the pleasure of the Board, except as may otherwise be approved by the Board, or until such officer's earlier resignation, removal or other termination of employment, and shall have such authority and shall perform such duties as shall be prescribed or determined from time to time by the Board or, in case of officers other than the Chairman of the Board or the Vice Chairman of the Board, if not so prescribed or determined by the Board, as the chief executive officer or the then senior executive officer may prescribe or determine. The Board of Directors may require any officer or other -7- employee or agent to give bond for the faithful performance of duties in such form and with such sureties as the Board may require. Section 2. Duties. Subject to such extension, limitations, and other provisions as the Board of Directors or these By-Laws may from time to time prescribe or determine, the following officers shall have the following powers and duties: (a) Chairman, Vice Chairman and Chief Executive Officer. The Chairman of the Board, when present, shall preside at all meetings of the stockholders and of the Board of Directors and shall be charged with general supervision of the management and policy of the Corporation, and shall have such other powers and perform such other duties as the Board of Directors may prescribe from time to time. The Chairman of the Board shall be the chief executive officer of the Corporation, shall exercise the powers and authority and perform all of the duties commonly incident to such office and shall perform such other duties as chief executive officer as the Board of Directors shall specify from time to time. The Vice Chairman of the Board of Directors shall, during the absence at a meeting of stockholders of the Corporation or of the Board, or disability, of the Chairman of the Board, have the powers and perform the duties of the Chairman of the Board and shall also perform such other duties and may exercise such other powers as from time to time may be assigned to him by the Board. (b) President. The president shall act in a general executive capacity, shall report to the Chairman of the Board and chief executive officer and shall assist the Chairman of the Board in the administration and operation of the Corporation's business and general supervision of its policies and affairs. The president shall, in the absence at a meeting of stockholders of the Corporation or of the Board, or because of the inability to act, of the Chairman of the Board and the Vice Chairman of the Board, perform all duties of the Chairman of the Board and preside at all meetings of the stockholders and of the Board of Directors, if he is a director. (c) Vice President. The vice president or vice presidents shall perform such duties as may be assigned to them from time to time by the Board of Directors or by the president if the Board does not do so. In the absence or disability of the president, the vice presidents in order of seniority may, unless otherwise determined by the Board, exercise the powers and perform the duties pertaining to the office of president, except that if one or more senior vice presidents has been elected or appointed, the person holding such office in order of seniority shall exercise the powers and perform the duties of the office of president. (d) Secretary. The secretary, or in the secretary's absence, an assistant secretary shall keep the minutes of all meetings of stockholders and of the Board of Directors, give and serve all notices, attend to such correspondence as may -8- be assigned to such officer, keep in safe custody the seal of the Corporation, and affix such seal to all such instruments properly executed as may require it, and shall have such other duties and powers as may be prescribed or determined from time to time by the Board of Directors or by the president if the Board does not do so. (e) Treasurer. The treasurer, subject to the order of the Board of Directors, shall have the care and custody of the moneys, funds, valuable papers and documents of the Corporation (other than such officer's own bond, if any, which shall be in the custody of the president), and shall have, under the supervision of the Board of Directors, all the powers and duties commonly incident to such office. The treasurer shall deposit all funds of the Corporation in such bank or banks, trust company or trust companies, or with such firm or firms doing a banking business as may be designated by the Board of Directors or by the president if the Board does not do so. The treasurer may endorse for deposit or collection all checks, notes and similar instruments payable to the Corporation or to its order. The treasurer shall keep accurate books of account of the Corporation's transactions, which shall be the property of the Corporation and, together with all of the property of the Corporation in such officer's possession, shall be subject at all times to the inspection and control of the Board of Directors. The treasurer shall be subject in every way to the order of the Board of Directors, and shall render to the Board of Directors and/or the president of the Corporation, whenever they may require it, an account of all transactions and of the financial condition of the Corporation. In addition to the foregoing, the treasurer shall have such duties as may be prescribed or determined from time to time by the Board of Directors or by the president if the Board does not do so. (f) Delegation of Authority. The Board of Directors may at any time delegate the powers and duties of any officer for the time being to any other officer, director or employee. (g) Compensation. The compensation of the Chairman of the Board, the Vice Chairman of the Board and the chief executive officer shall be fixed by the Board of Directors, and the fact that any officer is a director shall not preclude such officer from receiving compensation or from voting upon the resolution providing the same. The compensation of all other officers of the Corporation shall be fixed by the chief executive officer or, during his absence or disability, by the Board. ARTICLE V RESIGNATIONS AND VACANCIES Section 1. Resignations. Any director or officer may resign at any time by giving written notice thereof to the Board of Directors, the president or the secretary. Any such resignation shall take effect at the time specified therein or, if -9- the time be not specified, upon receipt thereof; and unless otherwise specified therein, the acceptance of any resignation shall not be necessary to make it effective. Section 2. Vacancies. (a) Directors. Except for the rights of the holders of any series of preferred stock to elect additional directors, newly created directorships resulting from any increase in the authorized number of directors and any vacancies on the Board of Directors resulting from death, resignation, disqualification, removal, or other cause shall be filled only by the affirmative vote of a majority of the remaining directors then in office, even though less than a quorum of the Board of Directors. Any director elected in accordance with the preceding sentence shall hold office for the remainder of the full term of the class of directors in which the new directorship was created or in which the vacancy occurred and until such director's successor is duly elected and has been qualified. The directors also may reduce the authorized number of directors by the number of vacancies on the Board, provided that such reduction does not reduce the Board to less than the minimum authorized by the laws of the State of Delaware. No decrease in the number of directors constituting the Board of Directors shall shorten the term of any incumbent director. (b) Officers. The Board of Directors may at any time or from time to time fill any vacancy among the officers of the Corporation. ARTICLE VI CAPITAL STOCK Section 1. Certificate of Stock. Every stockholder shall be entitled to a certificate or certificates for shares of the capital stock of the Corporation in such form as may be prescribed or authorized by the Board of Directors, duly numbered and setting forth the number and kind of shares represented thereby. Such certificates shall be signed by the Chairman of the Board, the president or a vice president and by the treasurer or an assistant treasurer or by the secretary or an assistant secretary. Any or all of such signatures may be in facsimile if and to the extent authorized under the laws of the State of Delaware. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed on a certificate has ceased to be such officer, transfer agent or registrar before the certificate has been issued, such certificate may nevertheless be issued and delivered by the Corporation with the same effect as if such person were such officer, transfer agent or registrar at the date of issue. Section 2. Transfer of Stock. Shares of the capital stock of the Corporation shall be transferable only upon the books of the Corporation upon the surrender of the certificate or certificates properly assigned and endorsed for -10- transfer. If the Corporation has a transfer agent or agents or transfer clerk and registrar of transfers acting on its behalf, the signature of any officer or representative thereof may be in facsimile. The Board of Directors may appoint a transfer agent and one or more co-transfer agents and a registrar and one or more co-registrars of transfer and may make or authorize the transfer agents to make all such rules and regulations deemed expedient concerning the issue, transfer and registration of shares of stock. Section 3. Record Dates. (a) In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix in advance a record date which, in the case of a meeting, shall not be less than ten (10) nor more than sixty (60) days prior to the scheduled date of such meeting and which, in the case of any other action, shall be not more than the maximum number of days prior to any such action permitted by the laws of the State of Delaware. (b) If no such record date is fixed by the Board, the record date shall be that prescribed by the laws of the State of Delaware. (c) A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting. Section 4. Lost Certificates. In case of loss or mutilation or destruction of a stock certificate, a duplicate certificate may be issued upon such terms as may be determined or authorized by the Board of Directors or by the president if the Board does not do so. ARTICLE VII FISCAL YEAR, BANK DEPOSITS, CHECK, ETC. Section 1. Fiscal Year. The fiscal year of the Corporation shall commence or end at such time as the Board of Directors may designate. Section 2. Bank Deposits, Checks, etc. The funds of the Corporation shall be deposited in the name of the Corporation or of any division thereof in such banks or trust companies in the United States or elsewhere as may be designated from time to time by the Board of Directors, or by such officer or officers as the Board may authorize to make such designations. -11- All checks, drafts or other orders for the withdrawal of funds from any bank account shall be signed by such person or persons as may be designated from time to time by the Board of Directors. The signatures on checks, drafts or other orders for the withdrawal of funds may be in facsimile if authorized in the designation. ARTICLE VIII BOOKS AND RECORDS Section 1. Place of Keeping Books. Unless otherwise expressly required by the laws of the State of Delaware, the books and records of the Corporation may be kept outside of the State of Delaware. Section 2. Examination of Books. Except as may otherwise be provided by the laws of the State of Delaware, the Restated Certificate of Incorporation or these By-Laws, the Board of Directors shall have power to determine from time to time whether and to what extent and at what times and places and under what conditions any of the accounts, records and books of the Corporation are to be open to the inspection of any stockholder. No stockholder shall have any right to inspect any account or book or document of the Corporation except as prescribed by statute or authorized by express resolution of the stockholders or of the Board of Directors. ARTICLE IX NOTICES Section 1. Requirements of Notice. Whenever notice is required to be given by statute, the Restated Certificate of Incorporation or these By-Laws, it shall not mean personal notice unless so specified, but such notice may be given in writing by depositing the same in a post office, letter box, or mail chute postpaid and addressed to the person to whom such notice is directed at the address of such person on the records of the Corporation, and such notice shall be deemed given at the time when the same shall be thus mailed. Section 2. Waivers. Any stockholder, director or officer may, in writing or by telegram or cable, at any time waive any notice or other formality required by statute, the Restated Certificate of Incorporation or these By-Laws. Such waiver of notice, whether given before or after any meeting or action, shall be deemed equivalent to notice. Presence of a stockholder either in person or by proxy at any stockholders meeting and presence of any director at any meeting of the Board of Directors shall constitute a waiver of such notice as may be required by any statute, the Restated Certificate of Incorporation or these By-Laws. -12- ARTICLE X SEAL The corporate seal of the Corporation shall consist of two concentric circles between which shall be the name of the Corporation and the date of its incorporation, and in the center of which shall be inscribed "Corporate Seal, Delaware." ARTICLE XI POWERS OF ATTORNEY The Board of Directors may authorize one or more of the officers of the Corporation to execute powers of attorney delegating to named representatives or agents power to represent or act on behalf of the Corporation, with or without power of substitution. In the absence of any action by the Board, the president, any vice president, the secretary or the treasurer of the Corporation may execute for and on behalf of the Corporation waivers of notice of stockholders meetings and proxies for such meetings in any company in which the Corporation may hold voting securities. ARTICLE XII INDEMNIFICATION OF DIRECTORS AND OFFICERS Section 1. Definitions. As used in this article, the term "person" means any past, present or future director or officer of the Corporation or any subsidiary or operating division thereof. Section 2. Indemnification Granted. The Corporation shall indemnify, to the full extent and under the circumstances permitted by the General Corporation Law of the State of Delaware in effect from time to time, any person as defined above, made or threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that such person is or was a director or officer of the Corporation or a subsidiary or operating division thereof, or is or was an employee or agent of the Corporation, or is or was serving at the specific request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, or by reason of any action alleged to have been taken or omitted in such capacity, against costs, charges, expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person or on such person's behalf in connection with such action, suit or proceeding and any appeal therefrom, if such person acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of the Corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe that his or her conduct was unlawful. The termination of any action, suit, or proceeding by -13- judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in a manner which he or she reasonably believed to be in or not opposed to the best interests of the Corporation, and, with respect to any criminal action or proceeding, had reasonable cause to believe that such conduct was unlawful. Section 3. Requirements for Indemnification. The Corporation shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the Corporation to procure a judgment in its favor by reason of the fact that such person is or was a director, officer, employee or agent of the Corporation, or a subsidiary thereof or a designated officer of an operating division of the Corporation, or is or was serving at the specific request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, or by reason of any action alleged to have been taken or omitted in such capacity, against costs, charges and expenses (including attorneys' fees) actually and reasonably incurred by such person or on such person's behalf in connection with the defense or settlement of such action or suit and any appeal therefrom, if such person acted in good faith and in a manner that such person reasonably believed to be in or not opposed to the best interest of the Corporation except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the Corporation unless and only to the extent that the Court of Chancery of Delaware or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of such liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such costs, charges and expenses which the Court of Chancery or such other court shall deem proper. Section 4. Success on Merits of Any Action. Notwithstanding any other provision of this Article, to the extent that a director, officer, employee or agent of the Corporation or any subsidiary or operating division thereof has been successful on the merits or otherwise, including, without limitation, the dismissal of an action without prejudice, in defense of any action, suit or proceeding referred to in this Article, or in defense of any claim, issue or matter therein, such person shall be indemnified against all costs, charges and expenses (including attorneys' fees) actually and reasonably incurred by such person or on such person's behalf in connection therewith. Section 5. Determination of Standard of Conduct. Any indemnification under Sections 2 and 3 of this Article (unless ordered by a court) shall be paid by the Corporation only after a determination has been made (1) by the Board of Directors by a majority vote of a quorum consisting of directors who were not parties to such action, suit or proceeding, or (2) if such quorum is not obtainable, or even if obtainable, a quorum of disinterested directors so directs, by -14- independent legal counsel in a written opinion, or (3) by the stockholders, that indemnification of the director, officer, employee or agent is proper in the circumstances of the specific case because such person has met the applicable standard of conduct set forth in Sections 2 and 3 of this Article. Section 6. Advance Payment; Representation by Corporation. Costs, charges and expenses (including attorneys' fees) incurred by a person referred to in Sections 2 and 3 of this Article in defending a civil or criminal action, suit or proceeding shall be paid by the Corporation in advance of the final disposition of such action, suit or proceeding; provided, however, that the payment of such costs, charges and expenses incurred by a director or officer in such capacity as officer or director (and not in any other capacity and which service was or is rendered by such person while a director or officer) in advance of the final disposition of such action, suit or proceeding shall be made only upon receipt of an undertaking by or on behalf of the director or officer to repay all amounts so advanced in the event that it shall ultimately be determined that such director or officer is not entitled to be indemnified by the Corporation as authorized in this Article. Such costs, charges and expenses incurred by other employees and agents may be so paid upon such terms and conditions, if any, as the Board of Directors deems appropriate. The Corporation may, in the manner set forth above, and upon approval of such director, officer, employee or agent, authorize the Corporation's counsel to represent such person, in any action, suit or proceeding, whether or not the Corporation is a party to such action, suit or proceeding. Section 7. Procedure for Obtaining Indemnity. Any indemnification under Sections 2, 3 and 4, or advance of costs, charges and expenses under Section 6, of this Article shall be made promptly, and in any event within sixty (60) days, of the written notice of the director, officer, employee or agent. The right to indemnification or advances as granted by this Article shall be enforceable by the director, officer, employee or agent in any court of competent jurisdiction if the Corporation denies such request, in whole or in part, or if no disposition thereof is made within sixty (60) days. Such person's costs and expenses incurred in connection with successfully establishing a right to indemnification, in whole or in part, in any action shall also be indemnified by the Corporation. It shall be a defense to any such action (other than an action brought to enforce a claim for the advance of costs, charges and expenses under Section 6 of this Article where the required undertaking, if any, has been received by the Corporation) that the claimant has not met the standard of conduct set forth in Section 2 or 3 of this Article, but the burden of proving such defense shall be on the Corporation. Neither failure of the Corporation (including its Board of Directors, its independent legal counsel, and its stockholders) to have made a determination that indemnification of the claimant is proper in the circumstances because such person has met the applicable standard of conduct set forth in Section 2 or 3 of this Article, nor the fact that there has been an actual determination by the Corporation (including its Board of Directors, its independent legal counsel, and its stockholders) that the claimant -15- has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that the claimant has not met the applicable standard of conduct. Section 8. Indemnification Not Exclusive. This right of indemnification shall not be deemed exclusive of any other rights to which a person indemnified herein may be entitled by law, agreement, vote of stockholders or disinterested directors or otherwise, and shall continue as to a person who has ceased to be a director, officer, designated officer, employee or agent and shall inure to the benefit of the heirs, executors, administrators and other legal representatives of such person. It is not intended that the provisions of this Article be applicable to, and they are not to be construed as granting indemnity with respect to, matters as to which indemnification would be in contravention of the laws of Delaware or of the United States of America, whether as a matter of public policy or pursuant to statutory provision. Section 9. Invalidity of Certain Provisions. If this Article or any portion hereof shall be invalidated on any ground by any court of competent jurisdiction, then the Corporation shall nevertheless indemnify each director, officer, employee and agent of the Corporation or any subsidiary or operating division thereof as to costs, charges and expenses (including attorneys' fees), judgments, fines and amounts paid in settlement with respect to any action, suit or proceeding, whether civil, criminal, administrative or investigative, including any action by or in the right of the Corporation, to the full extent permitted by any applicable portion of this Article that shall not have been invalidated and to the full extent permitted by applicable law. Section 10. Miscellaneous. The Board of Directors may also on behalf of the Corporation grant indemnification to any individual other than a person defined herein to such extent and in such manner as the Board in its sole discretion may from time to time and at any time determine. ARTICLE XIII AMENDMENTS These By-Laws may be adopted, amended or repealed by the affirmative vote of a majority of the directors then in office. -16- EX-10.1 3 EXHIBIT 10.1 EXHIBIT 10.1 AMENDMENT NO. 4 TO RIGHTS AGREEMENT This AMENDMENT, dated as of December 23, 1997, is between JP FOODSERVICE, INC., a Delaware corporation (the "Corporation"), and THE BANK OF NEW YORK (the "Rights Agent"). Recitals -------- WHEREAS, the Corporation and the Rights Agent are parties to a Rights Agreement dated as of February 19, 1996, as amended as of May 17, 1996, September 26, 1996 and June 30, 1997 (the "Rights Agreement"); and WHEREAS, Rykoff-Sexton, Inc., a Delaware corporation ("Rykoff"), Hudson Acquisition Corp., a Delaware corporation and a wholly-owned subsidiary of the Corporation ("Merger Sub"), and the Corporation have entered into an Agreement and Plan of Merger, as amended as of September 3, 1997 and November 5, 1997 (the "Rykoff Merger Agreement"), pursuant to which Rykoff will merge with and into Merger Sub (the "Merger") and stockholders of Rykoff immediately prior to the consummation of the Merger will become stockholders of the Corporation; and WHEREAS, Pursuant to Section 27 of the Rights Agreement, the Board of Directors of the Corporation has determined that an amendment to the Rights Agreement as set forth herein is necessary and desirable in connection with the foregoing and the Corporation and the Rights Agent desire to evidence such amendment in writing; NOW, THEREFORE, the parties agree as follows: I. Amendment of Section 1(a). Section 1(a) of the Rights Agreement ------------------------- is hereby amended and restated to state in its entirety as follows: "Acquiring Person" shall mean any Person (as such term is hereinafter defined) who or which, together with all Affiliates and Associates (as such terms are hereinafter defined) of such Person, shall be the Beneficial Owner (as such term is hereinafter defined) of 10% or more (or, in the case of the ML Entities and the ML Entity Affiliates (as such terms are hereinafter defined), taken together, more than the ML Entities Share Amount (as such term is hereinafter defined)) of the Common Shares of the Company then outstanding, but shall not include (x) the Company, any Subsidiary (as such term is hereinafter defined) of the Company, and employee benefit plan of the Company or any Subsidiary of the Company, or any entity holding Common Shares for or pursuant to the terms of such plan, or (y) Rykoff-Sexton, Inc., a Delaware corporation ("Rykoff"), or any ML Entity, but only to the extent that Rykoff or such ML Entity would, absent this provision, be deemed to be an Acquiring Person solely as the result of (i) the execution and delivery of the Agreement and Plan of Merger (as amended, the "Rykoff Merger Agreement"), dated as of June 30, 1997, as amended as of September 3, 1997 and November 5, 1997, by and among the Company, Rykoff and Hudson Acquisition Corp., a Delaware corporation and a wholly-owned subsidiary of the Company ("Acquisition"), which provides for the merger of Rykoff with and into Acquisition (the "Rykoff Merger"), (ii) the execution and delivery of the Stock Option Agreement, dated as of June 30, 1997, by and between the Company, as issuer, and Rykoff, as grantee, (iii) the Support Agreement, as amended and restated as of June 30, 1997, by and between the Company, on the one hand, and the Rykoff stockholders whose names are set forth on the signature pages thereto (each individually, an "ML Entity" and collectively, the "ML Entities"), and acknowledged by Rykoff, or (iv) the consummation of the transactions contemplated thereby, including, without limitation, the Rykoff Merger; provided, that, notwithstanding the -------- foregoing, following the Effective Time (as defined in the Rykoff Merger Agreement) and prior to the termination of the Standstill Agreement, dated as of May 17, 1996 (the "Standstill Agreement"), by and between Rykoff and the persons set forth on the signature pages thereto, the ML Entity Affiliates may acquire beneficial ownership of additional Common Shares without the ML Entities or ML Entity Affiliates being deemed Acquiring Persons, provided, and only to the extent, that, after giving effect to such acquisition of beneficial ownership, the ML Entities and the ML Entity Affiliates are in compliance with the Standstill Agreement as in effect from time to time at and after the Effective Time. "ML Entity Affiliate" shall mean any entity or Person that is an "Affiliate" of an ML Entity, as such term "Affiliate" is defined in the Standstill Agreement. The number of Common Shares that may be beneficially owned in the aggregate by the ML Entities and the ML Entity Affiliates without such entities being deemed "Acquiring Persons" hereunder pursuant to the foregoing two sentences is hereinafter referred to as the "ML Entities Share Amount." Notwithstanding the foregoing, no Person shall become an "Acquiring Person" as the result of an acquisition of Common Shares by the Company which, by reducing the number of shares outstanding, increases the proportionate number of shares beneficially owned by such Person to 10% or more (or, in the case of the ML Entities and the ML Entity Affiliates, taken together, to more than the ML Entities Share Amount) of the Common Shares of the Company then outstanding; provided, however, that if a Person shall become the -------- ------- Beneficial Owner of 10% or more (or, in the case of the ML Entities and the ML Entity Affiliates, taken together, more than the ML Entities Share Amount) of -2- the Common Shares of the Company then outstanding by reason of share purchases by the Company and shall, after such share purchase by the Company, become the Beneficial Owner of any additional Common Shares of the Company other than in connection with a stock split, stock dividend or other similar transaction occurring after the date hereof, then such Person shall be deemed to be an "Acquiring Person." Notwithstanding the foregoing, if the Board of Directors of the Company determines in good faith that a Person who would otherwise be an "Acquiring Person," as defined pursuant to the foregoing provisions of this paragraph (a), has become such inadvertently, and such Person divests as promptly as practicable a sufficient number of Common Shares so that such Person would no longer be an "Acquiring Person," as defined pursuant to the foregoing provision of this paragraph (a), then such Person shall not be deemed to be an "Acquiring Person" for any purposes of this Agreement. II. Effectiveness. This Amendment shall be deemed effective as of the ------------- date first written above, as if executed on such date. Except as amended hereby, the Rights Agreement shall remain in full force and effect and shall be otherwise unaffected hereby. III. Miscellaneous. This Amendment shall be deemed to be a contract ------------- made under the laws of the State of New York and for all purposes shall be governed by and construed in accordance with the laws of such state applicable to contracts to be made and performed entirely within such state. This amendment may be executed in any number of counterparts, each of such counterparts shall for all purposes be deemed to be an original, and all such counterparts shall together constitute but one and the same instrument. If any provision, covenant or restriction of this Amendment is held by a court of competent jurisdiction or other authority to be invalid, illegal or unenforceable, the remainder of the terms, provisions, covenants and restrictions of this Amendment shall remain in full force and effect and shall in no way be affected, impaired or invalidated. -3- IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the day and year first above written. JP FOODSERVICE, INC. /s/ ------------------------------- Name: Title: THE BANK OF NEW YORK /s/ ------------------------------- Name: Title: -4- EX-99.1 4 EXHIBIT 99.1 EXHIBIT 99.1 Contact: Lewis Hay III Chief Financial Officer 410-312-7512 JP FOODSERVICE, INC.(R) COMPLETES ACQUISITION OF RYKOFF-SEXTON COLUMBIA, MD, Dec. 23, 1997 -- JP Foodservice, Inc.(R) ("JP(TM)") (NYSE:JPF), of Columbia, Maryland, today announced that it has completed the previously announced acquisition of Rykoff-Sexton, Inc. ("Rykoff"), of Wilkes-Barre, Pennsylvania. The $1.4 billion transaction establishes the company as the nation's second-largest foodservice distribution company, with annual sales of about $5.2 billion, more than 12,000 employees, nationwide distribution capabilities, and a customer base of more than 130,000 restaurant, hotel and institutional foodservice customers throughout the United States. Mr. Jim Miller, Chairman and Chief Executive Officer of the company, said: "This is an important and exciting moment in our company's history. We are now the nation's second-largest broadline foodservice distribution company. "While continuing to be known at the holding company level as J.P. Foodservice, Inc.(R) we have already commenced the transition of our operations and most of our products to a proud new name and brand -- U.S. Foodservice(TM) -- that reflects our national footprint covering about 85 percent of the U.S. population. "With a strong balance sheet, an outstanding record of operational and financial performance, and the ability to support a major, ongoing program of capital spending to further build our business, we are well-positioned to continue to pursue attractive external and internal growth opportunities. In fact, since announcing the Rykoff transaction on June 30, we have completed an additional transaction representing an additional $62 million of annual sales, and have been awarded two major pieces of new business as a direct result of the acquisition. 2 (more) "Strategic benefits of the Rykoff-Sexton acquisition also include anticipated cost reductions as well as revenue and margin enhancements. Savings will arise from consolidated and rationalized branches and a reduction of the combined company's cost of capital. Leveraging regional relationships with national chains provides additional revenue opportunities. Further, revenue stabilization should result from a diversified customer base, and gross margins should improve with additional purchasing leverage. "We have nearly 3,000 sales representatives, who have built long-term relationships with tens of thousands of foodservice customers, from national accounts to independent restaurants, hotels, schools, health care facilities and sports stadiums. "Operating out of distribution centers at strategic locations throughout the country, we handle more than 40,000 national, private label and signature brand items. "We already make extensive use of information technology for processing orders, logistics management, inventory management, accounting and many other functions. A new, state-of-the-art information system is now being completed and will be fully implemented over the next eighteen months. This system will maximize our efficiency as a single, seamless company, by supporting standardized product codes across our entire product line and enabling us to service national accounts on a single system. "In short, this acquisition represents a unique opportunity to build the value of the combined enterprise for our many thousands of restaurant, hotel and institutional foodservice customers, for our employees, vendors and other business partners and, in turn, ultimately, for our shareholders," Mr. Miller concluded. 3 (more) As announced on November 5, under the amended acquisition agreement between the companies Rykoff shareholders will receive shares of JP(TM) at a fixed exchange ratio of 0.775 JP(TM) common shares for each Rykoff common share they hold. Based on that exchange ratio, JP(TM)'s closing stock price of $34.81 on December 22, 1997, the approximately 29.6 million shares of Rykoff common stock on a fully diluted basis, and the assumption by JP(TM) of approximately $740 million of Rykoff debt, the transaction has a total enterprise value of $1.4 billion. Also as previously indicated, the acquisition will be accounted for using the pooling-of-interest method and is intended to qualify as a tax-free exchange. U.S. Foodservice(TM), JP Foodservice Inc.(R)'s new operating company, is a leading distributor of food and related products to restaurants and institutional foodservice establishments across the United States. U.S. Foodservice(TM) markets and distributes more than 40,000 national, private label and signature brand items to over 130,000 foodservice customers, including restaurants, hotels, healthcare facilities, cafeterias and schools, and employs more than 12,000 foodservice professionals. U.S. Foodservice(TM)'s diverse customer base encompasses both independent and chain businesses, including Old Country Buffet, Perkins Family Restaurants, Subway, Eurest Dining Services, Cheesecake Factory, Kindercare, Pizzeria Uno and Ruby Tuesday. The statements in this press release concerning management's expectations regarding acquisitions and the results of future operations constitute "forward-looking statements" within the meaning of Section 27A of the Securities Act of 1933 and Section 21E of the Securities Exchange Act of 1934. These statements are subject to risks and uncertainties that could cause U.S. Foodservice(TM)'s actual operating results to differ materially. Such risks and uncertainties include the sensitivity of the company's 4 business to national and regional economic conditions, the effects of inflation and deflation in food prices, the highly competitive markets in which the company operates and difficulties or delays in achieving expected costs savings and operating synergies in integrating the merged businesses. JP(TM)'s Current Report on Form 8-K filed with the Securities and Exchange Commission on April 23, 1997 discusses some of the important factors that could cause actual results to differ materially from those in such forward-looking statements. ### -----END PRIVACY-ENHANCED MESSAGE-----