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UNITED STATED
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 4)*
BURNUP & SIMS INC.
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Common Stock, $.10 Par Value Per Share
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(Title of Class of Securities)
122565 10 4
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(CUSIP Number)
Martin Nussbaum, Esq.
Shereff, Friedman, Hoffman & Goodman
919 Third Avenue
New York, New York 10022
(212) 758-9500
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(Name, Address and Telephone Number of Person Authorized to Receive Notices
and Communications)
March 11, 1994
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(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to
report the acquisition which is the subject of this Schedule 13D, and is
filing this schedule because of Rule 13d- 1(b)(3) or (4), check the
following box ___ .
Check the following box is a fee is being paid with the statement ___ .
(A fee is not required only if the reporting person: (1) has a previous
statement on file reporting beneficial ownership of more than five percent
of the class of securities described in Item 1; and (2) has filed no
amendment subsequent thereto reporting beneficial ownership of five percent
or less of such class.) (See Rule 13d-7.)
Note: Six copies of this statement, including all exhibits, should be
filed with the Commission. See Rule 13d-1(a) for other parties to whom
copies are to be sent.
*The remainder of this cover page shall be filled out for a reporting
person's initial filing on this form with respect to the subject class of
securities, and for any subsequent amendment containing information which
would alter disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be
deemed to be "filed" for the purpose of Section 18 of the Securities Exchange
Act of 1934 ("Act") or otherwise subject to the liabilities of that section
of the Act but shall be subject to all other provisions of the Act (however,
see the Notes).
SCHEDULE 13D
CUSIP No. 122565 10 4 Page 2
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
National Beverage Corp.
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) ___
(b) ___
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3 SEC USE ONLY
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4 SOURCE OF FUNDS*
Not Applicable
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) ___
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
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NUMBER OF 7 SOLE VOTING POWER
SHARES -0-
BENEFICIALLY -----------------------------------------------------
OWNED BY 8 SHARED VOTING POWER
EACH -0-
REPORTING -----------------------------------------------------
PERSON 9 SOLE DISPOSITIVE POWER
WITH -0-
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10 SHARED DISPOSITIVE POWER
-0-
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
-0-
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES*
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (1)
0.0%
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14 TYPE REPORTING PERSON*
CO
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE ATTESTATION.
This Amendment No. 4, dated March 11, 1994 ("Amendment No.4"), to the
Statement on Schedule 13D dated June 20, 1986 (the "Schedule 13D"), as
previously supplemented and amended by Amendment No. 1 dated March 4, 1988
("Amendment No.1"), Amendment No. 2 dated April 5, 1988 ("Amendment No. 2"),
and Amendment No. 3 dated March 18, 1991 is filed by National Beverage Corp.,
a Delaware corporation ("NBC"), and relates to the common stock, par value
$.10 per share (the "Common Stock"), of Burnup & Sims Inc., a Delaware
corporation ("B&S"). The Schedule 13D together with Amendment No. 1,
Amendment No. 2, and Amendment No. 3 are referred to hereinafter as the
"Amended 13D". All capitalized terms used herein and not defined shall
have the meanings set forth in the Amended 13D.
Item 4. Purpose of Transaction.
Item 4 is hereby amended to add the following information:
On March 11, 1994, NBC exchanged (the "Exchange") 3,153,847 shares of
Common Stock owned by it, representing all shares of Common Stock owned by
it, for a $17.5 million principal amount 14% subordinated debenture of NBC
held by B&S and the next succeeding principal payments in the amount of
$592,313 of a promissory note with an outstanding principal amount of
$1,296,000 owed by NBC to Burnup. The Exchange was approved by the
independent directors of the respective Boards of Directors of NBC and B&S
and each of NBC and B&S received opinions from their respective independent
financial advisors regarding the fairness of the transaction. After the
Exchange, NBC has retained no ownership of the Common Stock.
Item 7. Material to be Filed as Exhibits.
Exhibit No.
1. Agreement dated March 11, 1994 between B&S and NBC.
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete
and correct.
NATIONAL BEVERAGE CORP.
By: \s\ Dean A. McCoy
Dean A. McCoy
Vice President
Dated: March 16, 1994
EXHIBIT INDEX
Exhibit No. Document Page No.
1 Agreement dated March 11, 1994
between Burnup & Sims Inc. and
National Beverage Corp.
AGREEMENT
THIS AGREEMENT is made and entered into as of the 11th day of March,
1994, by and between BURNUP & SIMS INC., a Delaware corporation ("Burnup"),
and NATIONAL BEVERAGE CORP., a Delaware corporation ("NBC").
WHEREAS, NBC owns 3,153,847 shares, equal to approximately thirty-six
percent (36%), of the issued and outstanding common stock of Burnup; and
WHEREAS, NBC is indebted to Burnup in the principal amount of
$17,500,000, as evidenced by a $17,500,000 14% Subordinated Debenture
due November 1, 2000 (the "14% Subordinated Debenture"); and
WHEREAS, NBC is indebted to Burnup in the principal amount of
$1,371,430, as evidenced by a $2,050,000 Promissory Note dated April 30,
1992 (the "Promissory Note"); and
WHEREAS, Burnup has entered into an Agreement dated as of October 15,
1993 with the shareholders of Church & Tower, Inc., ("CT"), a Florida
corporation, and Church & Tower of Florida, Inc. ("CTF"), a Florida
corporation, pursuant to which Burnup shall acquire all of the issued and
outstanding common stock of each of CT and CTF (the "Acquisition"); and
WHEREAS, it is a condition to the Acquisition that NBC agree to dispose
of all of the shares of common stock of Burnup owned by it pursuant to this
Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements and covenants set forth herein, the parties hereto do hereby agree
as follows:
1. Redemption of Burnup Shares. Subject to the terms and conditions
hereof, Burnup agrees to redeem and purchase from NBC, and NBC agrees to sell
to Burnup, all of the shares of Burnup common stock owned by NBC for a per
share purchase price of approximately $5.736585 (the "Redemption").
The purchase price for such shares shall be payable by cancellation of
$17,500,000 of the principal amount of the 14% Subordinated Debenture and
by crediting the next succeeding principal payments on the Promissory Note
in the aggregate amount of $592,313. The closing of the Redemption shall
take place immediately following the closing of the Acquisition at the
offices of White & Case, 200 South Biscayne Boulevard, Suite 4900, Miami,
Florida. At the closing, NBC shall deliver to Burnup certificates
representing the Burnup shares to be redeemed, together with stock powers
duly executed to transfer such shares to Burnup. Upon receipt of such
certificates, Burnup shall deliver to NBC duly executed instruments
acknowledging cancellation of such principal amount of NBC indebtedness
under the 14% Subordinated Indenture to Burnup and the original of the 14%
Subordinated Debenture marked "Cancelled", and NBC shall issue a new
debenture to Burnup for the balance of the 14% Subordinated Debenture that
is not prepaid, which new debenture shall contain the same terms and
conditions as the 14% Subordinated Debenture. At the closing, NBC agrees
to pay Burnup all of the accrued and unpaid interest then due and payable
on the principal amount of the 14% Subordinated Debenture which is
cancelled and accrued and unpaid interest through the closing on the
$592,313 principal amount of the Promissory Note.
NBC represents and warrants to Burnup that, at the date of closing, the
shares of Burnup to be so redeemed by Burnup from NBC shall be free and clear
of any and all claims, liens, mortgages, pledges, security interests,
assessments, restrictions, encumbrances or charges of any kind. Burnup
represents and covenants to NBC that, at the date of closing, the principal
amount of the 14% Subordinated Debenture to be so cancelled by Burnup shall
be free and clear of any and all claims, liens, mortgages, pledges, security
interests, assessments, restrictions, encumbrances or charges of any kind.
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2. Fairness Opinions. Neither Burnup nor NBC shall have any obligation
to perform its obligations under this Agreement, and this Agreement shall be
deemed rescinded as if it had never been entered into, unless, prior to the
Redemption, (i) the Board of Directors of Burnup receives the fairness
opinion of Painewebber Incorporated, in acceptable form, to the effect that
the Redemption is fair to the stockholders of Burnup, other than NBC, from a
financial point of view, (ii) the Board of Directors of NBC receives the
fairness opinion of Bear, Stearns & Co. Inc., in acceptable form, to the
effect that the Redemption is fair to the stockholders of NBC, other than IBS
Partners Ltd. and any of its affiliates, from a financial point of view, and
(iii) the Acquisition shall have been consummated.
3. Conditions of Burnup to the Closing. In addition to the conditions
set forth in paragraph 2 hereof, the obligation of Burnup to consummate the
transactions contemplated by this Agreement shall be subject to the
fulfillment of each of the following conditions:
(a) From the date of this Agreement until the date of the closing,
there shall not have been any change in the business of NBC which would have
a material adverse effect on the financial condition of NBC.
(b) The representations and warranties of NBC set forth herein shall be
true and correct in all material respects on and as of the date of the
closing.
(c) The respective Boards of Directors (and, to the extent required, a
committee of the Board of Directors) of NBC and Burnup shall have duly
approved and/or ratified the execution and delivery of this Agreement and the
transactions to be consummated hereby.
(d) There shall be no litigation pending or, to Burnup's knowledge,
threatened, which would adversely affect the execution, delivery or
enforceability of this Agreement, or the ability of Burnup to perform its
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obligations in accordance with the terms hereof, or which would have
a material adverse effect on the financial condition of Burnup.
(e) Neither a voluntary case or other proceeding shall have been
commenced by NBC or Burnup, nor an involuntary case or other proceeding shall
have been commenced against NBC or Burnup, seeking liquidation,
reorganization or other relief with respect to itself or its debts under any
bankruptcy, insolvency or other similar law now or hereafter in effect or
seeking the appointment of a trustee, receiver, liquidator, custodian, or
other similar official of it or any substantial part of its property.
(f) All consents, approvals, orders or authorizations of, or
registrations, declarations or filings with, any court, administrative agency
or commission or other governmental authority or instrumentality, or any
other person or entity required in order to permit the execution and delivery
of this Agreement by Burnup or the consummation by Burnup of the transactions
contemplated hereby shall have been obtained.
(g) Burnup shall have received an opinion of counsel to NBC,
Shereff, Friedman, Hoffman & Goodman, in form reasonably satisfactory to
Burnup, with regard to the matters set forth on Exhibit A annexed hereto.
4. Conditions of NBC to the Closing. In addition to the conditions
set forth in paragraph 2 hereof, the obligation of NBC to consummate the
transactions contemplated by this Agreement shall be subject to the
fulfillment of each of the following conditions:
(a) From the date of this Agreement until the date of the closing,
there shall not have been any change in the business of Burnup which would
have a material adverse effect on the financial condition of Burnup.
(b) The representations and warranties of Burnup set forth herein
shall be true and correct in all material respects on and as of the date of
the closing.
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(c) The respective Boards of Directors (and, to the extent
required, a committee of the Board of Directors) of Burnup and NBC shall have
duly approved and/or ratified the execution and delivery of this Agreement
and the transactions to be consummated hereby.
(d) There shall be no litigation pending or, to NBC's knowledge,
threatened, which would adversely affect the execution, delivery or
enforceability of this Agreement, or the ability of NBC to perform its
obligations in accordance with the terms hereof, or which would have a
material adverse effect on the financial condition of NBC.
(e) Neither a voluntary case or other proceeding shall have been
commenced by Burnup or NBC, nor an involuntary case or other proceeding shall
have been commenced against Burnup or NBC, seeking liquidation,
reorganization or other relief with respect to itself or its debts under any
bankruptcy, insolvency or other similar law now or hereafter in effect or
seeking the appointment of a trustee, receiver, liquidator, custodian, or
other similar official of it or any substantial part of its property.
(f) All consents, approvals, orders or authorizations of, or
registrations, declarations or filings with, any court, administrative agency
or commission or other governmental authority or instrumentality, or any
other person or entity required with respect to NBC in order to permit the
execution and delivery of this Agreement by NBC or the consummation by NBC of
the transactions contemplated herein shall have been obtained.
5. Representations and Warranties. Each party to this Agreement hereby
represents and warrants to the other as of the date hereof and as of the
closing date as follows:
(a) The party is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware.
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(b) The party has full corporate power and authority to enter into
this Agreement and perform its obligations hereunder, and the party has taken
all corporate action (except for actions to be taken by the Board of
Directors and/or committees thereof to effectuate the transactions
contemplated by this Agreement.
(c) Except as set forth in Schedule 5(c) attached hereto and for
approvals by the Board of Directors and/or committees thereof (which
approvals shall have been obtained as of the closing date), no consent,
approval, order or authorization of, or registration, declaration or filing
with, any court, administrative agency or commission or other governmental
authority or instrumentality, or any other person or entity is required by or
with respect to the party in order to permit the execution and delivery of
this Agreement by the party or the consummation by the party of the
transactions contemplated herein.
(d) This Agreement has been duly executed and delivered by such
party and constitutes the valid and binding obligation of the party,
enforceable against it in accordance with its terms, except as the
enforcement thereof may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditor's rights or by
the principles governing the availability of equitable remedies.
(e) The execution and delivery of this Agreement and the
completion of the transactions contemplated herein will not conflict with or
result in the breach of the Certificate of Incorporation or Bylaws of the
party or any order, judgment, decree, statute, law, regulation, indenture or
material agreement to which the party is subject.
6. Representations and Warranties of NBC. NBC hereby represents and
warrants to Burnup as of the date hereof and as of the closing date as
follows:
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(a) NBC owns 3,153,847 shares of the issued and outstanding
common stock of Burnup. NBC owns all of such shares free and clear of all
claims, liens, mortgages, pledges, security interests, assessments,
restrictions, encumbrances or charges of any kind.
(b) NBC is not insolvent under applicable Federal and state
bankruptcy law and will not be rendered insolvent by the transactions
contemplated hereby and, after giving effect to such transactions, NBC will
not be left with unreasonably small capital with which to engage in its
business.
7. Termination Date. In the event the transactions described herein
have not taken place on or before March 31, 1994, then this Agreement shall
be deemed rescinded as if it had never been entered into, and neither party
shall have any further obligations or liabilities to the other with respect
to the matters set forth herein.
8. Termination of Registration Rights Agreement. The agreement dated
as of February 8, 1991, by and between Burnup and NBC granting certain rights
to NBC to register its shares of the common stock of Burnup, shall be deemed
terminated and of no further force and effect upon consummation of the
transactions contemplated hereby.
9. Miscellaneous.
(a) This Agreement shall be binding upon, and inure to the benefit of,
the parties hereto and their respective successors and permitted assigns.
Except to the extent expressly permitted herein, this Agreement may not be
assigned without the prior written consent of the other party hereto.
(b) Any and all fees, costs and expenses incurred by a party in
connection with the negotiation, preparation or performance of this Agreement
shall be borne by the respective party incurring such expenses.
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(c) Each party represents and warrants to the other party that the
contracts and negotiations relative to this Agreement and the transactions
contemplated hereby have been arrived on in such a manner as not to give rise
to any liability to the other party for a broker's, agent's, finder's,
advisor's or similar fee or commission in connection with this Agreement or
the transactions which are subject hereof, and each party agrees that it will
indemnify and hold harmless the other party from any loss, liability, cost or
expenses accruing from or resulting by reason of its breach of this
provision.
(d) This Agreement shall constitute the entire understanding and
agreement between the parties regarding the subject matter hereof.
(e) No amendment, modification, waiver or discharge of this Agreement or
any provision hereof shall be effective against any party, unless such party
shall have consented thereto in writing.
(f) Each of the parties to this Agreement, when requested by the other
party, shall execute and deliver all documents and perform all acts
reasonably requested by the other party in order more effectively to
consummate any of the transactions contemplated hereby, and shall give all
reasonable and necessary cooperation with respect to any reasonable matters
relating to the transactions contemplated by this Agreement.
(g) All notices, requests, claims, demands and other communications
required or allowed under this Agreement shall be in writing and shall be
deemed given upon (i) hand-delivery, or (ii) deposit of same with Federal
Express (or similar overnight courier service), and correctly addressed to
the party for whom it is intended at the address given below, or such other
address as may have been most specified by a notice given as aforesaid:
If to Burnup: Burnup & Sims Inc.
One North University Drive
Ft. Lauderdale, Florida 33324
Attn.: President
with a copy to: Michael Brenner, Esq.
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General Counsel
Burnup & Sims Inc.
One North University Drive
Ft. Lauderdale, Florida 33324
If to NBC: National Beverage Corp.
One North University Drive
Ft. Lauderdale, Florida 33324
Attn.: President
with a copy to: Shereff, Friedman, Hoffman &
Goodman
919 Third Avenue
New York, New York 10022
Attn.: Martin Nussbaum, Esq.
(h) This Agreement shall be construed and governed for all purposes by
the laws of the State of New York without giving effect to the principles of
conflicts of laws thereof.
IN WITNESS WHEREOF, this Agreement has been executed and delivered as of
the date first written above.
BURNUP & SIMS INC.
By: \s\George R. Bracken
____________________________
Its: Vice President
NATIONAL BEVERAGE CORP.
By: \s\Joseph Caporella
_____________________________
Its: Executive Vice President
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