UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 1)*
Golden Poultry Company, Inc.
(Name of Issuer)
Common Stock, no par value
(Title of Class of Securities)
381151109
(CUSIP Number)
Jack L. Lawing, Esq.
General Counsel, Vice President & Secretary
Gold Kist Inc.
244 Perimeter Center Parkway, N.E.
Atlanta, Georgia 30346-2397
(770) 393-5000
(Name, Address and Telephone Number of Person Authorized to
Receive Notices and Communications)
April 22, 1997
(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 if a fee is being paid with the
statement _X_ (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. 381151109
1 Name of reporting person
Gold Kist Inc.
S.S. or I.R.S. Identification No. of above person
58-0255560
2 Check the appropriate box if a member of a group (a)______
(b)______
3 SEC use only
4 Source of funds*
WC OO BK
5 Check box if disclosure of legal proceedings is required
pursuant to items 2(d) or 2(e)________
6 citizenship or place of organization
Georgia
NUMBER OF 7 Sole voting power
SHARES 10,901,802
BENEFICIALLY
OWNED BY 8 Shared voting power
EACH
REPORTING 9 Sole dispositive power
PERSON 10,901,802
WITH 10 Shared dispositive power
11 Aggregate amount beneficially owned by each reporting
person
10,901,802
12 Check box if the aggregate amount in row (11) excludes
certain shares ______
13 Percent of class represented by amount in row (11)
75%
14 Type of reporting person*
CO
Item 3. Source and Amount of Funds or Other Consideration
The second paragraph of Item 3 is deleted and replaced with
the following paragraph:
On January 13, 1997, the Board of Directors of
Gold Kist adopted a resolution authorizing the
officers of Gold Kist to negotiate with the Company
to pursue a transaction in which Gold Kist would
acquire all of the shares of the Company's Common
Stock not currently owned by Gold Kist, so that the
Company would become an indirect wholly owned
subsidiary of Gold Kist. Those negotiations have
been completed and an Agreement and Plan of Merger
was executed on April 22, 1997 (the "Merger
Agreement") among Gold Kist, the Company, Agri
International, Inc. and Golden Poultry Acquisition
Corp., as further described in Item 4 It is
currently anticipated that all funds needed by Gold
Kist to acquire the shares of Common Stock pursuant
to the Merger Agreement will be obtained from Gold
Kist's working capital and advances under existing
Gold Kist credit facilities.
Item 4. Purpose of Transaction
Item 4 is deleted in its entirety and replaced with the
following:
Gold Kist purchased the shares of Common Stock
from the directors and officers named in Item 3
above, and has entered into the Merger Agreement
pursuant to which Gold Kist (subject to certain
conditions precedent) will acquire the remaining
shares of the Company's Common Stock that Gold Kist
does not currently own, for the purpose of acquiring
100% of the Company's Common Stock and causing the
Company to become an indirect wholly owned
subsidiary of Gold Kist. The January 1997 purchases
from directors and officers were ordered by the
Court in the Windham Case. The pending purchase by
Gold Kist of the remaining shares of the Company's
Common Stock not currently owned by Gold Kist was
not ordered in such Final Judgment and Decree, but
has been deemed by the Gold Kist Board of Directors
to be in the best interests of the members of Gold
Kist. All of such remaining shares of the Company's
Common Stock are publicly traded, and upon
consummation of the purchase by Gold Kist, Golden
Poultry will no longer have any shares of Common
Stock trading in the public securities markets.
Pursuant to the Merger Agreement, Gold Kist has
agreed to pay $14.25 per share in cash for each
outstanding share of Common Stock not already
beneficially owned by Gold Kist. The transaction
will be effected by a merger (the "Merger"),
pursuant to which Golden Poultry Acquisition Corp.,
a wholly owned subsidiary of Agri International,
Inc. that has been formed specifically for this
purpose, will be merged into the Company, with the
Company as the surviving corporation. Upon
consummation of the Merger, each share of Common
Stock outstanding immediately prior to such
consummation (other than shares beneficially held by
Gold Kist or held by the Company in treasury) shall
be converted into the right to receive $14.25 in
cash, without interest; provided, however, that each
holder of such shares shall have dissenters' rights
in accordance with applicable state law. All
treasury shares and all shares held by Gold Kist
shall be canceled with no payment being made
therefor. Each share of common stock of Golden
Poultry Acquisition Corp. outstanding immediately
prior to the consummation of the Merger shall be
converted into and become one share of common stock
of the surviving corporation with the same rights,
powers and privileges as the shares so converted and
shall constitute the only outstanding shares of
capital stock of the surviving corporation.
The Company has agreed to prepare, file with the
SEC and send to all shareholders of the Company
other than Gold Kist (the "Public Shareholders") a
proxy statement, requesting that each such Public
Shareholder vote in favor of the Merger Agreement
and the transactions contemplated thereby. Under
applicable state law and the Merger Agreement,
approval of the Merger Agreement requires two
affirmative shareholder votes: (i) a majority of the
shares outstanding, which is assured because Gold
Kist has agreed to cause its 75% of the shares to
vote affirmatively; and (ii) a majority of the
shares held by the Public Shareholders. In addition
to such vote requirements, the Merger Agreement
requires that certain other customary conditions be
satisfied prior to consummation of the Merger,
including, without limitation, that the investment
advisers engaged by each of Gold Kist and the
Company shall have delivered, have reaffirmed and
not have withdrawn the fairness opinions delivered
by such advisers in connection with the Merger. If
the Merger has not been consummated by September 30,
1997, either Gold Kist or the Company may terminate
the Merger Agreement.
The foregoing response to this Item 4 is qualified
in its entirety by reference to the Merger
Agreement, the full text of which is set forth in
Exhibit 3 hereto.
Item 6. Contracts, Arrangements, Understandings or
Relationships with Respect to Securities of the Issuer
Item 6 is deleted in its entirety and replaced with the
following:
Other than the Merger Agreement described in Item
4, there are no contracts, arrangements or
understandings among or between Gold Kist, its
officers or directors, or the Company with respect
to the Common Stock. No director or officer of Gold
Kist owns any shares of Common Stock. Gold Kist
controls the Company through its current 75%
ownership of the Company's Common Stock and, if the
transactions contemplated by the Merger Agreement
are consummated, Gold Kist will acquire the
remaining Common Stock and the Company will become
an indirect wholly owned subsidiary of Gold Kist.
Item 7. Material to Be Filed as Exhibits
The following Exhibit is filed as part of this Amendment
No. 1 to Schedule 13D:
Exhibit 3 Agreement and Plan of Merger dated April 22,
1997 among Gold Kist Inc., Agri International,
Inc., Golden Poultry Acquisition Corp., and
Golden Poultry Company, Inc.
Signature
After reasonable inquiry and to the best knowledge and
belief of the undersigned, the information set forth in this
statement is true, complete and correct.
Dated: April 25, 1997
GOLD KIST INC.
/s/ Jack L. Lawing
Jack L. Lawing
General Counsel, Vice
President & Secretary
EXHIBIT INDEX
TO AMENDMENT NO. 1 TO SCHEDULE 13D
Sequential
Exhibit Page No.
3 Agreement and Plan of Merger dated
April 22, 1997 among Gold Kist Inc.,
Agri International, Inc., Golden Poultry
Acquisition Corp., and Golden Poultry
Company, Inc. __
AGREEMENT AND PLAN OF MERGER
DATED AS OF
APRIL 22, 1997
AMONG
GOLDEN POULTRY COMPANY, INC.,
GOLD KIST INC.,
AGRI INTERNATIONAL, INC.
AND
GOLDEN POULTRY ACQUISITION CORP.
TABLE OF CONTENTS
ARTICLE I
THE MERGER
SECTION 1.1 Company Action 2
1.2 The Merger 2
1.3 Conversion of Shares 2
1.4 Surrender and Payment 3
1.5 Dissenting Shares 4
1.6 Stock Options 4
ARTICLE II
THE SURVIVING CORPORATION
SECTION 2.1 Articles of Incorporation 4
2.2 Bylaws 4
2.3 Directors and Officers 4
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
SECTION 3.1 Corporate Existence and Power 5
3.2 Corporate Authorization 5
3.3 Governmental Authorization 5
3.4 Non-Contravention 5
3.5 Capitalization 6
3.6 Company Subsidiaries 6
3.7 SEC Filings 6
3.8 Financial Statements 6
3.9 Disclosure Documents 7
3.10 Finders' and Bankers' Fees 7
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF BUYER
SECTION 4.1 Corporate Existence and Power 7
4.2 Corporate Authorization 8
4.3 Governmental Authorization 8
4.4 Non-Contravention 8
4.5 Disclosure Documents 8
4.6 Finders' and Bankers' Fees 8
ARTICLE V
COVENANTS OF THE COMPANY
SECTION 5.1 Conduct of the Company 9
5.2 Shareholder Meeting;
Proxy Material 10
5.3 Access to Information 10
5.4 Other Potential Bidders 10
5.5 Notices of Certain Events 11
ARTICLE VI
COVENANTS OF BUYER
SECTION 6.1 Voting of Shares 11
6.2 Director and Officer Liability 11
6.3 Notices of Certain Events 12
6.4 Split Dollar Life Insurance 12
ARTICLE VII
COVENANTS OF BUYER AND THE COMPANY
SECTION 7.1 Best Efforts 12
7.2 Certain Filings 12
7.3 Public Announcements 13
7.4 Further Assurances 13
ARTICLE VIII
CONDITIONS TO THE MERGER
SECTION 8.1 Conditions to the Obligations
of Each Party 13
8.2 Additional Conditions to the
Obligations of Buyer and
Merger Subsidiary 14
8.3 Additional Conditions to the
Obligations of the Company 15
ARTICLE IX
TERMINATION
SECTION 9.1 Termination 15
9.2 Effect of Termination 16
ARTICLE X
MISCELLANEOUS
SECTION 10.1 Definitions 16
10.2 Notices 18
10.3 No Survival of Representations
and Warranties 19
10.4 Amendments; No Waivers 19
10.5 Fees and Expenses 20
10.6 Successors and Assigns 20
10.7 Governing Law 20
10.8 Severability 20
10.9 Captions 20
10.10 Interpretations 20
10.11 Counterparts; Effectiveness 21
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER is made as of April
22, 1997, by and among GOLDEN POULTRY COMPANY, INC., a
Georgia corporation (the "Company"), GOLD KIST INC., a
Georgia cooperative ("Gold Kist"), AGRI INTERNATIONAL, INC.,
a Georgia corporation and a wholly owned subsidiary of Gold
Kist ("Agri") (Gold Kist and Agri are sometimes referred to
collectively as "Buyer"), and GOLDEN POULTRY ACQUISITION
CORP., a Georgia corporation and a wholly owned subsidiary
of Agri ("Merger Subsidiary").
WHEREAS:
A. The authorized capital stock of the Company
consists of (i) 20,000,000 shares of common stock, no par
value (the "Company Common Stock"), of which 14,628,435
shares were issued and outstanding as of close of business
on April 19, 1997, and (ii) 1,000,000 shares of Preferred
Stock, $1 par value (the "Preferred Stock"), none of which
shares are issued and outstanding as of the date hereof.
B. Agri currently owns, and immediately prior to the
Effective Time will own, 10,901,802 shares of Company Common
Stock representing 75% of the total issued and outstanding
Company Common Stock.
C. A special negotiating committee of the Board of
Directors of the Company appointed on January 23, 1997 and
comprised entirely of directors who are neither members of
management of the Company nor affiliated with Buyer or any
Affiliate of Buyer (other than the Company) (the "Special
Committee") has unanimously determined that the Merger is
fair to and in the best interests of the shareholders of the
Company other than Buyer (the "Public Shareholders") and has
unanimously approved this Agreement and unanimously
recommends its approval and adoption by the Board of
Directors and by the shareholders of the Company.
D. The Board of Directors of the Company, based in
part on the recommendation of the Special Committee,
determined that the Merger is fair and in the best interests
of the Public Shareholders and has resolved to approve and
adopt this Agreement and the transactions contemplated
hereby and, subject to the terms and conditions set forth
herein, to recommend the approval and adoption of this
Agreement and the Merger by the shareholders of the Company.
E. The Board of Directors of the Company, and Gold
Kist, Agri and Merger Subsidiary, subject to the approvals
of their respective Boards of Directors, each have approved
the merger of Merger Subsidiary with and into the Company
(the "Merger") in accordance with the Georgia Business
Corporation Code (the "GBCC") with respect to the Company,
Agri and Merger Subsidiary, and the Georgia Cooperative
Marketing Act (the "GCMA") with respect to Gold Kist, and
the terms and conditions provided below, pursuant to which
each Share (other than Shares held by the Company as
treasury stock, Shares owned by Buyer immediately prior to
the Effective Time and Shares as to which appraisal rights
have been perfected) shall be converted into the right to
receive the Merger Consideration.
F. Certain capitalized terms used herein are defined
in Section 10.1.
NOW, THEREFORE, in consideration of the premises and
the mutual covenants, representations, warranties and
agreements herein contained, the parties hereto agree as
follows:
ARTICLE I
THE MERGER
SECTION 1.1 Company Action. The Company represents
that its Board of Directors, at a meeting duly called and
held and acting, in part, on the unanimous recommendation of
the Special Committee, has (i) unanimously determined that
this Agreement and the transactions contemplated hereby,
including the Merger, are fair to and in the best interests
of the Public Shareholders, (ii) unanimously approved and
adopted this Agreement and the transactions contemplated
hereby, including the Merger, and (iii) unanimously resolved
to recommend approval and adoption of this Agreement and the
Merger by the Company's shareholders, provided, that such
recommendation may be withdrawn, modified or amended by the
Board of Directors of the Company if the Board deems such
withdrawal, modification or amendment necessary in light of
its fiduciary obligations to the Company's shareholders
after consultation with counsel.
SECTION 1.2 The Merger. (a) At the Effective Time,
Merger Subsidiary shall be merged with and into the Company
in accordance with the GBCC, whereupon the separate
existence of Merger Subsidiary shall cease, and the Company
shall be the Surviving Corporation.
(b) As soon as practicable after satisfaction or, to
the extent permitted hereunder, waiver of all conditions to
the Merger, the Company and Merger Subsidiary will file a
certificate of merger with the Secretary of State of the
State of Georgia and make all other filings or recordings
required by the GBCC in connection with the Merger. The
Merger shall become effective at such time as such
certificate of merger is duly filed with the Secretary of
State of the State of Georgia or at such later time as is
specified in such certificate of merger (the "Effective
Time").
(c) From and after the Effective Time, the Surviving
Corporation shall possess all the rights, privileges, powers
and franchises and be subject to all of the restrictions,
disabilities and duties of the Company and Merger
Subsidiary, all as provided under the GBCC.
SECTION 1.3 Conversion of Shares. At the Effective
Time:
(a) each share of Company Common Stock (a "Share")
outstanding immediately prior to the Effective Time shall,
except as otherwise provided in Section 1.3(b) or as
provided in Section 1.5 with respect to Shares as to which
appraisal rights have been perfected, be converted into the
right to receive $14.25 in cash, without interest (the
"Merger Consideration");
(b) each Share held by the Company as treasury stock,
and each Share held by Agri, immediately prior to the
Effective Time shall be canceled, and no payment shall be
made with respect thereto; and
(c) each share of common stock of Merger Subsidiary
outstanding immediately prior to the Effective Time shall be
converted into and become one share of common stock of the
Surviving Corporation with the same rights, powers and
privileges as the shares so converted and shall constitute
the only outstanding shares of capital stock of the
Surviving Corporation.
SECTION 1.4 Surrender and Payment. (a) At or prior to
the Effective Time, the Company shall appoint SunTrust Bank,
Atlanta as agent (the "Exchange Agent") for the purpose of
exchanging certificates representing Shares for the Merger
Consideration. At the Effective Time, Agri shall, and Gold
Kist shall cause Agri to, make available to the Exchange
Agent the Merger Consideration to be paid in respect of all
outstanding Shares entitled thereto as to which appraisal
rights have not been exercised. At or prior to the
Effective Time, the Company or Surviving Corporation will
send, or will cause the Exchange Agent to send, to each
holder of Shares at the Effective Time a letter of
transmittal for use in such exchange (which shall specify
that the delivery shall be effected, and risk of loss and
title shall pass, only upon proper delivery of the
certificates representing Shares to the Exchange Agent).
(b) Each holder of Shares that have been converted
into a right to receive the Merger Consideration, upon
surrender to the Exchange Agent of a certificate or
certificates representing such Shares, together with a
properly completed letter of transmittal covering such
Shares, will be entitled to receive the Merger Consideration
payable in respect of such Shares. Until so surrendered,
each such certificate shall, after the Effective Time,
represent for all purposes, only the right to receive such
Merger Consideration.
(c) If any portion of the Merger Consideration is to
be paid to a Person other than the registered holder of the
Shares represented by the certificate or certificates
surrendered in exchange therefor, it shall be a condition to
such payment that the certificate or certificates so
surrendered shall be properly endorsed or otherwise be in
proper form for transfer and that the Person requesting such
payment shall pay to the Exchange Agent any transfer or
other taxes required as a result of such payment to a Person
other than the registered holder of such Shares or establish
to the satisfaction of the Exchange Agent that such tax has
been paid or is not payable.
(d) After the Effective Time, there shall be no
further registration of transfers of Shares. If, after the
Effective Time, certificates representing Shares are
presented to the Surviving Corporation, they shall be
canceled and exchanged for the Merger Consideration provided
for, and in accordance with the procedures set forth, in
this Article I.
(e) Any portion of the Merger Consideration made
available to the Exchange Agent pursuant to Section 1.4(a)
that remains unclaimed by the holders of Shares one year
after the Effective Time shall be returned within one week
after the end of such one year period, without further
action or request, to the Buyer, and any such holder who has
not exchanged his Shares for the Merger Consideration in
accordance with this Section prior to that time shall
thereafter look only to the Buyer for payment of the Merger
Consideration in respect of his Shares. Notwithstanding the
foregoing, neither Buyer nor the Surviving Corporation shall
be liable to any holder of Shares for any amount paid to a
public official pursuant to applicable abandoned property
Laws. Any amounts remaining unclaimed by holders of Shares
two years after the Effective Time (or such earlier date
immediately prior to such time as such amounts would
otherwise escheat to or become property of any governmental
entity) shall, to the extent permitted by applicable Law,
become the property of the Buyer free and clear of any
claims or interest of any Person previously entitled
thereto; provided, however, that nothing herein shall limit
the obligations of the Buyer under Section 1.4(b).
SECTION 1.5 Dissenting Shares. Notwithstanding
Section 1.3, Shares outstanding immediately prior to the
Effective Time and held by a holder who has not voted in
favor of the Merger or consented thereto in writing and who
has demanded appraisal for such Shares in accordance with
the GBCC shall not be converted into a right to receive the
Merger Consideration, but shall be converted into the right
to receive such consideration as may be determined to be due
in respect of such dissenting Shares pursuant to Article 13
of the GBCC; provided, however, that if the holder of such
dissenting Shares shall have failed to perfect or shall have
waived, rescinded or otherwise lost (in each such instance,
to the reasonable satisfaction of the Surviving Corporation)
its status as a "dissenting shareholder" pursuant to Article
13 of the GBCC, then such holder of dissenting Shares shall
forfeit the right to dissent from the Merger and such Shares
shall thereupon be deemed to have been converted into the
right to receive, as of the Effective Time, the Merger
Consideration. The Company shall give Buyer prompt notice
of any demands received by the Company for appraisal of
Shares, and Buyer shall have the right to participate in all
negotiations and proceedings with respect to such demands.
The Company shall not, except with the prior written consent
of Buyer, make any payment with respect to, or settle or
offer to settle, any such demands.
SECTION 1.6 Stock Options. Buyer and the Company
shall take all steps reasonably necessary such that,
pursuant to Section 7.1 of the Company's 1988 Long-Term
Incentive Plan (the "Incentive Plan"), the Company shall
give written notice to the holders of all options
("Options") granted under the Incentive Plan that are
outstanding on the date hereof that (a) such Options shall
be exercisable in full on a date that is at least thirty
days prior to the date on which the Effective Time is
expected to occur, and (b) that all Options that are not
exercised during such thirty-day period will terminate. In
addition, the written notice to each such holder shall
include an offer by Buyer to pay for the cancellation of
such holder's Options an amount in cash determined by
multiplying (1) the excess, if any, of the Merger
Consideration over the applicable exercise price per share
of the Option by (2) the number of Shares such holder could
have purchased had such holder exercised such Option in full
immediately prior to the Effective Time, and each such
Option shall thereafter be canceled.
ARTICLE II
THE SURVIVING CORPORATION
SECTION 2.1 Articles of Incorporation. The articles
of incorporation of the Company in effect at the Effective
Time shall be the articles of incorporation of the Surviving
Corporation until amended in accordance with applicable Law.
SECTION 2.2 Bylaws. The bylaws of the Company in
effect at the Effective Time shall be the bylaws of the
Surviving Corporation until amended in accordance with
applicable Law.
SECTION 2.3 Directors and Officers. From and after
the Effective Time, until successors are duly elected or
appointed and qualified in accordance with applicable Law,
(i) the directors of Merger Subsidiary at the Effective Time
shall be the directors of the Surviving Corporation, and
(ii) the officers of the Company at the Effective Time shall
be the officers of the Surviving Corporation.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to Buyer that:
SECTION 3.1 Corporate Existence and Power. The
Company is a corporation duly incorporated, validly existing
and in good standing under the Laws of the State of Georgia,
and has all corporate powers and approvals required to
carry on its business as now conducted.
SECTION 3.2 Corporate Authorization. The execution,
delivery and performance by the Company of this Agreement
and the consummation by the Company of the transactions
contemplated hereby are within the Company's corporate
powers and, except for any required approval by the
Company's shareholders in connection with the consummation
of the Merger, this Agreement will have been duly authorized
by all necessary corporate action. This Agreement
constitutes a valid and binding agreement of the Company.
SECTION 3.3 Governmental Authorization. The
execution, delivery and performance by the Company of this
Agreement and the consummation of the Merger by the Company
require no action by or in respect of, or filing with, any
Governmental Authority other than (i) the filing of a
certificate of merger in accordance with the GBCC; and (ii)
compliance with applicable requirements of the Securities
Exchange Act of 1934, as amended, and the rules and
regulations promulgated thereunder (the "Exchange Act").
SECTION 3.4 Non-Contravention. The execution,
delivery and performance by the Company of this Agreement
and the consummation by the Company of the transactions
contemplated hereby do not and will not (i) contravene or
conflict with the articles of incorporation or bylaws of the
Company, or (ii) assuming compliance with the matters
referred to in Section 3.3, contravene or conflict with or
constitute a violation of any provision of any Law or Order
binding upon or applicable to the Company or any Company
Subsidiary.
SECTION 3.5 Capitalization. The authorized capital
stock of the Company consists of 20,000,000 authorized
shares of Company Common Stock and 1,000,000 authorized
shares of Preferred Stock. As of March 31, 1997, (a)
14,982,292 shares of Company Common Stock were issued and
outstanding, (b) 358,479 shares of Company Common Stock were
held in the treasury of the Company, and (c) 151,422 shares
of Company Common Stock were reserved for future issuance
pursuant to outstanding employee stock options granted
pursuant to the Incentive Plan. As of March 31, 1997, (a)
no shares of Preferred Stock were issued and outstanding,
and (b) no shares of Preferred Stock were held in the
treasury of the Company. All outstanding shares of Company
Common Stock have been duly authorized and validly issued
and are fully paid and nonassessable. Except as set forth
in this Section and except for changes since March 31, 1997,
resulting from the exercise of employee stock options
outstanding on such date, there are outstanding (i) no
shares of capital stock or other voting securities of the
Company, (ii) no securities of the Company convertible into
or exchangeable for shares of capital stock or voting
securities of the Company, and (iii) no options or other
rights to acquire from the Company, and no obligation of the
Company to issue, any capital stock, voting securities or
securities convertible into or exchangeable for capital
stock or voting securities of the Company (the items in
clauses (i), (ii) and (iii) being referred to collectively
as the "Company Securities"). There are no outstanding
obligations of the Company or any Company Subsidiary to
repurchase, redeem or otherwise acquire any Company
Securities.
SECTION 3.6 Company Subsidiaries. All of the
outstanding capital stock of, or other ownership interests
in, each Company Subsidiary owned by the Company is owned
free and clear of any Lien and free of any other limitation
or restriction (including any restriction on the right to
vote, sell or otherwise dispose of such capital stock or
other ownership interests). There are no outstanding (i)
securities of the Company or any Company Subsidiary
convertible into or exchangeable for shares of capital stock
or other voting securities or ownership interests in any
Company Subsidiary, and (ii) options or other rights to
acquire from the Company or, to the knowledge of the
Company, any Company Subsidiary, and no other obligation of
the Company or, to the knowledge of the Company, any Company
Subsidiary to issue, any capital stock, voting securities or
other ownership interests in, or any securities convertible
into or exchangeable for any capital stock, voting
securities or ownership interests in, any Company Subsidiary
(the items in clauses (i) and (ii) being referred to
collectively as the "Subsidiary Securities"). There are no
outstanding obligations of the Company or, to the knowledge
of the Company, any Company Subsidiary to repurchase, redeem
or otherwise acquire any outstanding Subsidiary Securities.
SECTION 3.7 SEC Filings. The Company has delivered to
Buyer (i) the Annual Report on Form 10-K for its fiscal year
ended June 29, 1996 (the "Company 10-K"), (ii) its proxy or
information statements relating to meetings of, or actions
taken without a meeting by, the shareholders of the Company
held since October 23, 1996, and (iii) all of its other
reports, statements, schedules and registration statements
filed with the Securities and Exchange Commission (the
"SEC") since June 29, 1996.
SECTION 3.8 Financial Statements. The audited
consolidated financial statements and unaudited consolidated
interim financial statements of the Company included in the
Company 10-K and in the Quarterly Reports on Form 10-Q filed
for quarterly periods of fiscal year 1997 (the "Company 10-
Qs") fairly present, in conformity with GAAP (except as may
be indicated in the notes thereto), the consolidated
financial position of the Company and its consolidated
Company Subsidiaries as of the dates thereof and their
consolidated statements of operations and of cash flows for
the periods then ended (subject to normal year-end
adjustments in the case of any unaudited interim financial
statements).
SECTION 3.9 Disclosure Documents. (a) Each document
required to be filed by the Company with the SEC in
connection with the transactions contemplated by this
Agreement (the "Company Disclosure Documents"), including,
without limitation, the proxy statement of the Company (the
"Company Proxy Statement") to be filed with the SEC in
connection with the Merger, and any amendments or
supplements thereto will, when filed, comply as to form in
all material respects with the applicable requirements of
the Exchange Act.
(b) At the time the Company Proxy Statement or any
amendment or supplement thereto is first mailed to
shareholders of the Company, at the time such shareholders
vote on adoption of this Agreement, and at the Effective
Time, the Company Proxy Statement, as supplemented or
amended, if applicable, will not contain any untrue
statement of a material fact or omit to state any material
fact necessary in order to make the statements made therein,
in the light of the circumstances under which they were
made, not misleading. At the time of the filing of any
Company Disclosure Document other than the Company Proxy
Statement and at the time of any distribution thereof, such
Company Disclosure Document will not contain any untrue
statement of a material fact or omit to state a material
fact necessary in order to make the statements made therein,
in the light of the circumstances under which they were
made, not misleading. The representations and warranties
contained in this Section 3.9(b) will not apply to
statements or omissions included in any Company Disclosure
Documents (including, without limitation, the Company Proxy
Statement) based upon information furnished to the Company
in writing by Buyer specifically for use therein.
SECTION 3.10 Finders' and Bankers' Fees. Except for
The Robinson-Humphrey Company, Inc. ("R-H"), a copy of whose
engagement agreement has been provided to Buyer, there is no
investment banker, broker, finder or other intermediary
which has been retained by or is authorized to act on behalf
of the Company, the Special Committee or any Company
Subsidiary who might be entitled to any fee or commission
from Buyer or any of its Affiliates upon consummation of the
transactions contemplated by this Agreement.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to the Company that:
SECTION 4.1 Corporate Existence and Power. Each of
Gold Kist, Agri and Merger Subsidiary is a corporation duly
incorporated, validly existing and in good standing under
the laws of the State of Georgia, and each has all corporate
powers and all material governmental licenses,
authorizations, consents and approvals required to
consummate the transactions contemplated by this Agreement.
Since the date of its incorporation, Merger Subsidiary has
not engaged in any material activities other than in
connection with or as contemplated by this Agreement.
SECTION 4.2 Corporate Authorization. The execution,
delivery and performance by Gold Kist, Agri and Merger
Subsidiary of this Agreement and the consummation by Gold
Kist, Agri and Merger Subsidiary of the transactions
contemplated hereby are within the corporate powers of Gold
Kist, Agri and Merger Subsidiary and, upon approval and
adoption of this Agreement by the respective Board of
Directors of each such corporation, will have been duly
authorized by all necessary corporate action. This
Agreement constitutes a valid and binding agreement of Gold
Kist, Agri and Merger Subsidiary.
SECTION 4.3 Governmental Authorization. The
execution, delivery and performance by Gold Kist, Agri and
Merger Subsidiary of this Agreement and the consummation by
Gold Kist, Agri and Merger Subsidiary of the transactions
contemplated by this Agreement require no action by or in
respect of, or filing with, any Governmental Authority other
than (i) the filing of a certificate of merger in accordance
with the GBCC and (ii) compliance with any applicable
requirements of the Exchange Act.
SECTION 4.4 Non-Contravention. The execution,
delivery and performance by Gold Kist, Agri and Merger
Subsidiary of this Agreement and the consummation by Gold
Kist, Agri and Merger Subsidiary of the transactions
contemplated hereby do not and will not (i) contravene or
conflict with the articles of incorporation or bylaws of
Gold Kist, Agri or Merger Subsidiary, or (ii) assuming
compliance with the matters referred to in Section 4.3,
contravene or conflict with any material provision of Law or
Order binding upon or applicable to Gold Kist, Agri or
Merger Subsidiary.
SECTION 4.5 Disclosure Documents. The information
with respect to Buyer and its Affiliates that Buyer
furnishes to the Company in writing specifically for use in
any Company Disclosure Document will not contain any untrue
statement of a material fact or omit to state any material
fact necessary in order to make the statements made therein,
in the light of the circumstances under which they were
made, not misleading (i) in the case of the Company Proxy
Statement at the time the Company Proxy Statement or any
amendment or supplement thereto is first mailed to
shareholders of the Company, at the time the shareholders
vote on adoption of this Agreement and at the Effective
Time, and (ii) in the case of any Company Disclosure
Document other than the Company Proxy Statement, at the time
of the filing thereof and at the time of any distribution
thereof.
SECTION 4.6 Finders' and Bankers' Fees. There is no
investment banker, broker, finder or other intermediary
which has been retained by or is authorized to act on behalf
of Buyer who might be entitled to any fee or commission from
the Company or any of the Company Subsidiaries if the
transactions contemplated by this Agreement are not
consummated.
ARTICLE V
COVENANTS OF THE COMPANY
The Company agrees that:
SECTION 5.1 Conduct of the Company. From the date
hereof until the Effective Time, the Company and the Company
Subsidiaries shall conduct their business in the ordinary
course consistent with past practice and (except for acts in
connection with the Merger) shall use their best efforts to
preserve intact their business organizations and
relationships with third parties and to keep available the
services of their present officers and employees. Without
limiting the generality of the foregoing, from the date
hereof until the Effective Time, without the consent of
Buyer:
(a) the Company will not adopt or propose any change
in its articles of incorporation or bylaws;
(b) the Company will not, and will not permit any
Company Subsidiary to, acquire, whether by purchase of
equity securities, merger or consolidation, any other Person
or acquire a material amount of assets of any other Person
except (i) pursuant to existing contracts or commitments or
(ii) in the ordinary course consistent with the past
practice;
(c) the Company will not, and will not permit any
Company Subsidiary to, sell, lease, license or otherwise
dispose of any material assets or property except (i)
pursuant to existing contracts or commitments and (ii) in
the ordinary course consistent with past practice;
(d) except as otherwise contemplated herein, the
Company will not, and will not permit any Company Subsidiary
to, agree or commit to do any of the foregoing;
(e) the Company will not authorize for issuance,
issue, sell, deliver or agree or commit to issue, sell or
deliver (whether through the issuance or granting of
options, warrants, commitments, subscriptions, rights to
purchase or otherwise) any stock of any class or any other
securities or equity equivalents (including, without
limitation, any stock options or stock appreciation rights),
except as required by outstanding options or stock
appreciation rights under the Incentive Plan as in effect as
of the date hereof, or amend any of the terms of any such
securities, options or rights outstanding as of the date
hereof, except as specifically contemplated by this
Agreement;
(f) the Company will not split, combine or reclassify
shares of its capital stock, declare, set aside or pay any
dividend or other distribution (whether in cash, stock or
property or any combination thereof) in respect of its
capital stock (other than regular quarterly dividends of not
more than $.01 per share on Company Common Stock declared
and paid on dates consistent with past practice), or redeem
or otherwise acquire any of its securities or any securities
of the Company Subsidiaries; and
(g) the Company will not, and will not permit any
Company Subsidiary to, except as may be required by Law,
enter into, adopt or amend or terminate any bonus, profit
sharing, compensation, severance, termination, stock option,
stock appreciation right, restricted stock, performance
unit, stock equivalent, stock purchase agreement, pension,
retirement, deferred compensation, employment, severance or
other employee benefit agreement, trust, plan, fund or other
arrangement for the benefit or welfare of any director,
officer of employee in any manner, or (except for normal
increases in the ordinary course of business consistent with
past practice that, in the aggregate, do not result in a
material increase in benefits or compensation expense to the
Company, or as required under existing agreements) increase
in any manner the compensation or fringe benefits of any
director, officer or employee or pay any benefit not
required by any plan and arrangement as in effect as of the
date hereof (including, without limitation, the granting of
stock appreciation rights or performance units).
SECTION 5.2 Shareholder Meeting; Proxy Material. The
Company shall cause a meeting of its shareholders (the
"Company Shareholder Meeting") to be duly called and held as
soon as reasonably practicable for the purpose of voting on
the approval and adoption of this Agreement and the Merger.
The directors of the Company, acting in part on the
unanimous recommendation of the Special Committee, shall,
subject to their fiduciary duties after consultation with
counsel, recommend approval and adoption of this Agreement
and the Merger by the Company's shareholders. In connection
with such meeting, but subject to the terms hereof, the
Company (i) will promptly prepare and file with the SEC,
will use its best efforts to have cleared by the SEC and
will thereafter mail to its shareholders as promptly as
practicable the Company Proxy Statement and all other proxy
materials for such meeting, and will prepare and file the
Schedule 13E-3 Transaction Statement required pursuant to
Section 13(e) of the Exchange Act (the "Schedule 13E-3"),
(ii) will use its best efforts to obtain the necessary
approvals by its shareholders of this Agreement and the
transactions contemplated hereby and (iii) will otherwise
comply with all legal requirements applicable to such
meeting.
SECTION 5.3 Access to Information. From the date
hereof until the Effective Time, the Company will give
Buyer, its counsel, financial advisors, auditors and other
authorized representatives full access to the offices,
properties, books and records of the Company and the Company
Subsidiaries, will furnish to Buyer, its counsel, financial
advisors, auditors and other authorized representatives such
financial and operating data and other information as such
Persons may reasonably request and will instruct the
Company's employees, counsel, financial advisors and
auditors to cooperate with Buyer in its investigation of the
business of the Company and the Company Subsidiaries;
provided that no investigation pursuant to this Section
shall affect any representation or warranty given by the
Company to Buyer hereunder.
SECTION 5.4 Other Potential Bidders. The Company
shall, directly or indirectly, furnish information and
access, in each case in response to unsolicited requests
therefor, received prior to or after the date of this
Agreement, to the same extent permitted by Section 5.3
hereof, to any Person pursuant to appropriate
confidentiality agreements, and may participate in
discussions and negotiate with any such Person concerning
any merger, sale of assets, sale of shares of capital stock
or similar transaction involving the Company or any Company
Subsidiary or division of the Company (any such transaction
being referred to herein as a "Competing Transaction"), if
the Special Committee determines that such action is
necessary in light of its fiduciary obligations to the
Company's shareholders after consultation with counsel. In
addition, the Company shall direct its officers and other
appropriate personnel to cooperate with and be reasonably
available to consult with any such Person. Except as set
forth above, the Company shall not solicit, participate in
or initiate discussions or negotiations with, or provide any
information to, any Person (other than Buyer) concerning any
merger, sale of assets, sale of shares of capital stock or
similar transaction involving the Company or any Company
Subsidiary or division of the Company.
SECTION 5.5 Notices of Certain Events. The Company
shall promptly notify Buyer of:
(i) any notice or other communication from any Person
alleging that the consent of such Person is or may be
required in connection with the transactions contemplated by
this Agreement; and
(ii) any notice or other communication from any
Governmental Authority in connection with the transactions
contemplated by this Agreement.
ARTICLE VI
COVENANTS OF BUYER
Buyer agrees that:
SECTION 6.1 Voting of Shares. In any vote of the
Company's shareholders with respect to this Agreement and
the transactions contemplated hereby, Agri shall, and Gold
Kist shall cause Agri to, vote or cause to be voted all of
the Shares then outstanding and beneficially owned by Agri
in favor of the approval and adoption of this Agreement and
the transactions contemplated hereby.
SECTION 6.2 Director and Officer Liability. For six
years from and after the Effective Time, Buyer will or will
cause the Surviving Corporation to indemnify and hold
harmless the present and former officers and directors of
the Company and the Company Subsidiaries in respect of acts
or omissions occurring at or prior to the Effective Time to
the extent provided under the Company's articles of
incorporation and bylaws in effect on the date hereof;
provided that such indemnification shall be available to the
extent permitted by applicable Law. For such six years
after the Effective Time, Buyer will or will cause the
Surviving Corporation to provide officers' and directors'
liability insurance in respect of acts or omissions
occurring at or prior to the Effective Time covering each
such Person currently covered by the Company's officers' and
directors' liability insurance policy on terms with respect
to coverage and amount no less favorable than those of such
policy in effect on the date hereof, provided that if such
coverage is not obtainable at a cost less than or equal to
three times the amount per annum the Company paid in its
last full fiscal year, Buyer shall or shall cause the
Surviving Corporation to purchase such lesser amount of
coverage, on terms as similar in coverage as practicable to
such coverage in effect on the date hereof, as may be
obtained having a per annum cost not to exceed three times
the amount per annum the Company paid in its last full
fiscal year, which amount has been disclosed to Buyer.
SECTION 6.3 Notices of Certain Events. Buyer shall
promptly notify the Company of:
(i) any notice or other communication from any Person
alleging that the consent of such Person is or may be
required in connection with the transactions contemplated by
this Agreement; and
(ii) any notice or other communication from any
Governmental Authority in connection with the transactions
contemplated by this Agreement.
SECTION 6.4 Split Dollar Life Insurance. The parties
acknowledge that, pursuant to the Split Dollar Plan, each of
the following directors of the Company has entered into a
Split Dollar Life Insurance Agreement with Gold Kist (each a
"Split Dollar Agreement"), and it is possible that such
director may not, in the discretion of Gold Kist and such
director, continue as a director of the Company after the
Effective Time:
H.R. Holding
J.H. Levergood
J.W. McIntyre
W.W. Gaston
D.W. Sands
Gold Kist agrees that, at or before the Effective Time, it
shall execute and deliver to each director listed
immediately above an amendment to such director's Split
Dollar Agreement providing that, consistent with Gold Kist's
discretion referenced in Section 6(a)(3) of each Split
Dollar Agreement, Gold Kist will continue such Split Dollar
Agreement for the time period specified in Item 4, Schedule
A of such Split Dollar Agreement, regardless of whether such
director continues to be a director of the Company or any
other Affiliate of Gold Kist for such time period.
ARTICLE VII
COVENANTS OF BUYER AND THE COMPANY
The parties hereto agree that:
SECTION 7.1 Best Efforts. Subject to the terms and
conditions of this Agreement, each party will use its best
efforts to take, or cause to be taken, all actions and to
do, or cause to be done all things necessary, proper or
advisable under applicable Laws to consummate the
transactions contemplated by this Agreement.
SECTION 7.2 Certain Filings. The Company and Buyer
shall cooperate with one another (a) in connection with the
preparation of the Company Disclosure Documents, (b) in
determining whether any action by or in respect of, or
filing with, any Governmental Authority is required, or any
actions, consents, approvals or waivers are required to be
obtained from parties to any material contracts, in
connection with the consummation of the transactions
contemplated by this Agreement, and (c) in seeking any such
actions, consents, approvals or waivers or making any such
filings, furnishing information required in connection
therewith or with the Company Disclosure Documents and
seeking timely to obtain any such actions, consents,
approvals or waivers.
SECTION 7.3 Public Announcements. Buyer and the
Company will consult with each other before issuing any
press release or making any public statement with respect to
this Agreement and the transactions contemplated hereby and,
except as may be required by applicable Law or any listing
agreement with any national securities exchange, will not
issue any such press release or make any such public
statement prior to such consultation.
SECTION 7.4 Further Assurances. At and after the
Effective Time, the officers and directors of the Surviving
Corporation will be authorized to execute and deliver, in
the name and on behalf of the Company or Merger Subsidiary,
any deeds, bills of sale, assignments or assurances and to
take and do, in the name and on behalf of the Company or
Merger Subsidiary, any other actions and things they may
deem desirable to vest, perfect or confirm of record or
otherwise in the Surviving Corporation any and all right,
title and interest in, to and under any of the rights,
properties or assets of the Company acquired or to be
acquired by the Surviving Corporation as a result of, or in
connection with, the Merger.
ARTICLE VIII
CONDITIONS TO THE MERGER
SECTION 8.1 Conditions to the Obligations of Each
Party. The obligations of the Company, Buyer and Merger
Subsidiary to consummate the Merger are subject to the
satisfaction at or prior to the Effective Time of the
following conditions, any or all of which may be waived, in
whole or in part, by each of the parties intended to benefit
therefrom, to the extent permitted by applicable Law:
(a) this Agreement and the Merger shall have been
approved and adopted by the Board of Directors of Gold Kist;
(b) this Agreement and the Merger shall have been
approved and adopted by a majority of all shares of the
Company Common Stock entitled to vote thereon, in accordance
with Section 14-2-1103 of the GBCC, and by a majority of the
shares of the Company Common Stock entitled to vote thereon
held by the Public Shareholders, in accordance with the
conflicting interest "safe harbor" provided by Section 14-2-
863 of the GBCC;
(c) no Governmental Authority shall have enacted,
issued, promulgated, enforced or entered any Law or Order
(whether temporary, preliminary or permanent) which is in
effect and which has the effect of making the Merger illegal
or otherwise prohibiting consummation of the Merger;
(d) all actions by or in respect of or filings with
any Governmental Authority required to permit the
consummation of the Merger shall have been obtained, other
than the filing of the requisite articles or certificate of
merger with the Secretary of State of Georgia; and
(e) at the time of mailing of the Company Proxy
Statement, at the time of the Company Shareholder Meeting
and at the Effective Time, R-H shall have reaffirmed in
writing the fairness opinion previously prepared and
delivered by it to the Special Committee and R-H shall not
have withdrawn such opinion; and
(f) there shall be no action, suit, investigation or
proceeding pending against, or to the knowledge of the
Company or Buyer, threatened against or affecting, the
Company, Buyer or any of their respective officers or
directors, which in any manner challenges or seeks to
prevent, enjoin, alter or materially delay the Merger or any
of the other transactions contemplated hereby.
SECTION 8.2 Additional Conditions to the Obligations
of Buyer and Merger Subsidiary. The obligations of Buyer
and Merger Subsidiary to consummate the Merger are also
subject to the satisfaction at or prior to the Effective
Time of the following further conditions, any or all of
which may be waived, in whole or in part, by each of the
parties intended to benefit therefrom, to the extent
permitted by applicable Law:
(a) the Company shall have performed in all material
respects all of its obligations hereunder required to be
performed by it at or prior to the Effective Time, the
representations and warranties of the Company contained in
this Agreement and in any certificate delivered by the
Company pursuant hereto shall be true and correct in all
respects, except where the breach or inaccuracy thereof
would not, individually or in the aggregate, have a Material
Adverse Effect, at and as of the Effective Time as if made
at and as of such time, except that those representations
and warranties which address matters only as of a particular
date shall remain true and correct as of such date, and
Buyer shall have received a certificate signed by the
principal financial officer of the Company to the foregoing
effect;
(b) no Material Adverse Effect shall have occurred;
(c) Buyer shall have received or be satisfied that it
will receive all consents and approvals contemplated by
Section 3.3 and any other consents of third parties
necessary in connection with the consummation of the Merger
if the failure to obtain any such consent would have a
Material Adverse Effect;
(d) Buyer shall have received all documents it may
reasonably request relating to the existence of the Company
and the authority of the Company to enter into this
Agreement, all in form and substance reasonably satisfactory
to Buyer; and
(e) at the time of mailing of the Company Proxy
Statement, at the time of the Company Shareholder Meeting
and at the Effective Time, SunTrust Capital Markets, Inc.,
financial adviser to Buyer, shall have reaffirmed in writing
the fairness opinion previously prepared and delivered by it
to the Board of Directors of Buyer and SunTrust Capital
Markets, Inc. shall not have withdrawn such opinion.
SECTION 8.3 Additional Conditions to the Obligations
of the Company. The obligations of the Company to
consummate the Merger are also subject to the satisfaction
at or prior to the Effective Time of the following further
conditions, any or all of which may be waived, in whole or
in part, by the Company to the extent permitted by
applicable Law:
(a) Buyer and Merger Subsidiary shall have performed
in all material respects all of their respective obligations
hereunder required to be performed by them at or prior to
the Effective Time, the representations and warranties of
Buyer contained in this Agreement and in any certificate
delivered by Buyer or Merger Subsidiary pursuant hereto
shall be true and correct in all material respects at and as
of the Effective Time as if made at and as of such time,
except that those representations and warranties which
address matters only as of a particular date shall remain
true and correct as of such date, and the Company shall have
received a certificate signed by the President or any Vice
President of each of Buyer and Merger Subsidiary to the
foregoing effect;
(b) the Company shall have received all documents it
may reasonably request relating to the existence of Buyer or
Merger Subsidiary and the authority of Buyer or Merger
Subsidiary to enter into this Agreement, all in form and
substance reasonably satisfactory to the Company; and
(c) this Agreement and the Merger shall have been
approved and adopted by the Board of Directors of each of
Agri and Merger Subsidiary.
ARTICLE IX
TERMINATION
SECTION 9.1 Termination. This Agreement may be
terminated and the Merger may be abandoned at any time prior
to the Effective Time (notwithstanding any approval of this
Agreement by the shareholders of the Company):
(a) by mutual written consent of the Company and
Buyer;
(b) by either the Company or Buyer, if the Merger has
not been consummated by September 30, 1997;
(c) by either the Company or Buyer, if there shall be
any Law that makes consummation of the Merger illegal or
otherwise prohibited or if any Order enjoining Buyer or the
Company from consummating the Merger is entered and such
Order shall become final and nonappealable;
(d) by either the Company or Buyer if this Agreement
and the Merger shall fail to be approved and adopted by the
shareholders of the Company at the Company Shareholder
Meeting called for such purpose, as set forth in Section
8.1(b) above;
(e) by Buyer or the Company (such determination to be
made on behalf of the Company by the Special Committee in
its sole discretion), if, consistent with the terms of this
Agreement, the Board of Directors of the Company or the
Special Committee withdraws, modifies or changes its
recommendation of this Agreement or the Merger in a manner
adverse to Buyer or Merger Subsidiary or shall have resolved
to do any of the foregoing or the Board of Directors of the
Company or the Special Committee shall have recommended to
the shareholders of the Company any Competing Transaction or
resolved to do so.
SECTION 9.2 Effect of Termination. If this Agreement
is terminated pursuant to Section 9.1, this Agreement shall
become void and of no effect with no liability on the part
of any party hereto, except that the agreements contained in
Section 10.5 shall survive the termination hereof; provided,
however, that, except as specifically provided herein,
nothing herein shall relieve any party hereto of liability
for any breach of this Agreement.
ARTICLE X
MISCELLANEOUS
SECTION 10.1 Definitions. As used herein, the
following terms have the following respective meanings (such
meanings to be equally applicable to both the singular and
plural forms of the terms defined):
"Affiliate" means, with respect to a Person, any
other Person that, directly or indirectly through one or
more intermediaries, controls, or is controlled by, or is
under common control with, such given Person.
"Agreement" means this Agreement and Plan of
Merger, as the same may be supplemented, modified or amended
from time to time.
"Company Subsidiaries" means GP Finance
Corporation, a Delaware corporation, and Carolina Golden
Products Company, a Georgia general partnership.
"Expenses" means all reasonable out-of-pocket
expenses (including, without limitation, all fees and
expenses of counsel, accountants, investment bankers,
experts and consultants (which shall not include fees and
expenses of officers or directors of Buyer and/or Affiliates
thereof) and commitment fees and other financing fees and
expenses) incurred by Buyer, Merger Subsidiary or the
Company or on behalf of any such party in connection with or
related to the authorization, preparation, negotiation,
execution and performance of this Agreement, the
preparation, printing, filing and mailing of the Company
Proxy Statement and Schedule 13E-3, the solicitation of the
shareholder approvals and all other matters related to the
consummation of the transactions contemplated hereby.
"GAAP" means United States generally accepted
accounting principles consistently applied.
"Governmental Authority" means any federal, state,
county, local, foreign or other governmental or public
agency, instrumentality, commission, authority, board or
body, and any court, arbitrator, mediator or tribunal.
"Law" means any code, law, ordinance, regulation,
rule or statute of any Governmental Authority.
"Lien" means any security interest, lien,
mortgage, deed to secure debt, deed of trust, pledge,
charge, conditional sale or other title retention agreement,
or other encumbrance of any kind.
"Material Adverse Effect" means any matter that
would reasonably be expected to affect materially and
adversely the business, condition (financial or otherwise)
or results of operations of the Company and the Company
Subsidiaries considered as a whole.
"Order" shall mean any administrative decision or
award, decree, injunction, judgment, order, quasi-judicial
decision or award, ruling, or writ of any federal, state,
local or foreign or other court, arbitrator, mediator,
tribunal, administrative agency or other Governmental
Authority.
"Person" means an individual, a corporation, a
partnership, an association, a trust, a limited liability
company or any other entity or organization, including a
government or political subdivision or any agency or
instrumentality thereof.
"Split Dollar Plan" means the Gold Kist Inc. Split
Dollar Life Insurance Plan effective March 1, 1995, which
permits Gold Kist, and the Company as a permitted affiliate
of Gold Kist, to assist certain directors and officers of
Gold Kist and its affiliates in providing death benefits for
their beneficiaries.
"Surviving Corporation" means the Company as the
surviving corporation resulting from the Merger.
The following terms are defined in the following
Sections of this Agreement:
Term Section
"Agri" Opening Paragraph
"Buyer" Opening Paragraph
"Company" Opening Paragraph
"Company Common Stock" Recital A
"Company Disclosure Documents"3.9(a)
"Company Proxy Statement" 3.9(a)
"Company Securities" 3.5
"Company Shareholder Meeting" 5.2
"Company 10-K" 3.7(a)
"Company 10-Qs" 3.8
"Competing Transaction" 5.4
"Exchange Act" 3.3
"Exchange Agent" 1.4(a)
"Effective Time" 1.2(b)
"GBCC" Recital E
"GCMA" Recital E
"Gold Kist" Opening Paragraph
"Incentive Plan" 1.6
"Merger" Recital E
"Merger Consideration" 1.3(a)
"Merger Subsidiary" Opening Paragraph
"Preferred Stock" Recital A
"Public Shareholders" Recital C
"R-H" 3.11
"Schedule 13E-3" 5.2
"SEC" 3.7(a)
"Share" 1.3(a)
"Special Committee" Recital C
"Split Dollar Agreement" 6.4
"Subsidiary Securities" 3.6
SECTION 10.2 Notices. Unless otherwise specifically
provided herein, any notice, demand, request or other
communication herein requested or permitted to be given
shall be in writing and may be personally served, sent by
overnight courier service, or sent by telecopy with a
confirming copy sent by United States first-class mail, each
with any postage or delivery charge prepaid. For the
purposes hereof, the addresses of the parties hereto (until
notice of a change thereof is delivered as provided in this
Section) shall be as follows:
If to the Company: Golden Poultry Company, Inc.
c/o John W. McIntyre
Suite 100
7 Piedmont Center
Atlanta, Georgia 30305
Telephone: 404-816-5206
Telecopy: 404-816-3537
With a copy (which shall Sutherland, Asbill & Brennan, L.L.P.
not constitute notice) to: 999 Peachtree Street, N.E.
Atlanta, Georgia 30309
Attn: Thomas C. Herman
Telephone: 404-853-8000
Telecopy: 404-853-8806
If to Buyer or Merger: Gold Kist Inc.
Subsidiary: 244 Perimeter Center Parkway, N.E.
Atlanta, Georgia 30346
Attn: Jack L. Lawing
Telephone: 770-393-5314
Telecopy: 770-393-5421
With a copy (which shall Alston & Bird LLP
not constitute notice) to: 1201 West Peachtree Street
Atlanta, Georgia 30309
Attn: B. Harvey Hill, Jr.
Telephone: 404-881-7446
Telecopy: 404-881-7777
Any notice provided hereunder shall be deemed to have
been given on the date delivered in person, or on the next
business day after deposit with an overnight courier
service, or on the date received by telecopy transmissions.
SECTION 10.3 No Survival of Representations and
Warranties. The representations and warranties contained
herein and in any certificate delivered pursuant hereto
shall not survive the Effective Time or the termination of
this Agreement.
SECTION 10.4 Amendments; No Waivers. (a) Any
provision of this Agreement may be amended or waived prior
to the Effective Time if, and only if, such amendment or
waiver is in writing and signed by all parties hereto, or in
the case of a waiver, by the party against whom the waiver
is to be effective; provided that any such amendment and any
such waiver by the Company shall have been approved by the
Board of Directors of the Company, acting on the
recommendation of the Special Committee; and provided,
further, that after the adoption of this Agreement by the
shareholders of the Company, no such amendment or waiver
shall, without the further approval of such shareholders,
alter or change (i) the amount or kind of consideration to
be received in exchange for any shares of capital stock of
the Company or (ii) any of the terms or conditions of this
Agreement if such alteration or change would adversely
affect the holders of any shares of capital stock of the
Company.
(b) No failure or delay by any party in exercising any
right, power or privilege hereunder shall operate as a
waiver thereof nor shall any single or partial exercise
thereof preclude any other or further exercise thereof or
the exercise of any other right, power or privilege. The
rights and remedies herein provided shall be cumulative and
not exclusive of any rights or remedies provided by law.
SECTION 10.5 Fees and Expenses. Except as otherwise
provided in this Section, all Expenses incurred in
connection with this Agreement shall be paid by the party
incurring such Expense, provided that, if the Merger is not
consummated, all printing expenses and filing fees
associated with the preparation and distribution of the
Company Proxy Statement shall be divided equally between
Buyer and the Company.
SECTION 10.6 Successors and Assigns. The provisions
of this Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective
successors and assigns, provided that no party may assign,
delegate or otherwise transfer any of its rights or
obligations under this Agreement without the consent of the
other parties hereto except that Buyer may transfer or
assign, in whole or from time to time in part, to one or
more of its Affiliates, its rights under this Agreement, but
any such transfer or assignment will not relieve Buyer of
its obligations under this Agreement or prejudice the rights
of shareholders to receive the Merger Consideration for
Shares properly surrendered in accordance with Section 1.4.
This Agreement shall not be construed so as to confer any
right or benefit upon any person other than the parties to
this Agreement, and their respective successors and assigns.
SECTION 10.7 Governing Law. Regardless of the place
or places where this Agreement may be executed, delivered or
consummated, this Agreement shall be governed by and
construed in accordance with the Laws of the State of
Georgia, without regard to any applicable conflicts of Laws.
SECTION 10.8 Severability. Any term or provision of
this Agreement which is invalid or unenforceable in any
jurisdiction shall, as to that jurisdiction, be ineffective
to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and
provisions of this Agreement or affecting the validity or
enforceability of any of the terms or provisions of this
Agreement in any other jurisdiction. If any provision of
this Agreement is so broad as to be unenforceable, the
provision shall be interpreted to be only so broad as is
enforceable.
SECTION 10.9 Captions. The captions contained in this
Agreement are for reference purposes only and are not part
of this Agreement.
SECTION 10.10 Interpretations. Neither this Agreement
nor any uncertainty or ambiguity herein shall be construed
or resolved against any party, whether under any rule of
construction or otherwise. No party to this Agreement shall
be considered the draftsman. The parties acknowledge and
agree that this Agreement has been reviewed, negotiated and
accepted by all parties and their attorneys and shall be
construed and interpreted according to the ordinary meaning
of the words used so as fairly to accomplish the purposes
and intentions of all parties hereto.
SECTION 10.11 Counterparts; Effectiveness. This
Agreement may be signed in any number of counterparts, each
of which shall be an original, with the same effect as if
the signatures were upon the same instrument. This
Agreement shall become effective when each party hereto
shall have received counterparts hereof signed by all of the
other parties hereto.
IN WITNESS WHEREOF, each of the parties has caused this
Agreement to be executed on its behalf as of the day and
year first above written.
GOLDEN POULTRY COMPANY, INC.
Attest:
By: /s/ John W. McIntyre
/s/ Jack L. Lawing
Secretary Name: John W. McIntyre
Title: Chairman, Negotiating Committee
of the Board of Directors
GOLD KIST INC.
Attest:
By: /s/ John Bekkers
/s/ Jack L. Lawing
Secretary Name: John Bekkers
Title: President/Chief Operating Officer
AGRI INTERNATIONAL, INC.
Attest:
By: /s/ John Bekkers
/s/ Jack L. Lawing
Secretary Name: John Bekkers
Title: President
GOLDEN POULTRY ACQUISITION
CORP.
Attest:
By: /s/ Kenneth N. Whitmire
/s/ Jack L. Lawing
Secretary Name: Kenneth N. Whitmire
Title: Director
