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REGISTRATION NO. 333-27895
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
AMENDMENT 1
TO
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
RYMER FOODS INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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<S> <C> <C>
DELAWARE 2013 36-1343930
(STATE OR OTHER JURISDICTION (PRIMARY STANDARD INDUSTRIAL (IRS EMPLOYER
OF CLASSIFICATION CODE NUMBER) IDENTIFICATION NO.)
INCORPORATION OR
ORGANIZATION)
</TABLE>
4600 SOUTH PACKERS AVENUE
CHICAGO, ILLINOIS 60609
773-927-7777
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
MR. P. EDWARD SCHENK
RYMER FOODS INC.
4600 SOUTH PACKERS AVENUE
CHICAGO, ILLINOIS 60609
773-927-7777
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
COPIES TO:
JOHN H. HEUBERGER, ESQ.
RUDNICK & WOLFE
203 NORTH LASALLE STREET, SUITE 1800
CHICAGO, ILLINOIS 60601
(312) 368-4000
(312) 236-7516 (TELECOPIER)
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
As soon as practicable after the Registration Statement becomes effective.
If the securities being registered on this form are being offered in
connection with the formation of a holding company and there is compliance with
General Instruction G, check the following box. [ ]
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Delaware law provides a statutory framework for indemnification of
directors and officers against liabilities and expenses arising out of legal
proceedings brought against them by reason of their status or service as
directors or officers. Section 145 of the General Corporation Law of Delaware
("Section 145") provides that a director or officer of a corporation (i) shall
be indemnified by the corporation for expenses in defense of any action or
proceeding if the director or officer is sued by reason of his service to the
corporation, to the extent that such person has been successful in defense of
such action or proceeding, or in defense of any claim, issue or matter raised in
such litigation, (ii) may, in actions other than actions by or in the right of
the corporation (such as derivative actions), be indemnified for expenses,
judgments, fines, amounts paid in settlement of such litigation, and other
amounts, even if he is not successful on the merits, if he acted in good faith
and in a manner he reasonably believed to be in or not opposed to the best
interests of the corporation (and in a criminal proceeding, if he did not have
reasonable cause to believe this conduct was unlawful), and (iii) may be
indemnified by the corporation for expenses (but not judgments or settlements)
of any action by the corporation or of a derivative action (such as a suit by a
stockholder alleging a breach by the director or officer of a duty owed to the
corporation), even if he is not successful, provided that he acted in good faith
and in a manner reasonably believed to be in or not opposed to the best
interests of the corporation, provided that no indemnification is permitted
without court approval if the director was adjusted liable to the corporation.
Under Section 145, the permissive indemnification described in clauses (ii)
and (iii) or the previous paragraph may be made only upon a determination, by
(a) a majority of a quorum of disinterested directors, (b) the stockholders, or
(c) under certain circumstances, by independent legal counsel in a written
opinion, that indemnification is proper in the circumstances because the
applicable standard of conduct has been met. Under Section 145, the Board may
authorize the advancement of litigation expenses to a director or officer upon
receipt of an undertaking by such director or officer to repay such expenses if
it is ultimately determined that such director or officer is not entitled to
indemnification.
ITEM 21. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
(A) EXHIBITS:
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EXHIBIT
NO. DESCRIPTION
- ------- -----------
<C> <S>
2.1 Disclosure Statement in connection with Pre-Petition
Solicitations of Ballots for the Rymer Foods Inc.
Prepackaged Plan of Reorganization under Chapter 11 of the
United States Bankruptcy Code (included as Part III of the
Proxy Statement/Prospectus).
2.2 Rymer Foods Inc.'s Prepackaged Plan of Reorganization under
Chapter 11 of the United States Bankruptcy Code (included in
Part IV of the Proxy Statement/Prospectus).
3.2 Form of charter amendment to reduce the par value of Rymer
common stock from $1.00 per share to $.04. (Item 3, Part II
of the Proxy Statement/Prospectus).
4.8 Form of Indenture between Rymer Foods Inc. and Continental
Stock Transfer and Trust Company, dated as of April 7, 1993,
(as Supplemented) (incorporated by reference to Exhibit 4.8
to Registrant's 10Q as filed on March 17, 1995).
5 Opinion of Counsel regarding validity of common stock, par
value $0.04 per share.
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S-1
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<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION
- ------- -----------
<C> <S>
8 Opinion of counsel of Rudnick & Wolfe regarding tax matters.
10.1 Form of 1997 Stock Option Plan (included as Appendix A to
Part II to the Proxy/Prospectus).
10.2 Form of New Employment Agreement for Mr. P.E. Schenk.
10.3 Form of New Employment Agreement for Mr. Edward Hebert.
21. Subsidiaries of the Registrant (incorporated by reference to
Exhibit 22 to the Annual Report on Form 10K of Rymer Foods
Inc. for the fiscal year ended October 26, 1996).
23. Consent of experts and counsel:
(a) Coopers and Lybrand L.L.P. (filed herewith)
(b) Rudnick & Wolfe (included in the opinion to be filed as
Exhibit 5)
24. Power of Attorney executed by the following directors and
officers of Rymer Foods Inc. authorizing the execution of
the Registration Statement and any amendments thereto (filed
herewith):
P. Edward Schenk
Samuel I. Bailin
Joseph Colonnetta
David E. Jackson
Hannah Strasser
99.1 Form of Letter of Transmittal for Senior Notes
99.2 Form of Proxy for the Common Stock
99.3 Form of Master Ballot for Senior Notes
99.4 Form of Ballot for Senior Notes
99.5 Form of Master Ballot for Common Stock
99.6 Form of Ballot for Common Stock
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(B) FINANCIAL STATEMENT SCHEDULES
Supplemental schedules are omitted because they either are not applicable
or equivalent information has been included in the financial statements or notes
thereto.
ITEM 22. UNDERTAKINGS.
(a) (1) The registrant hereby undertakes to deliver or cause to be
delivered with the prospectus, to each person to whom the prospectus is sent or
given, the latest annual report to security holders that is incorporated by
reference in the prospectus and furnished pursuant to and meeting the
requirements of Rule 14a-3 or Rule 14c-3 under the Securities Exchange Act of
1934; and, where interim financial information required to be presented by
Article 3 of Regulation S-X are not set forth in the prospectus, to deliver, or
cause to be delivered to each person to whom the prospectus is sent or given,
the latest quarterly report that is specifically incorporated by referenced in
the prospectus to provide such interim financial information.
(2) The registrant hereby undertakes as follows: that prior to any
public reoffering of the securities registered hereunder through use of a
prospectus which is a part of this Registration Statement, by any person or
party who is deemed to be an underwriter within the meaning of Rule 145(c), the
registrant undertakes that such reoffering prospectus will contain the
information called for by the applicable registration form with respect to
reofferings by persons who may be deemed underwriters, in addition to the
information called for by the other Items of the applicable form.
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(3) The registrant undertakes that every prospectus (i) that is filed
pursuant to paragraph (2) immediately preceding, or (ii) that purports to meet
the requirements of Section 10(a)(3) of the Securities Act of 1933 and is used
in connection with an offering of securities subject to Rule 415, will be filed
as a part of an amendment to the Registration Statement and will not be used
until such amendment is effective, and that, for purposes of determining any
liability under the Securities Act of 1933, each such post-effective amendment
shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(4) (a) Insofar as indemnification (other than insurance pursuant to
Item 20 above) for liabilities arising under the Securities Act of 1933 may be
permitted to directors, officers and controlling persons of the registrant
pursuant to the foregoing provisions, or otherwise, the registrant has been
advised that in the opinion of the Securities and Exchange Commission, such
indemnification is against public policy as expressed in the act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the registrant of expenses incurred
or paid by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
(b) The registrant hereby undertakes to respond to requests for
information that is incorporated by reference into the Proxy
Statement/Prospectus pursuant to Items 4, 10(b), 11 or 13 of this form within
one business day of receipt of such request, and to send the incorporated
documents by first class mail or other equally prompt means. This includes
information contained in documents filed subsequent to the effective date of the
Registration Statement through the date of responding to the request.
(c) The registrant hereby undertakes to supply by means of a
post-effective amendment all information concerning a transaction, and the
company being acquired involved therein, that was not the subject or an included
in the Registration Statement when it became effective.
(d) The registrant hereby undertakes:
(1) to file, during any period in which offers or sales are
being made, a post-effective amendment to this registration
statement:
(i) to include any prospectus required by section 10(a)(3)
of the Securities Act of 1933;
(ii) to reflect in the prospectus any facts or events
arising after the effective date of the registration statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered would not exceed that
which was registered) and any deviation from the low or high
end of the estimated maximum offering range may be reflected in
the form of prospectus filed with the Commission pursuant to
Rule 424(b) (section 230.424(b) of this chapter) if, in the
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aggregate, the changes in volume and price
represent no more than 20% change in the maximum aggregate
offering price set forth in the "Calculation of Registration
Fee" table in the effective registration statement.
(ii) to include any material information with respect to
the plan of distribution not previously disclosed in the
registration statement or any material change to such
information in the registration statement;
(2) that, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) to remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Chicago, State of
Illinois, on May 23, 1997.
RYMER FOODS INC.
(Registrant)
By:
/s/ P. EDWARD SCHENK
------------------------------------
P. Edward Schenk
Chairman of the Board,
Chief Executive Officer and
President
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated and on the date indicated by Power of Attorney.
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<CAPTION>
SIGNATURES TITLE DATE
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<C> <S> <C>
/s/ P. EDWARD SCHENK Chairman of the Board, Chief May 23, 1997
- ---------------------------------------------------- Executive Officer, President and
P. Edward Schenk Director (Principal Executive
Officer)
/s/ EDWARD M. HEBERT Senior Vice President, Chief May 23, 1997
- ---------------------------------------------------- Financial Officer and Treasurer
Edward M. Hebert (Principal Financial Officer and
Principal Accounting Officer)
/s/ SAMUEL I. BAILIN Director May 23, 1997
- ----------------------------------------------------
Samuel I. Bailin
/s/ JOSEPH COLONNETTA Director May 23, 1997
- ----------------------------------------------------
Joseph Colonnetta
/s/ DAVID E. JACKSON Director May 23, 1997
- ----------------------------------------------------
David E. Jackson
/s/ HANNAH STRASSER Director May 23, 1997
- ----------------------------------------------------
Hannah Strasser
</TABLE>
S-5
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[Rudnick & Wolfe letterhead]
(312) 368-4000
EXHIBIT 8
Rymer Foods Inc.
4600 South Packers Avenue
Chicago, Illinois 60609
Re: PROPOSED RESTRUCTURING OF RYMER FOODS, INC.
Dear Sirs:
We have served as counsel to Rymer Foods Inc. ("Rymer") in connection
with the proposed financial restructuring of Rymer as described in the Form S-4
Registration Statement filed by Rymer with the Securities and Exchange
Commission on May 28, 1997 (the "Registration Statement"). Any capitalized
terms used in this letter and not otherwise specifically defined in this letter
shall have the meaning given such terms in the Registration Statement.
As more completely described in the Registration Statement, the
proposed restructuring of Rymer may be accomplished by either (i) the issuance,
outside of bankruptcy, of 143.02 shares of authorized, $.04 par value per share
common stock of Rymer (the "New Common Stock") to the holders of Rymer's 11%
Senior Notes (the "Senior Notes"), in exchange for each $1,000 of outstanding
principal on the Senior Notes, provided such exchange is accepted by holders of
at least 95% of the outstanding principal amount of the Senior Notes (the
"Exchange Restructuring"); or (ii) the issuance of 143.02 shares of New Common
Stock in exchange for each $1,000 of outstanding principal on the Senior Notes
pursuant to a prepackaged bankruptcy plan (the "Bankruptcy Restructuring").
Pursuant to either the Exchange Restructuring or the Bankruptcy Restructuring,
holders (the "Stockholders") of the currently issued and outstanding common
stock of Rymer (the "Rymer Common Stock") will exchange shares of common stock
for shares of New Common Stock pursuant to a reverse stock split in the ratio
of 25 shares of common stock into one share of New Common Stock. References in
this letter to the "Restructuring," without further modification, refer to
either the Exchange Restructuring or the Bankruptcy Restructuring.
You have requested our opinion as to certain federal income tax
consequences to the noteholders and the stockholders from the Restructuring.
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[RUDNICK & WOLFE LETTERHEAD]
Rymer Foods Inc.
May 30, 1997
Page 2
We have examined, and relied and base our opinion on, originals or
copies, certified or otherwise identified to our satisfaction, of the following
documents and upon such matters of law as we have deemed necessary for the
purposes of this opinion: (i) the Registration Statement, (ii) Rymer's proposed
Prepackaged Plan of Reorganization under Chapter 11 of the United States
Bankruptcy Code and the proposed Disclosure Statement in connection with the
pre-petition solicitation of ballots relating thereto, and the proposed
amendment to Articles of Incorporation changing the par value of the common
stock from $1.00 per share to $0.04 per share. In our examination, we have
assumed the authenticity of original documents, the accuracy of copies and the
genuineness of signatures.
In rendering the opinions set forth in this letter, we have relied, to
the extent we believe appropriate, as to matters of fact, upon the
representations, warranties and covenants of Rymer set forth in the
Registration Statement. We have made no independent investigation or
verification of said facts. No opinion is being expressed as to the effect of
any event, fact or circumstances of which we have no actual knowledge after
reasonable due diligence.
We have assumed for purposes of this opinion that: (a) the
Restructuring and all related transactions will be effected in the manner
described in the Registration Statement; and (b) the Restructuring is being
undertaken for a bona fide business purpose of Rymer (other than the reduction
or avoidance of federal income taxes).
We have further assumed that (i) the Registration Statement and all
documents effecting the exchanges and other transactions pursuant to the
Restructuring (the "Restructuring Documents") have been duly authorized,
executed and delivered by Rymer and each other party thereto, are within their
respective corporate powers (if applicable), are the legal, valid and binding
obligations of each such party, and that each such party is in compliance with
all applicable laws, rules and regulations governing the conduct of their
respective businesses and this transaction, (ii) the Restructuring Documents
will be enforced in circumstances and in a manner which are commercially
reasonable, (iii) Rymer is not subject to any statute, rule or regulation or
any impediment that requires it to obtain the consent of, or to make any
declaration or filing with, any governmental authority (other than the
Registration Statement and any court filings required in connection with the
Bankruptcy Restructuring) in connection with the transactions contemplated by
the Registration Statement, and (iv) all terms, provisions and conditions
relating to the Restructuring are correctly and completely reflected in the
Registration Statement and the Restructuring Documents. Nothing contrary to any
of these assumptions has come to our knowledge in considering the matters
discussed in this letter.
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[RUDNICK & WOLFE LETTERHEAD]
Rymer Foods Inc.
May 30, 1997
Page 3
Whenever our opinion, with respect to the existence or absence of
facts, is qualified by the phrase "to our knowledge" or a phrase of similar
import, it indicates that during the course of our representation of Rymer in
connection with the subject transaction no information has come to the
attention of our attorneys who have worked on the subject transaction which
would give us current actual knowledge of the existence or absence of such
facts. However, except to the extent expressly set forth herein, we have not
undertaken any independent investigation to determine the existence or absence
of such facts, and no inference as to our knowledge of the existence or
absence of such facts should be drawn from the fact of our representation of
Rymer or any other matter.
Based upon the foregoing, and in reliance thereon, but subject to the
assumptions, limitations, and qualifications expressed herein, we are of the
opinion that:
(i) The Restructuring constitutes a recapitalization within the
meaning of Section 368(a)(1)(E) of the Internal Revenue Code of 1986, as
amended.
(ii) Except as described in paragraph (iii) below, the noteholders
will not recognize taxable gain or loss for federal income tax purposes upon
the receipt of New Common Stock in satisfaction of the outstanding principal
balance of the Senior Notes.
(iii) To the extent that a noteholder receives New Common Stock in
payment of accrued and unpaid interest on the Senior Notes, such noteholder
(assuming such noteholder has not previously recognized such accrued interest
as taxable income) will recognize income for federal income tax purposes in the
amount of the fair market value of the New Common stock so issued.
(iv) The basis for federal income tax purposes to each noteholder of
the New Common Stock received in payment of the outstanding principal balance
of the Senior Notes will equal the adjusted basis to such noteholder
attributable to the outstanding principal of such Senior Notes.
(v) The basis for federal income tax purposes to each noteholder of
New Common Stock received in payment of accrued and unpaid interest on the
Senior Notes (assuming such Noteholder did not recognize such interest prior to
the Restructuring), will equal the fair market value of such New Common Stock
on the date of the Restructuring.
(vi) The stockholders will not recognize gain or loss for federal
income tax purposes upon the receipt of New Common Stock in exchange for Common
Stock pursuant to the reverse stock split.
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Rymer Foods, Inc.
May 30, 1997
Page 4
(vii) The basis for federal income tax purposes to each stockholder of
the New Common Stock received pursuant to the reverse stock split will equal
the adjusted basis of the common stock surrendered in exchange for such New
Common Stock.
You should be aware that any actions by Rymer or any other party that
are contrary to any of their respective obligations in the Restructuring
Documents or Rymer's representations, warranties or covenants set forth in this
letter or in the Registration Statement could affect the accuracy of the
opinions expressed herein. Furthermore, any failure by any party to comply with
all of the terms of the Registration Statement and the Restructuring Documents
as in effect on the date of this letter could affect the opinions expressed
herein.
The opinions expressed herein are based upon the description of the
Restructuring set forth in the Registration Statement as in effect on the date
hereof and on the representations and assumptions set forth above concerning
the transactions and related circumstances as of the date hereof. Any material
change in the terms of such transactions or such circumstances should be
reviewed by us and made the subject of a separate opinion as to their effect.
You should also be aware that the opinions in this letter are based
upon the statutes, regulations, judicial decisions and administrative
interpretations as in effect on the date hereof and as they presently apply.
Such items are subject to change, in some cases with retroactive effect. Any
material change after the date hereof in any of the legal grounds for our
opinions could affect the opinions set forth in this letter. No assurance can
be given that such changes will not occur.
We call your attention to the fact that, although we represent Rymer in
connection with the subject transaction, our engagement has been limited to
specific matters as to which we have been consulted.
This opinion is limited to the matters stated herein. We disavow any
obligation to update this opinion or advise you of any changes in our opinion
in the event of changes in applicable laws or facts or if additional or
newly-discovered information is brought to our attention. This opinion is
provided to you as a legal opinion only and not as a guaranty or warranty of
the matters discussed herein or in the documents referred to herein. No opinion
may be inferred or implied beyond the matters expressly stated herein and no
portion of this opinion may be quoted or in any other way published without the
prior written consent of the undersigned.
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[RUDNICK & WOLFE LETTERHEAD]
Rymer Foods Inc.
May 30, 1997
Page 5
This opinion may be relied upon solely in connection with the registration
statement.
Very truly yours,
RUDNICK & WOLFE
Rudnick & Wolfe
NRM2297
