<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(AMENDMENT NO. 17)
FRESH FOODS, INC., formerly known as WSMP, INC.
(Name of the Issuer)
Common Stock
(Title of Class of Securities)
929330 10 8
(CUSIP Number)
Patrick Daugherty
McGuire, Woods, Battle & Boothe LLP
Bank of America Corporate Center, Suite 2900
100 North Tryon Street
Charlotte, NC 28202
(704) 373-8975
(Name, address and Telephone Number of Persons
Authorized to Receive Notice and Communications)
August 12, 1998
(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: [ ]
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 (the "Act") or otherwise subject to the liabilities of that section
of the Act but shall be subject to all other provisions of the Act.
The total number of shares reported herein is 2,091,332 shares, which
constitutes approximately 32.0% of the total number of shares outstanding. All
ownership percentages set forth herein are based upon 5,914,809 shares of Common
Stock issued and outstanding as of January 19, 1999. When calculating the number
of shares reported herein and the number of shares outstanding, 627,000 shares
issuable pursuant to currently exercisable options belonging to five of the
individual Reporting Persons
<PAGE> 2
(defined hereinafter) are accounted for by aggregating the optioned shares with
the shares that are beneficially owned by the Reporting Persons and dividing the
sum by the number of shares outstanding plus the number of currently exercisable
options belonging to the Reporting Persons.
<PAGE> 3
SCHEDULE 13D
CUSIP No. 929330 10 8
1. Name of Reporting Person; S.S. or I.R.S. Identification No. of Above
Person
James Claude Richardson, Jr. ###-##-####
2. Check the Appropriate Box if a Member of a Group
(a) [ x ]
(b) [ ]
3. SEC Use Only
4. Source of Funds
SC, BK, PF
5. Check Box if Disclosure of Legal Proceedings is Required to Items 2(d)
or 2(e) [ ]
6. Citizenship or Place of Organization
United States of America
Number of Shares Beneficially Owned By Each Reporting Person With
7. Sole Voting Power
222,657 (1)
8. Shared Voting Power
1,274,034 (2)
9. Sole Dispositive Power
222,657 (1)
10. Shared Dispositive Power
1,274,034 (2)
11. Aggregate Amount Beneficially Owned by Each Reporting Person
1,496,691
12. Check Box if the Aggregate Amount in Row 11 Excludes Certain Shares [ ]
13. Percent of Class Represented by Amount in Row 11
24.4% (3)
14. Type of Reporting Person
IN
<PAGE> 4
SCHEDULE 13D
CUSIP No. 929330 10 8
1. Name of Reporting Person; S.S. or I.R.S. Identification No. of Above
Person
David R. Clark ###-##-####
2. Check the Appropriate Box if a Member of a Group
(a) [ x ]
(b) [ ]
3. SEC Use Only
4. Source of Funds
SC, BK, PF
5. Check Box if Disclosure of Legal Proceedings is Required to Items 2(d)
or 2(e) [ ]
6. Citizenship or Place of Organization
United States of America
Number of Shares Beneficially Owned By Each Reporting Person With
7. Sole Voting Power
286,964 (4)
8. Shared Voting Power
1,274,034 (2)
9. Sole Dispositive Power
286,964 (4)
10. Shared Dispositive Power
1,274,034 (2)
11. Aggregate Amount Beneficially Owned by Each Reporting Person
1,560,998
12. Check Box if the Aggregate Amount in Row 11 Excludes Certain Shares [ ]
13. Percent of Class Represented by Amount in Row 11
25.2% (3)
14. Type of Reporting Person
IN
<PAGE> 5
SCHEDULE 13D
CUSIP No. 929330 10 8
1. Name of Reporting Person; S.S. or I.R.S. Identification No. of Above
Person
James M. Templeton ###-##-####
2. Check the Appropriate Box if a Member of a Group
(a) [ x ]
(b) [ ]
3. SEC Use Only
4. Source of Funds
SC, BK, PF
5. Check Box if Disclosure of Legal Proceedings is Required to Items 2(d)
or 2(e) [ ]
6. Citizenship or Place of Organization
United States of America
Number of Shares Beneficially Owned By Each Reporting Person With
7. Sole Voting Power
78,802 (5)
8. Shared Voting Power
1,257,235 (6)
9. Sole Dispositive Power
78,802 (5)
10. Shared Dispositive Power
1,257,235 (6)
11. Aggregate Amount Beneficially Owned by Each Reporting Person
1,336,037
12. Check Box if the Aggregate Amount in Row 11 Excludes Certain Shares [ ]
13. Percent of Class Represented by Amount in Row 11
22.3% (3)
14. Type of Reporting Person
IN
<PAGE> 6
SCHEDULE D
CUSIP No. 929330 10 8
1. Name of Reporting Person; S.S. or I.R.S. Identification No. of Above
Person
Gregory Albion Edgell ###-##-####
2. Check the Appropriate Box if a Member of a Group
(a) [ x ]
(b) [ ]
3. SEC Use Only
4. Source of Funds
SC, BK, PF
5. Check Box if Disclosure of Legal Proceedings is Required to Items 2(d)
or 2(e) [ ]
6. Citizenship or Place of Organization
United States of America
Number of Shares Beneficially Owned By Each Reporting Person With
7. Sole Voting Power
171,875 (7)
8. Shared Voting Power
1,227,235 (8)
9. Sole Dispositive Power
171,875 (7)
10. Shared Dispositive Power
1,227,235 (8)
11. Aggregate Amount Beneficially Owned by Each Reporting Person
1,399,110
12. Check Box if the Aggregate Amount in Row 11 Excludes Certain Shares [ ]
13. Percent of Class Represented by Amount in Row 11
23.5% (3)
14. Type of Reporting Person
IN
<PAGE> 7
SCHEDULE 13D
CUSIP No. 929330 10 8
1. Name of Reporting Person; S.S. or I.R.S. Identification No. of Above
Person
HERTH Management, Inc. 56-1645597
2. Check the Appropriate Box if a Member of a Group
(a) [ x ]
(b) [ ]
3. SEC Use Only
4. Source of Funds
SC, BK, PF
5. Check Box if Disclosure of Legal Proceedings is Required to Items 2(d)
or 2(e) [ ]
6. Citizenship or Place of Organization
United States of America
Number of Shares Beneficially Owned By Each Reporting Person With
7. Sole Voting Power (9)
1,227,235 (10)
8. Shared Voting Power
0
9. Sole Dispositive Power (9)
1,227,235 (10)
10. Shared Dispositive Power
0
11. Aggregate Amount Beneficially Owned by Each Reporting Person
1,227,235
12. Check Box if the Aggregate Amount in Row 11 Excludes Certain Shares [ ]
13. Percent of Class Represented by Amount in Row 11
20.7% (3)
14. Type of Reporting Person
C
<PAGE> 8
SCHEDULE 13D
CUSIP No. 929330 10 8
1. Name of Reporting Person; S.S. or I.R.S. Identification No. of Above
Person
Columbia Hill, LLC 56-2016827
2. Check the Appropriate Box if a Member of a Group
(a) [ x ]
(b) [ ]
3. SEC Use Only
4. Source of Funds
SC, BK, PF
5. Check Box if Disclosure of Legal Proceedings is Required to Items 2(d)
or 2(e) [ ]
6. Citizenship or Place of Organization
United States of America
Number of Shares Beneficially Owned By Each Reporting Person With
7. Sole Voting Power (11)
46,799 (12)
8. Shared Voting Power
1,227,235 (8)
9. Sole Dispositive Power (11)
46,799 (12)
10. Shared Dispositive Power
1,227,235 (8)
11. Aggregate Amount Beneficially Owned by Each Reporting Person
1,274,034
12. Check Box if the Aggregate Amount in Row 11 Excludes Certain Shares [ ]
13. Percent of Class Represented by Amount in Row 11
21.5% (3)
14. Type of Reporting Person
C
<PAGE> 9
SCHEDULE 13D
CUSIP No. 929330 10 8
1. Name of Reporting Person; S.S. or I.R.S. Identification No. of Above
Person
Larry D. Hefner ###-##-####
2. Check the Appropriate Box if a Member of a Group
(a) [ x ]
(b) [ ]
3. SEC Use Only
4. Source of Funds
SC, BK, PF
5. Check Box if Disclosure of Legal Proceedings is Required to Items 2(d)
or 2(e) [ ]
6. Citizenship or Place of Organization
United States of America
Number of Shares Beneficially Owned By Each Reporting Person With
7. Sole Voting Power
27,000 (13)
8. Shared Voting Power
1,274,034 (2)
9. Sole Dispositive Power
27,000 (13)
10. Shared Dispositive Power
1,274,034 (2)
11. Aggregate Amount Beneficially Owned by Each Reporting Person
1,301,034
12. Check Box if the Aggregate Amount in Row 11 Excludes Certain Shares [ ]
13. Percent of Class Represented by Amount in Row 11
21.9% (3)
14. Type of Reporting Person
IN
<PAGE> 10
(1) Consists of (i) 7,657 shares owned of record and (ii) 215,000
shares subject to currently exercisable call options.
(2) Consists of (i) 1,227,235 shares owned beneficially through
HERTH Management, Inc. and (ii) 46,799 shares owned
beneficially through Columbia Hill, LLC.
(3) Calculated by taking the aggregate amount beneficially owned
by the individual reporting person and dividing by the number
of shares outstanding (5,914,809) plus the number of presently
exercisable call options belonging to the individual reporting
person.
(4) Consists of (i) 1,964 shares owned of record and (ii) 285,000
shares subject to currently exercisable call options.
(5) Consists of (i) 8,802 shares owned of record and (ii) 70,000
shares subject to currently exercisable call options.
(6) Consists of 1,227,235 shares owned beneficially through HERTH
Management, Inc. and 30,000 shares owned beneficially through
Catawba Valley Real Estate, Inc.
(7) Consists of (i) 131,250 shares owned of record, (ii) 625
shares owned by spouse as custodian for minor children and
(iii) 40,000 shares subject to currently exercisable call
options.
(8) Consists of 1,227,235 shares beneficially owned through HERTH
Management, Inc.
(9) Power is exercised by a majority vote of the shareholders of
HERTH Management, Inc. and does not include other shares
beneficially owned by the shareholders of HERTH Management,
Inc.
(10) Consists of 1,227,235 shares owned of record.
(11) Power is exercised by a majority vote of the members of
Columbia Hill, LLC and does not include other shares
beneficially owned by the members of Columbia Hill, LLC.
(12) Consists of 46,799 shares owned of record.
(13) Consists of (i) 10,000 shares owned of record and (ii) 17,000
shares subject to currently exercisable call options.
<PAGE> 11
ITEM 1. SECURITY AND ISSUER
Pursuant to Rule 13d-2(a) under the Securities Exchange Act of 1934, as
amended (the "Act"), the undersigned hereby amend their Schedule 13D dated
October 21, 1997, relating to the common stock, $1.00 par value per share (the
"Common Stock"), of Fresh Foods, Inc., which changed its name on May 8, 1998,
was formerly known as WSMP, Inc. (the "Company"), and whose principal executive
offices are located at 3437 East Main Street (P.O. Box 399), Claremont, North
Carolina 28610.
ITEM 2. IDENTITY AND BACKGROUND
(a) This statement is filed by (i) HERTH Management, Inc., a North Carolina
corporation ("HERTH"), with respect to shares of Common Stock beneficially owned
by it, (ii) Columbia Hill, LLC, a North Carolina limited liability company
("Columbia"), with respect to shares of Common Stock beneficially owned by
Columbia and HERTH, and (iii) Messrs. David R. Clark, Gregory A. Edgell, Larry
D. Hefner, James C. Richardson, Jr. and James M. Templeton with respect to the
shares of Common Stock beneficially owned by such individuals, HERTH and
Columbia. The foregoing persons are hereinafter sometimes referred to
collectively as the "Reporting Persons."
Messrs. Clark, Richardson and Hefner are the sole members of Columbia.
Columbia and Messrs. Richardson, Edgell and Templeton are the sole shareholders
of HERTH.
(b) The business address of Columbia, HERTH and each of Messrs. Clark, Hefner,
Richardson and Templeton is 3437 East Main Street, P.O. Box 399, Claremont, NC
28610. The business address of Mr. Edgell is 3200 Devine Street, Suite 103,
Columbia, SC 29205. The business address of Mr. Hefner is 1004 Power Street,
China Grove, NC 28023.
(c) Each Reporting Person's present principal occupation or employment, and the
name, principal business and address of any corporation or other organization in
which such employment is conducted, is as follows:
<TABLE>
<CAPTION>
Present Principal Occupation or
Name Principal Business Address business
- ---------------------------------- ------------------------------------- ---------------------------------
<S> <C> <C>
David R. Clark Fresh Foods, Inc. President, Chief Operating
3437 East Main Street Officer and Director of the
P.O. Box 399 Company
Claremont, NC 28610
Columbia Hill, LLC, a North 3437 East Main Street Private investment firm
Carolina limited liability P.O. Box 399 engaging in the purchase and
company Claremont, NC 28610 sale of securities
</TABLE>
<PAGE> 12
<TABLE>
<CAPTION>
Present Principal Occupation or
Name Principal Business Address business
- ---------------------------------- ------------------------------------- ---------------------------------
<S> <C> <C>
Gregory A. Edgell Accounting Resources, Inc. Financial consulting
3200 Devine Street, Suite 103
Columbia, SC 29205
Larry D. Hefner Program Sales & Marketing, LLC Co-owner of Program Sales &
1004 Power Street Marketing, LLC, a food
China Grove, NC 28023 product brokerage
HERTH Management, Inc., a North 3437 East Main Street Provision of business
Carolina corporation P.O. Box 399 management and consulting
Claremont, NC 28610 services and private
investment firm engaging in
the purchase and sale of
securities
James C. Richardson, Jr. Fresh Foods, Inc. Chief Executive Officer and
3437 East Main Street Vice Chairman of the Board of
P.O. Box 399 Directors of the Company
Claremont, NC 28610
James M. Templeton Fresh Foods, Inc. Senior Vice President - Real
3437 East Main Street Estate of the Company
P.O. Box 399
Claremont, NC 28610
</TABLE>
(d) During the past five years, none of the persons referred to in paragraph (a)
above has been convicted in a criminal proceeding (excluding traffic violations
or similar misdemeanors).
(e) During the last five years, none of the persons referred to in paragraph (a)
above has been a party to a civil proceeding of a judicial or administrative
body of competent jurisdiction and as a result of such proceeding was or is
subject to a judgment, decree or final order enjoining future violations of, or
prohibiting or mandating activities subject to, federal or state securities laws
or finding any violation with respect to such laws.
(f) Messrs. Clark, Edgell, Hefner, Richardson and Templeton are United States
citizens.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION
Item 3 is partially amended to update Amendment 15:
Over the course of eleven years, the Reporting Persons have used
various sources of funds for the acquisition of Common Stock including personal
funds of the Reporting Persons, loans from the Reporting Persons and affiliated
corporations of the Reporting Persons, and loans from banks to some or all of
the Reporting Persons.
Presently the Reporting Persons have outstanding approximately $12.5
million in loans to acquire or refinance the acquisition of the Common Stock
and for which portions of the Common Stock are pledged as security.
These loans are between some or all of the Reporting Persons, their
affiliated corporations and several regional banks, including First Century
Bank of Wytheville, Virginia, Carolina First Bank of Greenville, South
Carolina, First Union National Bank of Hickory, North Carolina, Bank of Granite
of Hickory, North Carolina and Peoples Bank of Newton, North Carolina.
Maturities range from three to five years, and interest rates range from LIBOR
plus 2.75% to prime plus 1.00%.
<PAGE> 13
Item 3 is further amended to add the following:
Prior to December 31, 1997, RSH Management, Inc. ("RSH") held of record
918,312 shares of Common Stock. HERTH owned 98.2% of the outstanding shares of
RSH and HERTH's shareholders owned the remaining 1.8% of the outstanding shares
of RSH directly. On December 31, 1997, RSH merged into HERTH through a
short-form merger motivated by tax considerations. Pursuant to the merger, each
outstanding share of RSH was converted into and exchanged for one share in
HERTH.
On August 12, 1998, Capital Factors, Inc., a South Carolina corporation
("Capital"), distributed to Mr. Edgell 125,000 shares of Common Stock at $21.00
per share in exchange for the cancellation of $2,625,000.00 of indebtedness. On
August 12, 1998, Capital was owned 50% by Mr. Edgell and 50% by Mr. Richardson.
ITEM 4. PURPOSE OF THE TRANSACTION
The Reporting Persons acquired the shares of Common Stock for
investment purposes, and the Reporting Persons intend to evaluate the
performance of such securities as an investment in the ordinary course of
business. The Reporting Persons pursue an investment objective that seeks
capital appreciation. In pursuing this investment objective, the Reporting
Persons analyze the operations, capital structure and markets of companies in
which they invest, including the Company, on a continuous basis through analysis
of documentation and discussions with knowledgeable industry and market
observers and with representatives of such companies (often at the invitation of
management).
Each Reporting Person will continuously assess the Company's business
financial condition, results of operations and prospects, general economic
conditions, the securities market in general and those for the Company's
securities in particular, other developments and other investment opportunities.
Depending on such assessments, one or more of the Reporting Persons may acquire
additional shares of Common Stock or may determine to sell or otherwise dispose
of all or some if its holdings of shares of Common Stock. Such actions will
depend upon a variety of factors, including, without limitation, current and
anticipated future trading prices for such Common Stock, the financial
condition, results of operations and prospects of the Company, alternate
investment opportunities, and general economic, financial market and industry
conditions.
The Reporting Persons have no plans or proposals that relate to, or
could result in, any of the matters referred to in paragraphs (a) through (j),
inclusive, of Item 4 of Schedule 13D.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER
(a) As of the close of business on March 1, 1999, the Reporting
Persons, as a group, beneficially owned, as that term is defined in Rule 13d-3
under the Act, 2,091,332 shares of Common Stock, constituting 32.0% of the
outstanding shares. The total number of shares of Common Stock outstanding was
5,914,809 (not including 627,000 shares issuable pursuant to currently
exercisable options belonging to five of the individual
<PAGE> 14
Reporting Persons which are used in the calculation of the percentage of
beneficial ownership) as of January 19, 1999, as reflected in the Company's
quarterly report on Form 10-Q filed with the Securities and Exchange Commission
for the fiscal quarter ended December 5, 1998.
As of the close of business on March 1, 1999, the Reporting Persons
beneficially owned, as that term is defined in Rule 13d-3 under the Act, the
following shares of Common Stock:
<TABLE>
<CAPTION>
Number of Shares Percentage of
Name of Reporting Person Held Outstanding Shares (1)
------------------------ ---- ----------------------
<S> <C> <C>
James C. Richardson, Jr. 1,496,691 24.4%
David R. Clark 1,560,998 25.2
James M. Templeton 1,336,037 22.3
Gregory A. Edgell 1,399,110 23.5
HERTH Management, Inc. 1,227,235 20.7
Columbia Hill, LLC 1,274,034 21.5
Larry D. Hefner 1,301,034 21.9
</TABLE>
(1) Calculated by taking the aggregate amount beneficially owned by the
Reporting Person and dividing by the sum of the number of shares
outstanding (5,914,809) plus the number of presently exercisable call
options belonging to the Reporting Person.
Of the shares beneficially owned by the Reporting Persons, the
following shares of Common Stock are held pursuant to currently exercisable
options under the Company's 1997 Special Stock Option Plan, 1997 Incentive Stock
Option Plan and 1987 Special Stock Option Plan:
<TABLE>
<CAPTION>
Currently Options Not
Name of Reporting Person Exercisable Options Currently Exercisable
------------------------ ------------------- ---------------------
<S> <C> <C>
David R. Clark 285,000 30,000
James C. Richardson, Jr. 215,000 --
James M. Templeton 70,000 20,000
Gregory A. Edgell 40,000 --
Larry D. Hefner 17,000 23,000
</TABLE>
<PAGE> 15
(b) The ownership of each non-individual Reporting Person is as
follows:
<TABLE>
<CAPTION>
Percent
Reporting Person Ownership Shares of Stock
---------------- --------- ---------------
<S> <C> <C>
HERTH 1,227,235
Columbia 45% 552,256
Richardson 22 269,992
Edgell 22 269,992
Templeton 11 134,996
--- ---------
100% 1,227,235
COLUMBIA 46,799
Clark 45% 21,060
Richardson 40 18,720
Hefner 15 7,020
--- ---------
100% 46,799
</TABLE>
The direct and indirect Common Stock ownership of each Reporting
Person, and the power to vote and dispose of the Common Stock, is as follows:
<TABLE>
<CAPTION>
- -------------------- --------------- ---------------------- ---------------------- -----------------
Shares Held Shares Held
Shares Held Indirectly through Indirectly through Total Shares
Name Directly (1) HERTH (4) Columbia (5)
- -------------------- --------------- ---------------------- ---------------------- -----------------
<S> <C> <C> <C> <C>
HERTH 1,227,235 -- -- 1,227,235
- -------------------- --------------- ---------------------- ---------------------- -----------------
Columbia 46,799 552,256 -- 599,055
- -------------------- --------------- ---------------------- ---------------------- -----------------
Richardson 7,657 269,992 239,622
215,000 (2) 732,271
- -------------------- --------------- ---------------------- ---------------------- -----------------
Clark 1,964 -- 269,575
285,000 (2) 556,539
- -------------------- --------------- ---------------------- ---------------------- -----------------
Templeton 8,802 134,996 --
70,000 (2) 243,798 (6)
- -------------------- --------------- ---------------------- ---------------------- -----------------
Hefner 10,000 -- 89,858
17,000 (2) 116,858
- -------------------- --------------- ---------------------- ---------------------- -----------------
Edgell 131,250 269,992 --
625 (3)
40,000 (2) 441,867
- -------------------- --------------- ---------------------- ---------------------- -----------------
Total 2,061,332 1,227,236 599,055
- -------------------- --------------- ---------------------- ---------------------- -----------------
</TABLE>
(1) Each Reporting Person has the sole power to vote and dispose
of the shares, unless otherwise indicated.
(2) Represents shares that the Reporting Person has the option to
acquire pursuant to currently exercisable stock options
granted pursuant to the Company's 1997 Special Stock Option
Plan, 1997 Incentive Stock Option Plan and 1987 Special Stock
Option Plan.
<PAGE> 16
(3) Shares held by spouse as custodian for minor children.
(4) Voting or disposition of HERTH's shares may be done only by
the consent of the holders of a majority of its outstanding
shares. Beneficial ownership of other than a pro-rata interest
in the shares has been disclaimed by each of the shareholders
of HERTH.
(5) Voting or disposition of Columbia's shares may be done only by
the consent of the holders of a majority of its membership
interest. Beneficial ownership of other than a pro-rata
interest in the shares has been disclaimed by each of the
members of Columbia.
(6) Mr. Templeton and his family may be deemed the beneficial
owners of 30,000 shares through their two-thirds ownership of
Catawba Valley Real Eastate, Inc., which owns 30,000 shares of
the Company.
(c) On August 12, 1998, Capital transferred 125,000 shares of Common
Stock at $21.00 per share to Mr. Edgell in exchange for the
cancellation of debt owed to Mr. Edgell by Capital. At that time,
Capital was owned 50% by Mr. Richardson and 50% by Mr. Edgell. Within
the 60 days prior to the August 12, 1998 event, pursuant to which this
statement has been filed, HERTH purchased 500 shares at $14 per share
on August 7, 1998 and Columbia purchased 4,000 shares at $14 1/8 per
share on July 30, 1998 in broker's transactions conducted through Pauli
& Company of St. Louis, Missouri.
Subsequent to Capital's August 12 transaction, HERTH purchased
4,000 shares at $13 5/8 on August 13, 1998 and an additional 3,500
shares at $13 5/8 on August 17, 1998 in broker's transactions conducted
through Pauli & Company.
On December 9, 1998 Mr. Templeton purchased 1,000 shares at $6
per share in a broker's transaction. On December 11, 1998, Catawba
Valley Real Estate, Inc., two-thirds owned by Mr. Templeton and his
immediate family, purchased 20,000 shares at $5.796 per share and an
additional 10,000 shares at $5 1/8 on January 19, 1999 through broker's
transactions with Peoples Bank in Newton, North Carolina acting as
agent.
On February 18, 1999, Mr. Edgell purchased 5,000 shares at $5
per share in a broker's transaction.
(d) No person, other than the Reporting Persons, is known to have the
right to receive or the power to direct the receipt of dividends or
proceeds from the sale of the shares of Common Stock held by the
Reporting Persons.
(e) On December 31, 1997, RSH merged into HERTH and ceased to exist.
Pursuant to Rule 13d-4 of the Exchange Act Rules, the Reporting Persons
expressly declare that the filing of this statement shall not be construed as an
admission that the Reporting Persons are, for the purposes of Section 13(d) of
the Act, the beneficial owner of any securities covered by this statement.
<PAGE> 17
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT
TO SECURITIES OF THE ISSUER
Item 6 is partially amended to add the following:
RSH and HERTH entered into a plan of merger whereby RSH merged into
HERTH on December 31, 1997.
Capital transferred 125,000 shares of Common Stock at $21.00 per share
to Mr. Edgell in exchange for cancellation of debt owed by Capital to Mr.
Edgell.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS
Exhibit 99-1. Articles of Merger of RSH Management, Inc. into
HERTH Management, Inc. dated December 31, 1997.
Exhibit 99-2. Consent of Directors of HERTH Management, Inc. to
Action Without Meeting dated as of December 31, 1997.
<PAGE> 18
SIGNATURE
After reasonable inquiry and to the best of the undersigned's knowledge
and belief, each of the undersigned certifies that the information set forth in
this statement is true, complete and correct.
/s/ JAMES C. RICHARDSON, JR. March 15, 1999
- --------------------------------------
James C. Richardson, Jr.
/s/ DAVID R. CLARK March 15, 1999
- --------------------------------------
David R. Clark
/s/ GREGORY A. EDGELL March 15, 1999
- --------------------------------------
Gregory A. Edgell
/s/ JAMES M. TEMPLETON March 15, 1999
- --------------------------------------
James M. Templeton
/s/ LARRY D. HEFNER March 15, 1999
- --------------------------------------
Larry D. Hefner
COLUMBIA HILL, LLC
By: /s/ DAVID R. CLARK March 15, 1999
----------------------------------
David R. Clark, Member
HERTH MANAGEMENT, INC.
By: /s/ JAMES M. TEMPLETON March 15, 1999
----------------------------------
James M. Templeton, Vice President
<PAGE> 1
ARTICLES OF MERGER
OF
RSH MANAGEMENT, INC.
INTO
HERTH MANAGEMENT, INC.
HERTH MANAGEMENT, INC., a corporation organized under the laws of North
Carolina (the "Surviving Corporation"), hereby submits these Articles of Merger
for the purpose of merging its subsidiary corporation, RSH Management, Inc., a
corporation organized under the laws of North Carolina (the "Merging
Corporation") into the surviving corporation:
I. The following Plan of Merger was duly approved by the board of
directors of the Surviving Corporation in the manner prescribed by law:
* * * * * * * * * * * * * * *
PLAN OF MERGER
A. Corporations Participating in Merger.
RSH Management, Inc. (the "Merging Corporation") will merge into HERTH
Management, Inc., which will be the surviving corporation (the "Surviving
Corporation").
B. Name of Surviving Corporation.
After the merger, the Surviving Corporation will have the name "HERTH
Management, Inc."
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C. Merger.
The merger of the Merging Corporation into the Surviving Corporation
will be effected pursuant to the terms and conditions of this Plan. Upon the
merger becoming effective, the corporate existence of the Merging Corporation
will cease, and the corporate existence of the Surviving Corporation will
continue. The time when the merger becomes effective is hereinafter referred to
as the "Effective Time."
D. Conversion and Exchange of Shares.
At the Effective Time, the outstanding shares of the corporations
participating in the merger will be converted and exchanged as follows:
1. Surviving Corporation. The outstanding shares of the
Surviving Corporation will not be converted, exchanged, or altered in any manner
as a result of the merger and will remain outstanding as shares of the Surviving
Corporation.
2. Merging Corporation. Each outstanding share of the
Merging Corporation will be converted into and exchanged for one share of the
Surviving Corporation.
3. Fractional Shares. No fractional shares will be
issued. Any shareholder of the Merging Corporation who would otherwise be
entitled to receive five-tenths (.5) or more of a share will instead receive an
additional whole share; and any shareholder who would otherwise be entitled to
less than five-tenths (.5) of a share will not receive any consideration for
such fractional interest.
4. Surrender of Share Certificates. Each holder of a
certificate representing shares to be converted or exchanged in the merger will
surrender such certificate and after the Effective Time will be entitled to
receive in exchange therefor a certificate or certificates representing the
number of shares to which he is entitled under
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this Plan. Until so surrendered, each outstanding certificate that prior to the
Effective Time represented shares of the Merging Corporation will be deemed for
all purposes to evidence ownership of the consideration to be issued for such
shares under this Plan.
E. Amendments to Articles of Incorporation.
The Articles of Incorporation of the Surviving Corporation will not be
amended.
F. Abandonment.
After approval of this Plan by the directors of the Surviving
Corporation, and at any time prior to the merger becoming effective, the board
of directors of the Surviving Corporation may, in their discretion, abandon the
merger.
* * * * * * * * * * * * * * * *
II. Shareholder approval of the Plan of Merger was not required
because the Surviving Corporation was the owner of at least ninety percent (90%)
of the outstanding shares of each class of the Merging Corporation and the Plan
of Merger does not provide for any changes in the Articles of Incorporation of
the Surviving Corporation that require shareholder action.
This the 31st day of December, 1997
HERTH MANAGEMENT, INC.
By: \s\ JAMES C. RICHARDSON, JR.
----------------------------------------
President James C. Richardson, Jr.
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CONSENT OF DIRECTORS
OF HERTH MANAGEMENT, INC.
TO ACTION WITHOUT MEETING
December 31, 1997
The undersigned, being all of the directors of HERTH Management, Inc.,
do hereby adopt the following resolution by signing our written consent thereto:
Adoption of Plan of Merger
RESOLVED, That the Plan of Merger attached hereto be and is hereby
adopted as the Plan of Merger of this Corporation, and the Secretary is
directed to cause the same to be inserted in the Minute Book; and
FURTHER RESOLVED, that the officers of this Corporation are authorized
to take all necessary actions and execute all necessary documents in
order to consummate this Merger.
This action is effective this 31st day of December, 1997.
\s\ JAMES C. RICHARDSON, JR. (SEAL)
-----------------------------
James C. Richardson, Jr.
Director
\s\ GREGORY A. EDGELL (SEAL)
-----------------------------
Gregory A. Edgell
Director
\s\ JAMES M. TEMPLETON (SEAL)
-----------------------------
James M. Templeton
Director
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PLAN OF MERGER
A. Corporations Participating in Merger.
RSH Management, Inc. (the "Merging Corporation") will merge into HERTH
Management, Inc., which will be the surviving corporation (the "Surviving
Corporation").
B. Name of Surviving Corporation.
After the merger, the Surviving Corporation will have the name "HERTH
Management, Inc."
C. Merger.
The merger of the Merging Corporation into the Surviving Corporation
will be effected pursuant to the terms and conditions of this Plan. Upon the
merger becoming effective, the corporate existence of the Merging Corporation
will cease, and the corporate existence of the Surviving Corporation will
continue. The time when the merger becomes effective is hereinafter referred to
as the "Effective Time."
D. Conversion and Exchange of Shares.
At the Effective Time, the outstanding shares of the corporations
participating in the merger will be converted and exchanged as follows:
1. Surviving Corporation. The outstanding shares of the
Surviving Corporation will not be converted, exchanged, or altered in any manner
as a result of the merger and will remain outstanding as shares of the Surviving
Corporation.
2. Merging Corporation. Each outstanding share of the
Merging Corporation will be converted into and exchanged for one share of the
Surviving Corporation.
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3. Fractional Shares. No fractional shares will be
issued. Any shareholder of the Merging Corporation who would otherwise be
entitled to receive five-tenths (.5) or more of a share will instead receive an
additional whole share; and any shareholder who would otherwise be entitled to
less than five-tenths (.5) of a share will not receive any consideration for
such fractional interest.
4. Surrender of Share Certificates. Each holder of a
certificate representing shares to be converted or exchanged in the merger will
surrender such certificate and after the Effective Time will be entitled to
receive in exchange therefor a certificate or certificates representing the
number of shares to which he is entitled under this Plan. Until so surrendered,
each outstanding certificate that prior to the Effective Time represented shares
of the Merging Corporation will be deemed for all purposes to evidence ownership
of the consideration to be issued for such shares under this Plan.
E. Amendments to Articles of Incorporation.
The Articles of Incorporation of the Surviving Corporation will not be
amended.
F. Abandonment.
After approval of this Plan by the directors of the Surviving
Corporation, and at any time prior to the merger becoming effective, the board
of directors of the Surviving Corporation may, in their discretion, abandon the
merger.
