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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 14D-9
(Amendment No. 20)
Solicitation/Recommendation Statement Pursuant to
Section 14(d)(4) of the Securities Exchange Act of 1934
WLR FOODS, INC.
(Name of Subject Company)
WLR FOODS, INC.
(Name of Person(s) Filing Statement)
Common Stock, No Par Value
(including the associated preferred stock purchase rights)
(Title of Class of Securities)
929286 10 2
(CUSIP Number of Class of Securities)
Delbert L. Seitz
Chief Financial Officer
WLR Foods, Inc.
P.O. Box 7000
Broadway, Virginia 22815
(703) 896-7001
(Name, address and telephone number of person authorized to
receive notice and communications on behalf of the person(s)
filing statement)
Copies to:
Neil T. Anderson, Esq. John W. Flora, Esq.
Sullivan & Cromwell Wharton, Aldhizer & Weaver
125 Broad Street 100 South Mason Street
New York, New York 10004 Harrisonburg, Virginia 22801
(212) 558-4000 (703) 434-0316
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This Amendment No. 20 amends and supplements the
Solicitation/Recommendation Statement on Schedule 14D-9, dated March 14,
1994, as amended (the "Schedule 14D-9"), filed by WLR Foods, Inc., a
Virginia corporation (the "Company"), relating to the tender offer
disclosed in the Schedule 14D-1, dated March 9, 1994, as amended (the
"Schedule 14D-1"), of the bidder, Tyson Foods, Inc., a Delaware corporation
(the "Bidder"), to, through its wholly-owned subsidiary, WLR Acquisition
Corp., purchase all of the outstanding Shares upon the terms and subject to
the conditions set forth in the Offer to Purchase, dated March 9, 1994, and
the related Letter of Transmittal (together, the "Offer"). Capitalized
terms used and not defined herein shall have the meanings set forth in the
Schedule 14D-9.
Item 8. Additional Information to be Furnished.
Item 8(c) is hereby amended and supplemented by adding thereto
the following:
On Friday, June 3, 1994, The Corporation Trust Company, the
independent inspector of elections selected to tabulate the votes at the
special meeting, certified its final tabulation of the results of the
special meeting to the Company in the Report of Inspectors of Election.
The Report of Inspectors of Election certifies that only 3,152,830 shares
were voted in favor of the Tyson Proposal. This represents 28.9% of those
the inspectors determined entitled to vote at the special meeting and 28.7%
of the Company's total outstanding shares. 5,977,118, or almost 55% of those
entitled to vote, voted against the Tyson Proposal, representing 54.5% of the
Company's total outstanding shares. 53,547 shares voted to abstain on the
proposal.
Item 8(d) is hereby amended and supplemented by adding thereto
the following:
On June 21, 1994, U.S. District Judge James H. Michael, Jr.
entered an Order (the "Order") denying the Bidder's May 3, 1994 motion for a
preliminary injunction. The court rejected the Bidder's claims that (i) the
Company's Board of Directors improperly set the record date for the special
meeting, and (ii) the 1,272,919 shares of the Company's common stock, held by
Messrs. George H. Bryan, Herman D. Mason, William D. Wampler and Charles W.
Wampler, Jr. and their respective associates, are "interested shares" under
the Virginia Control Share Acquisitions Statute. A copy of Judge Michael's
Order and the related Memorandum Opinion are filed as Exhibits 46 and
47 hereto and are incorporated herein by reference. The foregoing descrip-
tion of the Order is qualified in its entirety by reference to the text of
the Order.
Item 9. Material to be Filed as Exhibits.
Item 9 is hereby amended and supplemented by adding thereto the
following:
Exhibit 46 -- Order, entered June 21, 1994.
Exhibit 47 -- Memorandum Opinion, entered June 21, 1994.
Exhibit 48 -- Press Release, dated June 22, 1994.
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SIGNATURE
After reasonable inquiry and to the best of my
knowledge and belief, I certify that the information set forth
in this statement is true, complete and correct.
Dated: June 23, 1994
WLR FOODS, INC.
By: /s/ James L. Keeler
Name: James L. Keeler
Title: President and Chief
Executive Officer
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Exhibit 46
ENTERED
6/21/94
CLERK'S OFFICE, U.S. DIST. CT.
AT CHARLOTTESVILLE, VA
FILED for Harrisonburg
JUN 21 1994
MORGAN E. SCOTT, JR., CLERK
By /s/ J. Turner
Deputy Clerk
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
HARRISONBURG DIVISION
WLR FOODS, INC., ) CIVIL ACTION NO. 94-012-H
Plaintiff, )
v. ) O R D E R
TYSON FOODS, INC., )
Defendant, )
and )
TYSON FOODS, INC. and )
WLR ACQUISITION CORP., )
Counterclaimants, )
v. )
WLR FOODS, INC., et als., )
Counterclaim-defendants. ) JUDGE JAMES H. MICHAEL, JR.
For the reasons stated in the accompanying Memorandum Opinion,
it is this day
ADJUDGED AND ORDERED
that:
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Tyson Food, Inc.'s May 3, 1994 Motion for a preliminary
injunction shall be, and it hereby is, denied. As a result, based on
information contained in the Affidavit of Gayle S. Payne, designated as
Plaintiff's Exhibit # 204:
1. The 304,046 shares of WLR Foods, Inc. stock held by George
E. Bryan and his associates are not interested shares for the purpose of
voting in the May 21, 1994 control share referendum.
2. The 197,612 shares of WLR Foods, Inc. stock held by Herman
D. Mason and his associates are not interested shares for the purpose of
voting in the May 21, 1994 control share referendum.
3. The 347,989 shares of WLR Foods, Inc. stock held by Charles
W. Wampler, Jr. and his associates are not interested shares for the
purpose of voting in the May 21, 1994 control share referendum.
4. The 423,272 shares of WLR Foods, Inc. stock held by William
D. Wampler and his associates are not interested shares for the purpose of
voting in the May 21, 1994 control share referendum.
5. The 40,003 shares of WLR Foods, Inc. stock held by James L.
Keeler and his associates are interested shares for the purpose of voting
in the May 21, 1994 control share referendum.
6. The 350 shares of WLR Foods, Inc. stock held by Delbert L.
Seitz and his associates are interested shares for the purpose of voting in
the May 21, 1994 control share referendum.
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7. The 43,346 shares of WLR Foods, Inc. stock held by James L.
Mason and his associates are interested shares for the purpose of voting in
the May 21, 1994 control share referendum.
8. The 1,597 shares of WLR Foods, Inc. stock held by Jane T.
Brookshire and her associates are interested shares for the purpose of
voting in the May 21, 1994 control share referendum.
9. The 33 shares of WLR Foods, Inc. stock held by Gayle S.
Payne and her associates are interested shares for the purpose of voting in
the May 21, 1994 control share referendum.
10. All other shares of WLR Foods, Inc. stock held by persons,
and the associates of such persons, not previously mentioned in this Order
but listed in the Affidavit of Gayle S. Payne, designated as Plaintiff's
Exhibit # 204, are not interested shares for the purpose of voting in the
May 21, 1994 control share referendum.
The clerk is hereby directed to send a certified copy of this
Order, and the accompanying Memorandum Opinion, to all counsel of record.
ENTERED: /s/ James H. Michael, Jr.
Judge
June 21, 1994
Date
A TRUE COPY, TESTE:
MORGAN E. SCOTT, JR., CLERK
BY: /s/ J. Turner
DEPUTY CLERK
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Exhibit 47
ENTERED
6/21/94
CLERK'S OFFICE, U.S. DIST. CT.
AT CHARLOTTESVILLE, VA
FILED for Harrisonburg
JUN 21 1994
MORGAN E. SCOTT, JR., Clerk
By /s/ J. Turner
Deputy Clerk
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
HARRISONBURG DIVISION
WLR FOODS, INC., ) CIVIL ACTION NO. 94-012-H
Plaintiff, )
v. ) MEMORANDUM OPINION
TYSON FOODS, INC., )
Defendant, )
and )
TYSON FOODS, INC. and )
WLR ACQUISITION CORP., )
Counterclaimants, )
v. )
WLR FOODS, INC., et als., )
Counterclaim-defendants. ) JUDGE JAMES H. MICHAEL, JR.
Tyson Foods, Inc. (Tyson) has commenced a hostile attempt to
takeover WLR Foods, Inc. (WLR). WLR has filed suit seeking a declaratory
judgment affirming various measures undertaken by WLR to defend against
Tyson's takeover attempt. Tyson has counterclaimed, asserting that such
measures are
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illegal and that the Virginia statutory scheme regulating hostile takeover
attempts is unconstitutional.
The only issues before the court at this time are whether WLR's
Board of Directors properly set the record date to determine which
shareholders may vote in the control share referendum, and whether four
directors (George Bryan, Herman Mason, Charles Wampler, and William
Wampler) who resigned as employees of WLR before the record date should be
permitted to vote in the referendum. Tyson's motion for preliminary
injunction is denied.
I.
Hostile takeover attempts in Virginia are governed in part by
the Virginia Control Share Act, Va. Code secs. 13.1-728.1 to 13.1-728.9.
The Act states that any shares acquired in a control share acquisition1
have no voting rights, unless a majority of shareholders entitled to vote
grants such voting rights. Va. Code sec. 13.1-728.3. Interested shares
may not vote in the control share referendum. Id.
In order to defend against Tyson's takeover attempt, WLR took
several actions at a February 4, 1994 meeting of its Board of Directors.
Three of those actions are pertinent to the issues currently before the
court. First, the Board amended
1 In pertinent part, a "control share acquisition" is defined as an
acquisition of at least 20% of the voting shares of a Virginia
corporation in which the target corporation does not wish to be
acquired, i.e. a hostile takeover. Va. Code sec. 13.1-728.1. No
party disputes that what Tyson is attempting qualifies as a control
share acquisition.
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WLR's bylaws to set the record date for a control share referendum as the
date on which Tyson submitted its control share acquisition statement.2
Tyson filed this statement on April 14, 1994, establishing that date as the
record date. Secondly, four members of the Board of Directors resigned as
employees of WLR. Lastly, the Board of Directors amended WLR's bylaws to
make clear that the Chairman and Vice Chairman of the Board are officers of
the Board of Directors, but they are not officers of WLR. The final two
measures were designed to enable the four Directors to vote in the control
share referendum. The subject of this preliminary injunction motion is the
validity of these three actions pursuant to the Virginia Control Share Act.
Other issues are saved for another day.
II.
In deciding whether to issue a preliminary injunction, the
court must consider four factors: (1) the likelihood of irreparable harm
to Tyson without the injunction; (2) the likelihood of harm to WLR with the
injunction; (3) Tyson's likelihood of success on the merits; and (4) the
public interest. Blackwelder Furniture Co. v. Seilig Mfg. Co., 550 F.2d
189, 193-96 (4th Cir. 1977). These four factors are to be weighed flexibly
based on a sliding-scale approach, and a strong showing by a party with
regard to one factor reduces the need for that
2 Virginia Code sec. 13.1-728.4 requires Tyson to submit to WLR a
control share acquisition statement, which must provide certain
details of Tyson's position and intentions with respect to its
attempted control share acquisition.
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party to make a strong showing on other factors. Dan River, Inc. v. Icahn,
701 F.2d 278, 283 (4th Cir. 1983) (citing North Carolina State Ports v.
Dart Containerline Co., 592 F.2d 749, 750 (4th Cir. 1979)).
As previously stated, the issues before the court are
particularly narrow and involve only the validity of the Directors' actions
pursuant to the Control Share Act. As a result of the court's uniquely
narrow inquiry, the only potential harm to Tyson is a skewing of the
results of the control share referendum caused by the four director's votes
being counted and the particular record date chosen by WLR. The referendum
took place on May 21, 1994, and in order to prevail Tyson needed a majority
of shares eligible to vote. Va. Code sec. 13.1-728.3. Tyson received only
3,152,830 votes out of 10,896,672 shares eligible to vote, including shares
held by the four directors and their associates.3 Even if all of them
were excluded, however, the number of shares eligible to vote would have
fallen to 9,500,742, giving Tyson only 33% of shares eligible to vote, far
less than the majority that it needed. In fact, given the number of shares
that were voted for Tyson, in order for Tyson to prevail the number of
shares eligible to vote would have to fall
3 Of the 1.833 million shares challenged by Tyson, 1,395,930 were
counted as eligible to vote and the remainder was excluded.
-4-
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to 6,305,659. That would entail excluding more than three times the
1,395,930 shares challenged by Tyson.4 Clearly, given the results of
the control share referendum, Tyson will suffer little, if any, harm if its
motion for a preliminary injunction is denied. The vote simply would not
have come out differently.
Because of the apparent lack of harm to Tyson, the likelihood
of success on the merits must weigh heavily in Tyson's favor in order for
it to prevail. The likelihood of each party's success on the merits turns
on the validity of the actions taken by WLR's Board of Directors pursuant
to the Virginia Control Share Act. In addition, as expressed by the
Virginia legislature, the public interest is served by allowing the Control
Share Act to dictate the procedures to be followed in hostile takeovers.
As a result, in weighing the Blackwelder factors the court now must address
the validity of the directors' actions pursuant to the Control Share Act.
Whether these actions violated any other provisions of law is not at issue
and does not affect the court's decision.
4 One extremely unlikely scenario exists in which Tyson could have
prevailed. If all of the votes challenged by Tyson were excluded,
the number of shares eligible to vote would fall to 9,500,742. In
addition, 1,603,800 shares were counted as eligible to vote but did
not do so. If every one of these shares was prevented from voting
because of the manner in which WLR set the record date, and if every
one of them would have voted for Tyson, then Tyson would have
received 4,756,630 votes out of 9,500,742 eligible shares. This
would give Tyson approximately 50.066% of the vote. Notwithstanding,
the court considers this scenario unrealistic.
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III.
The first matter before the court is the validity of the record
date set to determine which shares may vote in the control share
referendum. WLR's Board of Directors fixed the record date as the date on
which Tyson submits its control share acquisition statement, which was done
on April 14, 1994. Tyson contends that the record date was set in this
manner in order to deprive the marketplace of adequate notice by preventing
shareholders who purchased their shares after the record date from voting
in the control share referendum. This argument assumes that those who sell
their shares before the record date will not be concerned enough to vote.
Tyson alleges that WLR did this in order to increase the number of shares
which are not voted in the control share referendum, and this harms Tyson
because sec. 13.1-728.3 requires that Tyson receive a majority of shares
eligible to vote. WLR responds that it set the record date as it did in
order to prevent Tyson from manipulating the rules of the Control Share Act
by acquiring by some means shares in the time period between the filing of
the control share acquisition statement and the record date--asserted by
Tyson to be between five (5) and ten (10) days--and then placing those
acquired shares in friendly hands for the purpose of voting in the control
share referendum.
Regardless of the benefits or drawbacks to either party of a
particular record date, WLR plainly is permitted to set the record date as
it has done in this case. Virginia Code
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sec. 13.1-660(A) states: "The bylaws may fix or provide the manner of
fixing in advance the record date for one or more voting groups in order to
make a determination of shareholders for any purpose." The only limitation
on the Board's authority contained in sec. 13.1-660 provides that the
record date may not be more than seventy days before the shareholder
meeting or action for which the determination of shareholders is required.
Id. sec. 13.1-660(B). The only other limitation set by Virginia law is
contained in Va. Code sec. 13.1-690, which sets the standard for director
conduct as "good faith business judgment". This court previously has ruled
in this case that pursuant to sec. 13.1-690 "good faith is to be measured
by the directors' resort to an informed decisionmaking process, not by the
rationality of the decision ultimately taken." WLR Foods, Inc. v. Tyson
Foods, Inc., No. 94-012-H, 1994 WL 241834, at *1 (W.D. Va. June 1, 1994).
There is no dispute that WLR's directors undertook an informed
decisionmaking process with regard to the selection of a
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record date.5 As a result, the record date is valid pursuant to Virginia
law.
IV.
Tyson next asserts that the four directors who resigned as
employees on February 4, 1994 should not be permitted to vote their shares
in the control share referendum. Virginia Code sec. 13.1-728.1(B)
prohibits "interested shares," as determined on the record date, from
voting in the control share referendum, and "interested shares" is defined
as shares of WLR held by the following persons: (1) the acquiring person,
i.e. Tyson; (2) any officer of the target corporation; and (3) any employee
of the target corporation who is also a director of the corporation.6 Id.
sec. 13.1-728.1. Shares are interested not only if they are held by any of
the above persons, but also if they are held by such person's "associates,"
which includes: (1) any person who
5 Even if this court reviewed the substantive rationality of the
directors' decision to set the record date as they did, clearly their
decision should stand. Despite Tyson's protests, a certain number of
shares purchased near the time of the record date would not be able
to vote regardless of the particular date chosen. In addition, all
shares must be owned by someone on the record date, even if the owner
is someone who has since sold the shares and is less likely to vote.
WLR's asserted desire to prevent any party from manipulating the
Control Share Act by placing shares in disinterested hands prior to
a record date announced in advance rather than without notice
certainly qualifies as a rational decision.
6 Because the term "employee" includes officers, Va. Code
sec. 13.1-603, and it is not disputed that the four men were
directors on the record date, their shares are interested shares if
they were employees of WLR on the record date, regardless of whether
they were officers.
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controls or is controlled by an interested person or who acts jointly or in
concert with an interested person in connection with the acquisition or
exercise of beneficial ownership over shares; (2) any organization for
which an interested person functions as an officer, director, or partner;
(3) any person having beneficial ownership over ten percent or more of any
class of equity securities issued by an interested person; (4) any trust or
estate in which an interested person has a beneficial interest or serves in
a fiduciary capacity; and (5) any relative or spouse or relative of such
spouse who has the same residence as an interested person. Tyson alleges
that the four directors and their associates hold approximately 1.833
million shares of WLR,7 and those shares should be excluded from the
control share referendum because they are interested.
WLR freely admits that the directors resigned as employees for
the purpose of voting their shares in the control share referendum. Their
motive for resigning, however, is not relevant to deciding whether their
shares are interested. Va. Code sec. 13.1-728.3 plainly states that the
determination of which shares are interested is to be made as of the record
date. There is no exclusion for shares held by a person who formerly was
an employee but remains a director on the record date. The legislature
apparently decided that a director/employee could
7 WLR has slightly less than 11 million shares outstanding, so the
disputed shares represent approximately seventeen percent of the
shares outstanding.
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choose that the benefits of voting in a control share referendum outweigh
the benefits derived from remaining an employee. Whether one is an
employee, however, must be determined based on one's functions and duties.
See, e.g., Reliance Elec. Co. v. Emerson Elec. Co., 404 U.S. 418, 425 n.4
(1972); Gold v. Sloan, 486 F.2d 340, 351 (4th Cir. 1973); see also Va. Code
sec. 13.1-603 ("A director may accept duties that might make him an
employee.") (emphasis added). In this case, the four directors resigned
as employees on February 4, 1994 and the record date was April 14, 1994.
Whether the four directors may vote their shares, therefore, turns on
whether they truly resigned or whether they continued to function as
employees as of April 14, 1994.
Tyson presented no direct evidence that the four directors
continued to function as employees as of April 14, 1994. Instead, it
attempted to demonstrate that they were employees before April 14 and that
as of April 14 they performed the same functions as they did before they
resigned. WLR contends, however, that the four directors had not
functioned as employees for quite some time, and the February 4
resignations were intended merely to clarify their true roles within WLR.
After considering all of the evidence, the court concludes that the four
directors in question were not employees on the record date.
Charles Wampler is Chairman of the Board of Directors of WLR,
and on February 4, 1994 WLR amended its bylaws to make the Chairman and
Vice Chairman officers of the Board of Directors, and not officers of the
company. WLR claims that he
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has not been involved in active management of daily operations for decades.
As of April 14, 1994 his only function was as Chairman of the Board. He
did not report to anyone and no one reported to him. He signed no checks
on WLR's behalf, and he had no authority to direct other WLR employees.
When he resigned as an employee, he gave up his salary of approximately
$50,000 per year and has not received a salary since then. His only
connection with WLR's daily operations occurs when he gives advice during
his occasional walks through WLR's plants and his talks with WLR's growers.
No evidence was presented that his advice is ever followed.
Herman Mason is Vice Chairman of the Board of Directors and was
Chief Executive Officer of WLR until 1988, when he announced his retirement
at a meeting of the National Turkey Federation. Since 1988, his only role
other than as a director has been to act as a "sounding board" for the
current Chief Executive Officer, James Keeler. Keeler is free to follow or
disregard Mason's advice, as he sees fit. As of April 14, 1994 Mason no
longer received a salary, gave no orders, had no secretary, could not hire
or fire on WLR's behalf, and shared a desk at WLR's headquarters which he
used only to receive his mail. Although after February 4, 1994 he helped
Keeler select the advisors used by WLR in connection with Tyson's takeover
attempt, the court views that function as an appropriate one for a director
and unconnected with WLR's daily activities or management of its
operations.
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William Wampler and George Bryan are even less connected with
WLR's operations than are Charles Wampler and Herman Mason. William
Wampler formerly was a Senior Vice President, but since his resignation on
February 4, 1994 he no longer receives a salary, has no office, has no
secretary, and neither gives nor takes orders. George Bryan has not been
connected with the operations of WLR since the early 1970s, although he is
still a director and retained the title of Senior Vice President until
February 4, 1994. After his February 4 resignation, he no longer received
a salary, had no office or secretary, had no authority to hire or fire, and
neither gave nor took any orders. Even before February 4 Bryan rarely came
to WLR's offices except for meetings of the Board of Directors. In fact,
he has been seriously ill and has not performed any functions for WLR since
before February 4, 1994.
Other than director's fees, the only benefit that the four
directors still receive from WLR is lifetime health insurance benefits.
Tyson maintains that this is a disguised effort to compensate them for
services as employees, rather than a provision of post-retirement benefits.
WLR presented evidence, however, that it previously has given lifetime
health insurance benefits to nine other high-ranking officers after they
retired. WLR asserts that it has a history of being loyal to former
employees who have given a lot to the company. Based on this track record,
the court finds that even if the health benefits given to the four
directors were as probative as the duties that
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they performed as of the record date, the health benefits were retirement
benefits rather than compensation for current services.
Tyson also presented evidence that WLR designated the four
directors as employees as recently as October of 1993 in various filings
with the Securities and Exchange Commission and the State Corporation
Commission. Furthermore, WLR told its shareholders in its 1993 proxy
statement that the four directors were officers who were crucial to WLR's
continued success. Despite this, Tyson presented little, if any, evidence
that any of the four directors performed any duties that would qualify them
as employees. The documents cited by Tyson were filed before the February
4, 1994 resignations of the four directors.8 As a result, the documents
listing the four directors as employees do not persuade the court that they
were employees anytime after their resignations on February 4, 1994.
Tyson,
8 The only document filed after February 4, 1994 is WLR's Annual Report
to the State Corporation Commission. This document deleted George
Bryan, Herman Mason, and Charles Wampler as officers of WLR and
designated them solely as directors. William Wampler, however, was
deleted as a director and remained as an officer. If he was
designated as both an officer and a director his identification as
such would warrant more careful consideration, but the court
considers the designation of William Wampler as an officer rather
than a director to be an inadvertent error. Although the wrong box
was marked on the form, his title on the form was changed from Senior
Vice President to Director. Also, no party contends that William
Wampler stopped acting as a director after February 4, 1994, but the
designation by WLR, if intentional, indicates that he did. Lastly,
WLR filed an amended report with the State Corporation Commission
correcting the error.
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however, asserts that because WLR does not dispute that the four directors
performed essentially the same functions as of April 14, 1994 as they did
before February 4, 1994 the documents show that they were, and still are,
employees of WLR. As stated previously, what is most important in
determining their employment status, however, is their duties and functions
rather than simply a nominal designation as employees. Evidence relating
to their role, or lack thereof, in the operations of WLR both before and
after their February 4 resignations is more forceful than evidence that the
four directors were designated as employees on documents filed in 1993.
After weighing all of the evidence, the court finds that on
April 14, 1994 George Bryan, Herman Mason, Charles Wampler, and William
Wampler were not employees of WLR. As a result, the shares that they hold
are not interested shares as defined by Va. Code sec. 13.1-728.1, and the
Control Share Act does not prevent them from voting their shares in the
control share referendum. In addition, because their shares are not
interested shares, shares held by their associates cannot be classified as
interested by virtue of their association. Officers and director/employees
of WLR may not vote in the control share referendum, but the four directors
in question do not fit within those categories.
V.
Pursuant to the narrow issues before the court, Tyson's motion
for a preliminary injunction is hereby denied. Tyson will
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suffer very little harm as a result of the denial, and the three actions at
issue in this proceeding do not violate the Virginia Control Share Act. As
a result, the four Blackwelder factors weigh heavily in WLR's favor.
An appropriate Order shall this day issue.
ENTERED: /s/ James H. Michael, Jr.
Judge
June 21, 1994
Date
A TRUE COPY, TESTE:
MORGAN E. SCOTT, JR., CLERK
By: /s/ J. Turner
DEPUTY CLERK
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Exhibit 48
[WLR FOODS, INC. LETTERHEAD]
FOR IMMEDIATE RELEASE Contact: Gail Price, Director of
Corporate Communication
Phone: 703-896-0403
WLR FOODS INC. ANNOUNCES FAVORABLE COURT RULING
Broadway, Virginia, June 22, 1994 -- WLR Foods Inc. (NASDAQ: WLRF) today
reported that the United States District Court for the Western District of
Virginia, Harrisonburg Division, has rejected challenges by Tyson Foods
Inc. to the voting rights of four WLR Foods directors and to the record
date for the Special Shareholders Meeting held on May 21, 1994. In that
recent proxy contest to decide whether Tyson and its associates should be
granted voting rights for shares of WLR Foods stock they may acquire, or
have acquired, in their hostile takeover attempt, Tyson was disputing the
voting rights of four WLR Foods directors, claiming their shares were
"interested" under Virginia's Control Share Statute and not entitled to
vote at the Special Meeting. The Court rejected Tyson's arguments ruling
that the 1,272,919 shares of directors George Bryan, Herman Mason, Charles
Wampler and Bill Wampler were eligible to vote at the Special Meeting.
Only 85,329 shares held by five members of WLR Foods management, not 22
managers as Tyson asserted, were ineligible in the opinion of the Court.
James L. Keeler, president and chief executive officer, commented, "We are
very pleased with the Court's ruling. Tyson can no longer hide behind
issues of fairness regarding the Special Meeting. It's time for Tyson to
honor his commitment to WLR Foods shareholders to terminate his inadequate
offer following Tyson's decisive defeat."
WLR Foods is a fully integrated provider of high quality turkey and chicken
products primarily under the Wampler-Longacre(r) label and retail ice under
the Cassco(r) label. This Fortune 500 company, with current annual
revenues of $710 million, exports to more than 40 countries and has
processing operations in Virginia, West Virginia and Pennsylvania, close to
its major mid-Atlantic markets.
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