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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 14D-9
(Amendment No. 22)
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. 22 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 is hereby amended and supplemented by adding thereto
the following:
(e) Annual Meeting Matters. The Company has received a notice,
dated July 21, 1994, from the Bidder of its intention to nominate eight
persons for election to the Board of Directors of the Company at the Company's
1994 Annual Meeting of Shareholders. A copy of the Notice by the Bidder under
Bylaws with respect to the 1994 Annual Meeting of Shareholders of the Company,
dated July 21, 1994, is filed as Exhibit 52 hereto and is incorporated herein
by reference.
Item 9. Material to be Filed as Exhibits.
Item 9 is hereby amended and supplemented by adding thereto the
following:
Exhibit 52 -- Notice by the Bidder under Bylaws with respect to the 1994
Annual Meeting of Shareholders of the Company, dated July 21,
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: July 25, 1994
WLR FOODS, INC.
By: /s/ James L. Keeler
Name: James L. Keeler
Title: President and Chief
Executive Officer
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Exhibit 52
Cede & Co.
c/o The Depository Trust Company
7 Hanover Square
New York, New York 10004
July 21, 1994
Mr. Delbert Seitz
Secretary
WLR Foods, Inc.
P.O. Box 7000
Broadway, Virginia 22815
Re: Notice under Bylaws with respect to the 1994
--------------------------------------------
Annual Meeting of Shareholders of WLR Foods, Inc.
-------------------------------------------------
Dear Mr. Seitz:
Cede & Co., the nominee of The Depository Trust Company ("DTC"), is a
record holder of common stock (the "Common Stock") of WLR Foods, Inc., a
Virginia corporation ("WLR" or the "Company"). DTC is informed by its
Participant, Stephens Inc. (the "Participant") that on the date hereof, 600,000
of such shares (the "Shares") credited to Participant's DTC account are
beneficially owned by WLR Acquisition Corp., a customer of the Participant
("Acquisition Corp." or the "Customer").
The purpose of this letter is to provide written notice to WLR, at the
request of the Participant and on behalf of the Customer, pursuant to Article
II, Section 4 of the Bylaws of the Company (the "Bylaws"), with respect to the
intention of Acquisition Corp. as beneficial owner of the Shares or Cede & Co.
as the record owner of the Shares to nominate eight (8) persons (the
"Independent Nominees") for election as directors of the Company at the 1994
Annual Meeting of Shareholders of WLR (the "Meeting").
At the request of the Participant, and on behalf of the Customer, Cede
& Co. hereby gives notice under the Bylaws with respect to the following
nominations of director candidates:
Nomination of Director Candidates:
- - ---------------------------------
In accordance with Article II, Section 4 of the Bylaws, notice is hereby
given to the Secretary of the Company of the following:
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1. The name and address of Acquisition Corp. are as follows:
WLR Acquisition Corp.
c/o Tyson Foods, Inc.
2210 West Oaklawn Drive
Springdale, Arkansas 72764
As of the date hereof, the shares of Common Stock, without par value,
beneficially owned by Acquisition Corp. are held in accounts of Acquisition
Corp. maintained with Stephens, Inc., which brokerage firm is a Participant in
The Depository Trust Company. Accordingly, the name and address of the holder of
record of such shares (the "Record Holder"), as it should appear in the
Company's books, is as follows:
Cede & Co.
P.O. Box 20
Bowling Green Station
New York, New York 10274
2. Acquisition Corp. is the beneficial owner of 600,000 shares of
Common Stock as of the date hereof and intends to be the beneficial owner of
Common Stock at all times from the date hereof to the date of the Meeting, and
is entitled to vote for the election of directors through the Record Holder.
Acquisition Corp. as the beneficial owner of the Shares (or Cede & Co. as the
record owner of the Shares) intends to appear in person (or, in the case of
Cede & Co, to cause, at the request of Participant, a duly appointed agent of
Cede & Co. to appear in person) or by proxy at the Meeting to nominate the
Independent Nominees.
3. At the Meeting, Acquisition Corp. as the beneficial owner of the Shares
(or Cede & Co. as the record owner of the Shares) intends to propose a
resolution (the "Resolution"), to be voted on by the Company's stockholders
pursuant to Article 13.1-675(C) of the Virginia Stock Corporation Act,
increasing the size of the Board of Directors of the Company (the "Board" or the
"Board of Directors") from ten (10) directors to fifteen (15) directors, in
accordance with Article II, Section 2, of the Bylaws.
4. Acquisition Corp. as the beneficial owner of the Shares (or Cede & Co.
as the record owner of the Shares) intends to nominate the persons listed below
as the Independent Nominees. The Independent Nominees have furnished to
Acquisition Corp. the following information concerning their principal
occupation and certain other matters. The Independent Nominees are citizens of
the United States.
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Name and
Business Address Age Employment History
- ------------------ --- ------------------
Fred Cameron 60 For the past five years, Mr. Cameron has
P.O. Box 265 been self-employed as a private investor
National City, CA 91951 and a cattle rancher. Mr. Cameron is the
former President of C&M Packing Company
of San Diego (a meat packing company).
James Clark Irwin 67 From November, 1982 through present,
2401 Johnson Road self-employed owner and operator of a
Springdale, AR 72763 poultry and beef farm. Mr. Irwin was the
Vice-President of Live Production For
Tyson Foods, Inc. for 22 years, and has
been a broiler grower for Tyson Foods,
Inc. for 33 years. Mr. Irwin serves as a
director of the Bank of Fayetteville
(Fayetteville, Arkansas).
Michael J. Levitt 63 For over twenty years, Mr. Levitt has
1 East Stow Road been the sole owner of Michaels Develop-
P.O. Box 994 ment Company, Interstate Realty Manage-
Marlton, NJ 08053 ment Co. and Continental Mortgage Corp.
(national developers/owners/managers of
government subsidized low income rental
housing).
Hayden McIlroy 55 From March, 1986 through present, Mr.
25 Highland Park Village McIlroy has been President of H.M.
Suite 100-341 Investments (a private investment
Dallas, TX 75205 company). Mr. McIlroy was previously
President and Chief Executive Officer of
McIlroy Bank & Trust (Fayetteville,
Arkansas).
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Name and
Business Address Age Employment History
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Mitchell S. Rosenthal, 59 Dr. Rosenthal founded Phoenix House, one
M.D. of the largest private, non-profit sub-
164 West 74th Street stance abuse services agencies in the
New York, NY 10023 United States, in 1967, and has served
as its chief executive and as President
and Chief Executive Officer of Phoenix
House Foundation since that time
through the present. Dr. Rosenthal has
also chaired the New York State
Advisory Council on Substance Abuse
since 1985, and has been a White House
advisor on drug abuse and a special
consultant to the Office on National
Drug Abuse Policy.
P.R. Smith 69 For over twenty years, Mr. Smith has
P.O. Box 593 owned and operated family farms and
Winder, GA 30680 agribusinesses. From 1973 through 1980,
Mr. Smith served as a member of the
Board of Regents of the University of
Georgia System. From 1977 through 1980
Mr. Smith was an Assistant Secretary of
Agriculture of the United States. Mr.
Smith is a past Vice President of the
Georgia Farm Bureau and a past Chairman
of the Georgia Cotton Commission. Mr.
Smith is a member of the Board of
Trustees and the Treasurer of Christian
College of Georgia.
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Name and
Business Address Age Employment History
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Gerald A. Welch 59 Mr. Welch has been retired since April,
7355 Hidden Cove 1994. From January, 1988 through
Kalamazoo, MI 49009 February, 1992, Mr. Welch served as
Senior Vice President, and from
February, 1992 through April, 1994, he
served as Executive Vice President, of
the Pharmaceuticals, Seeds and Animal
Health Products Division of the Upjohn
Company. Mr. Welch serves as a director
of Union Pump Co. (Battle Creek,
Michigan), Biggs-Gilmore Advertising
(Kalamazoo, Michigan) and Cytrex
Corporation (Atlanta, Georgia).
Alan L. Wurtzel 60 Since 1994, Mr. Wurtzel has been Vice
2134 R Street, N.W. Chairman of Circuit City Stores, Inc.
Washington, DC 20008 (electronics and appliances retailer)
and from 1986-1994, he served as
Chairman of Circuit City Stores, Inc.
Mr. Wurtzel is also a director of
Office Depot, Inc.
5. Acquisition Corp. as the beneficial owner of the Shares (or Cede & Co.
as the record owner of the Shares) intends to nominate each of Messrs. Levitt,
McIlroy and Welch for election to a three-year term as a Class A director of
the Company. The remaining Independent Nominees (namely, Messrs. Cameron,
Irwin, Rosenthal, Smith and Wurtzel) will be nominated to fill the five (5)
vacancies created by the Resolution, if the Resolution is approved by the
Company's shareholders. In that event, Acquisition Corp. as the beneficial
owner of the Shares (or Cede & Co. as the record owner of the Shares) intends
to nominate each of Messrs. Cameron and Irwin to a two-year term as a Class C
director of the Company; each of Messrs. Rosenthal and Smith to a one-year
term as a Class B director of the Company; and Mr. Wurtzel to a three-year
term as a Class A director of the Company; all in accordance with Article
THREE, Section One of the Articles of Restatement of the Company (the
"Restated Articles"). If elected, each of the Independent Nominees would
hold office until the annual meeting of the Company's shareholders at which
his term is scheduled to expire and until his successor shall be duly elected
and qualified or until his earlier death, resignation or removal.
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6. Tyson Foods, Inc. ("Tyson") and Acquisition Corp. have entered into
agreements with each Nominee (the "Nominee Agreements"), pursuant to which
Tyson and Acquisition Corp. have agreed to promptly reimburse the Independent
Nominees for all out-of-pocket costs and expenses reasonably incurred by them
in connection with their nominations for election as directors of the Company
and related matters. The Nominee Agreements further provide that Tyson and
Acquisition Corp. will indemnify the Independent Nominees against all claims,
liabilities and expenses incurred by the Independent Nominees which arise out
of or relate to Tyson's and Acquisition Corp.'s solicitation of proxies in
connection with the Meeting, any proposed acquisition of the Company by Tyson
and/or Acquisition Corp., the Independent Nominee's nomination for election as
a director of the Company, the Independent Nominee's serving as a director of
the Company, or any related matter.
Pursuant to the Nominee Agreements, Tyson, Acquisition Corp. and each
Independent Nominee have acknowledged and agreed that Tyson and Acquisition
Corp. intend to nominate such Independent Nominee for election as a director
of the Company and to solicit proxies in connection therewith upon the
understanding that if such Independent Nominee is elected as a director of the
Company, such Independent Nominee will take whatever actions are necessary,
appropriate and available to him in his capacity as a director of the Company
to (i) cause the Company to redeem the rights (the "Rights") issued pursuant
to the Shareholder Protection Rights Agreement, dated as of February 4, 1994,
between the Company and First Union National Bank of North Carolina, as Rights
Agent, (ii) enter into a definitive merger agreement with Acquisition Corp.
(or another affiliate of Tyson) and Tyson providing for the acquisition of
the Company by Tyson (the "Proposed Merger"), (iii) cause the provisions of
Article 14 of the Virginia Stock Corporation Act ("VSCA") (the "Virginia
Affiliated Transactions Law") and Article 14.1 of the VSCA (the "Virginia
Control Share Act") to be deemed inapplicable to the Proposed Merger or any
shares of common stock of the Company acquired by Tyson or Acquisition Corp. in
connection with their efforts to effect the Proposed Merger and (iv) otherwise
facilitate the acquisition of the Company by Tyson; all subject, in all events,
to the fulfillment of such Independent Nominee's fiduciary duties as a director
of the Company under applicable Virginia law.
The Nominee Agreements provide that Tyson will pay each Independent
Nominee the amount of $12,000 upon the dissemination to shareholders of the
Company of a Proxy Statement relating to the nomination of the Independent
Nominees for election at the Meeting, and further provide that in the event
that such Independent Nominee is required to attend any meetings in connection
with his nomination prior to his election as a director of the Company
(including the Meeting), or to attend any hearings, depositions or the like in
connection with his nomination or service as a director, Tyson will pay such
Independent Nominee $1,000 per day plus his expenses incurred in connection
with his attendance at such meeting, hearing or deposition.
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The foregoing description of the Nominee Agreements is qualified in its
entirety by reference to the Form of Nominee Agreement attached hereto as
Exhibit A.
Except as described above, there are no other arrangements between
Acquisition Corp. and the Independent Nominees or between Acquisition Corp. and
any other person pursuant to which Acquisition Corp. makes or will make such
nomination.
7. Each of the Independent Nominees has consented to serve as a director
of the Company if so elected. Copies of the consents of the Independent
Nominees are enclosed herewith.
Please direct any questions regarding this notice to John T. O'Connor,
Esq. of Milbank, Tweed, Hadley & McCloy, One Chase Manhattan Plaza, New York,
NY 10005, (212) 530-5548.
While Cede & Co. is furnishing the notice stated herein as the
stockholder of record of the Shares, it does so at the request of Participant
and only as a nominal party for the true party in interest, the Customer.
Cede & Co. has no interest in this matter other than to take those steps which
are necessary to ensure that the Customer is not denied its rights as the
beneficial owner of the Shares, and Cede & Co. assumes no further
responsibility in this matter.
Very truly yours,
Cede & Co.
By:
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Kenneth M. Scholl, partner
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STATE OF NEW YORK )
) SS.
COUNTY OF NEW YORK )
Kenneth M. Scholl, partner, having been first duly sworn according to
law, deposes and says that he is a partner of Cede & Co., that he is
authorized to execute the foregoing notice and to make the designations,
authorizations and representations contained therein, and that the facts and
statements contained in the foregoing notice are true and correct.
Cede & Co.
By:
--------------------------------
Kenneth M. Scholl, partner
SWORN TO AND SUBSCRIBED before me
this 21st day of July, 1994
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Notary Public
SUE ANN VAJDA
Notary Public, State of New York
No. 41-4822492
Qualified in Queens County
Commission Expires December 31, 1994
