As filed with the Securities and Exchange
Commission on December 7, 1994
Registration No. ______________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
under the Securities Act of 1933
WLR FOODS, INC.
(Exact name of registrant as specified in its charter)
Virginia 2000 54-1295923
(State or other jurisdiction Primary Standard (I.R.S. Employer
of incorporation or Industrial Classification Identification
organization) Code Number Number)
P.O. Box 7000
Broadway, Virginia 22815
(703) 896-7000
(Address, including zip code, and telephone number,
including area code, of principal executive offices)
John W. Flora
Wharton, Aldhizer & Weaver
100 South Mason Street
Harrisonburg, Virginia 22801
(703) 434-0316
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Approximate date of commencement of proposed sale to the public: As
soon as practicable after this Registration Statement becomes
effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following box: [ ]
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under
the Securities Act of 1933, other than securities offered only in
connection with dividend or interest reinvestment plans, check the
following box: [ X ]
CALCULATION OF REGISTRATION FEE
Title of Amount to Proposed maxi- Proposed maxi- Amount
Securities be regis- mum aggregate mum aggregate of regis-
to be reg- tered offering price offering price<F1> tration
istered per share fee
Common Stock 1,500,000 $25.50 $38,250,000 $13,189.66
no par value
[FN]
<F1> Pursuant to Rule 457(c), the registration statement fee has been
calculated on the basis of $25.50 per share, the average of the
high and low prices of the Registrant's Common Stock reported on
the NASDAQ National Market System on December 2, 1994.
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.
<PAGE>
SUBJECT TO COMPLETION
PRELIMINARY PROSPECTUS DATED DECEMBER 5, 1994
PROSPECTUS
WLR FOODS, INC.
POULTRY PRODUCER STOCK PURCHASE PLAN
This Prospectus relates to 1,500,000 shares of Common Stock,
no par value (the Common Stock) of WLR Foods, Inc. (WLR Foods or the
Company) which have been registered and which are reserved for
issuance under WLR Foods' Poultry Producer Stock Purchase Plan (the
Plan). Shares of WLR Foods' Common Stock may be purchased at a
discount, not to exceed fifteen percent (15%), through regular
contract payment deductions, without payment of brokerage commissions,
fees or related administrative charges.
WLR Foods Common Stock is listed on the National Market
System of the National Association of Securities Dealers' Automated
Quotation System (NASDAQ/NMS). The closing price of the Common Stock
on December 2, 1994, as reported by the National Market System, was
$25.75 per share.
An eligible poultry producer may enroll in the Plan by
completing a Contract Payment Deduction Authorization Form and
returning it to WLR Foods, Inc.'s Director of Shareholder Services,
who will serve as Administrator of the Plan. The Administrator can be
reached at the corporate offices of the Company, P.O. Box 7000,
Broadway, Virginia 22815 (703-896-7001).
For certain investment considerations associated with the Common
Stock, see "Investment Considerations," page 3.
_________________________
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY
THE SECURITIES AND EXCHANGE COMMISSION, NOR HAS THE COMMISSION PASSED
UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION
TO THE CONTRARY IS A CRIMINAL OFFENSE.
________________________
The date of this Prospectus is _____________________, 1994.
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed
with the Securities and Exchange Commission. These securities may not
be sold nor may offers to buy be accepted prior to the time the
registration statement becomes effective. This prospectus shall not
constitute an offer to sell or the solicitation of an offer to buy nor
shall there be any sale of these securities in any State in which such
offer, solicitation or sale would be unlawful prior to registration or
qualification under the securities laws of such State.
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AVAILABLE INFORMATION
WLR Foods is subject to the informational requirements of
the Securities Exchange Act of 1934 (the Exchange Act) and, in
accordance therewith, files reports and other information with the
Securities and Exchange Commission (Commission). Reports, proxy
statements and other information filed by WLR Foods can be inspected
and copied at the public reference facilities of the Commission,
Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549, as
well as at the following Regional Offices: 75 Park Place, New York,
New York 10278, and 219 South Dearborn Street, Chicago, Illinois
60604. Copies can be obtained by mail at prescribed rates. Requests
should be directed to the Commission's Public Reference Section,
Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed with the Commission are
incorporated by reference in this Prospectus: (1) the Company's
Annual Report on Form 10-K for the year ended July 2, 1994; (2) all
other reports filed by the Company pursuant to Sections 13 or 15(d) of
the Exchange Act since July 2, 1994; and (3) the description of the
Company's Common Stock contained in its Registration Statement on
Form 8-A (File No. 0-17060) and amendment to Form 8 filed
September 21, 1990, including any further amendment or report filed
subsequent to the date of this Prospectus and prior to the termination
of the offering described herein for the purpose of updating such
description. All documents filed by WLR Foods pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date
of this Prospectus and prior to the termination of the offering
described herein shall be deemed to be incorporated by reference into
this Prospectus and to be part hereof from the date of the filing of
such documents.
The Company will provide, without charge, to each person to
whom this Prospectus is delivered, on the request of any such person,
a copy of the Company's last annual report to shareholders or any
documents incorporated herein by reference (other than exhibits to
such documents). Requests for such copies should be directed to
Director of Shareholder Services, WLR Foods, Inc., P.O. Box 7000,
Broadway, Virginia 22815 (703-896-7001).
No person has been authorized to give any information or to
make any representation not contained in this Prospectus in connection
with the offering made hereby and, if given or made, such information
or representation must not be relied upon as having been authorized by
WLR Foods. This Prospectus does not constitute an offer to sell or a
solicitation of an offer to buy any securities other than the
registered securities to which it relates or an offer to sell or a
solicitation of an offer to buy to any person in any jurisdiction
where it is unlawful to make such offer or solicitation. Neither the
delivery of this Prospectus nor any sale made hereunder shall under
any circumstances create any implication that there has been no change
in the information contained herein since the date hereof.
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THE COMPANY
WLR Foods, a Virginia corporation, is a fully-integrated
provider of turkey and chicken products with operations in Virginia,
West Virginia, Pennsylvania and North Carolina. The mailing address
of the Company's principal executive offices is P.O. Box 7000,
Broadway, Virginia 22815, and its telephone number is (703) 896-7001.
INVESTMENT CONSIDERATIONS
The following factors should be considered in evaluating an
investment in the Common Stock.
Nature of Poultry Industry
The poultry industry is influenced by a considerable number
of uncontrollable conditions including disease, weather and prices of
both commodity grain and poultry. Although the Company places great
emphasis on disease control through bio-security measures and testing,
it is not immune to the risks of avian influenza, salmonella and other
microbial contamination. No assurances can be given that disease, or
adverse publicity associated with the threat of disease, may not
negatively affect the demand for poultry and poultry products.
The poultry industry, both as to the poultry itself and the
commodities, such as grain, used in the industry, is subject to the
adverse effects of bad weather, such as drought and extreme heat or
cold. Although the Company has taken steps to minimize the effects of
weather on its chickens and turkeys, the Company has little control
over the adverse effect of bad weather on the price of grain which is
used to make feed, the largest single cost of the Company's
operations. Additionally, the prices of corn and soybeans are subject
to other influences, such as government programs and foreign
competition.
Although poultry prices are affected by these costs of
production, poultry prices are controlled more by supply and demand,
making the poultry industry highly competitive. The pricing of
poultry products is so competitive that any company with a cost
advantage is in a favorable competitive position. Seasonal increases
in production and demand contribute to fluctuations in prices.
POULTRY PRODUCER STOCK PURCHASE PLAN
The following summarizes certain key features of the Poultry
Producer Stock Purchase Plan. This summary is qualified in its
entirety by reference to the full text of the Plan, a copy of which
can be obtained from the Company.
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How the Plan Works
You may join the Plan by completing a Contract Payment
Deduction Authorization Form which indicates the percentage you want
deducted from each contract payment. WLR Foods will use the amount
deducted from your payment to purchase Common Stock of WLR Foods.
Shares purchased for you will be credited to your account, and you
will receive a statement reflecting your share balance every quarter.
How to Participate
If you are a poultry producer having a current grower
contract with WLR Foods or its subsidiary, Wampler-Longacre, Inc., you
may enroll in the Plan by completing and returning to the accounting
department for your division the following two forms:
Contract Payment Deduction Authorization Form indicating the
percentage you want deducted from each contract payment.
The maximum amount of stock that may be purchased pursuant
to the Plan in any calendar year is $25,000, valued at fair
market value, exclusive of any discount. If you are also a
participant in the Company's Employee Stock Purchase Plan,
both plans will be combined for purposes of the $25,000
limitation.
Substitute IRS W-9 Form certifying that you are not subject
to backup withholding under the provisions of the Internal
Revenue Code
All accounts will be maintained in the name in which you
have contracted with WLR Foods or Wampler-Longacre, Inc.
Stock Purchases
During each Investment Period or on each Investment Date
(both of which are defined below), as the case may be, all funds
available in your account through contract payment withholdings and
dividends accumulated through the last Friday of the preceding
calendar month will be used to purchase Common Stock of WLR Foods.
The number of shares that will be purchased on your behalf, calculated
to five (5) decimal places, will be determined by dividing the amount
of funds invested on your behalf by a percentage of the current market
price of the shares. The percentage to be applied to the market price
in determining the number of shares purchased on your behalf, as well
as your purchase price, will be set by the Company from time to time,
but in no event will be less than eighty-five percent (85%). If
shares are purchased directly from the company they will be purchased
on the Investment Date, which is the first Friday of the calendar
month. If shares are purchased on the open market, they will be
purchased during the Investment Period, which is the period beginning
on the Investment Date and ending five (5) trading days later.
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Purchase Price
WLR Foods will have sole discretion as to whether Common
Stock purchased under the Plan will be purchased in the open market by
an Independent Agent or purchased directly from WLR Foods. The
Administrator will notify the Independent Agent prior to the
commencement of the Investment Period with respect to each Investment
Date if shares for the Plan will be purchased in the open market.
If Common Stock is purchased in the open market, the price
per share paid by the Participant will be a percentage, but not less
than eighty-five percent (85%), of the weighted average price,
excluding brokerage commissions, paid by the Independent Agent for all
shares purchased during the Investment Period for the applicable
Investment Date. All open market purchases will be the lowest current
independent offer quotation reported on NASDAQ/NMS, and WLR Foods will
pay the difference between the Independent Agent's purchase price and
your discounted purchase price, and will also pay any administrative
costs, brokerage fees and commissions. If Common Stock is purchased
directly from WLR Foods, the price per share will be a percentage, but
not less than eighty-five percent (85%), of the average of the best
bid and asked price of the Common Stock as quoted by NASDAQ/NMS on the
applicable Investment Date. If shares are purchased both in the open
market and directly from WLR Foods with respect to an Investment Date,
the price paid by Participants for the shares so purchased will be a
percentage, but not less than eighty-five percent (85%), of the
weighted average price of all shares.
Dividend Reinvestment
IF WLR Foods declares dividends on its Common Stock, your
account will be credited with all stock and cash dividends you earn
and any stock splits. Consistent with the Plan's purpose of
encouraging systematic accumulation of WLR Foods' stock, all dividends
will be automatically reinvested in additional shares of WLR Foods'
stock.
Changing or Suspending Your Deduction
You may change the amount of your contract payment deduction
by completing a new Contract Payment Deduction Authorization Form.
You may suspend contract payment deductions and still remain a Plan
member as long as at least one share of WLR Foods' Common Stock is
kept in your account. There currently is no waiting period after
suspension for re-activating contract payment deductions -- you may do
so at any time. However, this flexibility may be restricted in the
future depending on the Company's experience. Enrollment, changes in
contract payment deduction amounts and suspension of deductions will
be effected as soon as administratively feasible following receipt of
your written instructions.
Holding Period
Stock purchased pursuant to the Plan may not be withdrawn,
or certificates issued, for two (2) years after the date the stock was
purchased, except in the event your contract with the Company is
terminated by the Company for any reason, or in the
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event of your death or disability. Shares credited to your account as
a result of a stock split or stock dividend will be treated as having
been purchased on the purchase date of the shares to which they
relate.
Stock Certificates
Subject to the two (2) year holding period described above,
at your request, a stock certificate will be issued from the Plan to
you for any or all full shares of WLR Foods' Common Stock in your
account. As long as any shares of stock remain in your account,
automatic reinvestment of dividends on such stock will continue. When
your account is closed, you will be issued a stock certificate for all
full shares of stock in your account and will receive a check for the
value of any fraction of a share in your account. If less than a full
share of stock remains in your account and you have suspended contract
payment deductions, your account will be closed.
If you would like to sell stock in the Plan, you must
request a stock certificate and sell the stock yourself, either
privately or through a broker. WLR Foods can provide you with a list
of brokers in your area who will assist you with your sale.
Termination of Contract
Upon termination of your contract by the Company for any
reason, or upon your death or disability, your account will be
terminated. Upon termination, any funds held for investment in your
account will be invested on your behalf on the next Investment Date or
during the next Investment Period. You will then be issued a stock
certificate for all full shares of stock in your account and will
receive a check for the value of any fraction of a share in your
account.
Shareholder Communications
As a shareholder, you will receive all notices of
shareholders' meetings, proxy statements and other materials
distributed by WLR Foods to its shareholders. You will have all
rights of a shareholder, including voting rights, as soon as there are
shares of stock credited to your account. The Administrator will not
vote stock held in your account.
Duration of Plan
One and one-half million shares have been registered for
issuance under the Plan, the term of which is indefinite. WLR Foods
may amend or terminate the Plan at any time, and you would be provided
notice in such event. No amendment or termination would affect your
interestin thePlanwhich hadaccruedprior tosuchamendment ortermination.
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A Few More Details
Q: What is common stock:
A. Common stock represents ownership in a company. Common stock
shareholders can benefit from cash or stock dividends, and they
receive the right to vote on certain issues. If a company is
profitable and its stock increases in value, shareholders also
benefit from price appreciation.
Q. What are the risks of owning stock? Can I lose money?
A. Common stock shareholders assume both financial risk and market
risk. The financial risk is that the company will not perform
well, and thus the stock will decline in price. The market risk
is the risk of price fluctuations for the entire market or a
specific industry group. The price at which you sell your stock
may be equal to, above or below the cost of your stock.
The poultry industry's profitability has followed cyclical
patterns which have been principally influenced by the supply of
poultry. The poultry cycle is also influenced significantly by
feed costs that, in turn, are influenced by a number of factors
unrelated to the poultry industry, including weather and
government legislation that permits the federal government to set
price and income supports for grain, the largest production
expense for poultry.
Q. What are the advantages of buying stock through the Poultry
Producer Stock Purchase Plan?
A. The Plan offers a convenient way to purchase shares of common
stock in WLR Foods at a discount price, through periodic contract
payment deductions. In addition to allowing you to purchase
Common Stock at a reduced price, the Plan is also cost-effective
because you bear no brokerage commissions on shares purchased for
the Plan, nor are administrative costs passed on to you. Also,
because the Plan purchases fractional shares for your account,
the full amount deducted from your contract payment will be used
to purchase stock.
Q. Can I buy additional shares?
A. You can buy additional shares, up to $25,000 worth per year, only
by increasing your contract payment deduction. If you would like
to acquire more shares than you are able to purchase under the
Plan because of the Plan's $25,000 limitation, ask WLR Foods'
Director of Shareholder Services about WLR Foods' Dividend
Reinvestment and Stock Purchase Plan.
Q. Can I make additional voluntary contributions?
A. You may not make voluntary contributions to the Plan, but can
only participate through periodic contract payment deductions.
If you want to purchase additional shares, you may increase your
contract payment deduction, subject to the $25,000 limitation, or
you may participate in certain other WLR Foods plans.
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Q. Can I use my stock as collateral for a loan?
A: You my not assign or pledge your interest in the Plan.
Q: How does the Plan affect my taxes:
A: Unlike the Company's Employee Stock Purchase Plan, the Plan does
not satisfy the requirements of Section 423 of the Internal
Revenue Code and, as such, is not a "tax qualified plan." Under
the Internal Revenue Code, the benefits of a tax qualified plan
under that section are not available to independent contractors
such as the Company's poultry producers. Each individuals' tax
situation differs, so you are encouraged to consult a tax
adviser.
In general, you must recognize ordinary compensation income equal
to the amount of your discount when the stock is purchased on
your behalf. Also, brokerage commissions paid by WLR Foods on
your behalf must be reported as income. The amount of
compensation income you are required to recognize will be added
to the price you paid for the stock to determine your tax basis.
Any gain or loss on your stock, being the difference between the
price for which you sell the stock and your tax basis, must be
reported as capital gain on your tax return when you sell your
stock. Cash dividends are taxable when received, even if they
are reinvested, while stock dividends or stock splits have no
immediate tax effect. WLR Foods will send you annually an
Internal Revenue Service Form 1099-MISC reporting the amount of
the discount and brokerage commissions, and Form 1099-DIV
reporting dividends paid and reinvested on shares in your
account.
Q. Who administers the Plan?
A. WLR Foods' Director of Shareholder Services Department of WLR
Foods administers the Plan for WLR Foods. The Administrator
keeps a continuing record of your account, sends quarterly
Statements of Accounts, and performs other duties related to the
Plan. The Administrator is hired, and serves at the discretion
of, WLR Foods' executive management.
USE OF PROCEEDS
WLR Foods does not know the number of shares that will
ultimately be purchased under the Plan or the prices at which such
shares will be purchased. The net proceeds realized by WLR Foods from
shares of Common Stock sold from time to time under the Plan will be
added to the general funds of the Company and used for general
corporate purposes.
LEGAL OPINION
The validity of the Common Stock offered hereby will be
passed upon for the Company by the law firm of Wharton, Aldhizer &
Weaver, Harrisonburg, Virginia. As of the date of this Prospectus,
members of the firm beneficially owned, in the aggregate, 1,851 shares
of the Company's Common Stock.
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EXPERTS
The consolidated financial statements and schedules of the
Company and its subsidiaries which are included in the Company's
Annual Report on Form 10-K for the fiscal year ended July 2, 1994 have
been incorporated by reference herein in reliance upon the reports of
KPMG Peat Marwick, LLP, independent certified public accountants,
incorporated by reference herein, and upon the authority of that firm
as experts in accounting and auditing. To the extent that KPMG Peat
Marwick, LLP audits and reports on the consolidated financial
statements and schedules of the Company and its subsidiaries issued at
future dates, and consents to the use of their reports thereon, such
consolidated financial statements and schedules also will be
incorporated by reference in this Prospectus in reliance upon their
reports and upon said authority of such firm as experts in accounting
and auditing.
INDEMNIFICATION
In 1988, WLR Foods' shareholders approved changes to the
Company's Bylaws, which changes afforded the Company's officers and
directors the fullest liability protection available under Virginia
law. Specifically, in any proceeding brought against WLR Foods'
officers or directors by a shareholder in the right of the Company, or
brought by or on behalf of shareholders of the Company, monetary
damages awarded against the officers or directors are limited to $1;
provided, however, that this cap will not apply if the officer or
director engaged in willful misconduct or a knowing violation of
criminal law or of any federal or state securities law.
WLR Foods' Bylaws indemnify the Company's officers and
directors against all liabilities and expenses arising out of
proceedings against them, except liabilities and expenses incurred
because of their willful misconduct or knowing violation of the
criminal law. The Company is also required to advance expenses of any
officer or director in proceedings against them.
WLR presently maintains an officer and director liability
insurance policy in the amount of $10 million, with a deductible of
$100,000 for corporate reimbursement only. The policy insures WLR
Foods against loss by reason of wrongful acts by its officers and
directors which WLR must indemnify, and it insures the officers and
directors against loss by reason of their wrongful acts committed
while serving WLR.
Insofar as indemnification for liability arising under the
Securities Act of 1933 may be permitted to officers, directors or
persons controlling WLR pursuant to the foregoing provisions, WLR has
been informed 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.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Itemized Statement of Expenses.
The table below sets forth the estimated expenses (except
the SEC registration fee, which is an actual expense) in connection
with the offer and sale of the shares of Common Stock of the
Registrant covered by this Registration Statement.
SEC registration fee $13,190
Printing costs $ 1,000
Fees and expenses of counsel $ 5,000
for the Company
Total $19,190
Item 15. Indemnification of Directors and Officers
In 1988, WLR Foods' shareholders approved changes to the
Company's Bylaws, which changes afforded the Company's officers and
directors the fullest liability protection available under Virginia
law. Specifically, in an proceeding brought against WLR Food'
officers or directors by a shareholder in the right of the Company, or
brought by or on behalf of shareholders of the company, monetary
damages awarded against the officers or directors are limited to $1;
provided, however, that this cap will not apply if the officer or
director engaged in willful misconduct or a knowing violation of
criminal law or of any federal or state securities law.
WLR Foods' Bylaws indemnify the Company's officers and
directors against all liabilities and expenses arising out of
proceedings against them, except liabilities and expenses incurred
because of their willful misconduct or knowing violation of the
criminal law. The Company is also required to advance expenses of any
officer or director in proceedings against them.
WLR presently maintains an officer and director liability
insurance policy in the amount of $10 million, with a deductible of
$100,000 for corporate reimbursement only. The policy insures WLR
Foods against loss by reason of wrongful acts by its officers and
directors which WLR must indemnify, and it insures the officers and
directors against loss by reason of their willful acts committed while
serving WLR.
Insofar as indemnification for liability arising under the
Securities Act of 1933 may be permitted to officers, directors or
persons controlling WLR pursuant to the foregoing provisions, WLR has
been informed 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
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against public policy as expressed in the Act and will be governed by
the final adjudication of such issue.
Item 16. Exhibits.
3.1 Articles of Incorporation (incorporated by reference to
Exhibit 3 of Form 8-K filed with the Securities
Exchange Commission on January 31, 1992)
3.2 Bylaws
3.3 Form of Common Stock Certificate (incorporated by
reference to Exhibit 4 to Form 10-K filed September 27,
1991 (File No. 0-17070)).
5 Opinion and Consent of Wharton, Aldhizer & Weaver
23.1 Consent of KPMG, LLP Peat Marwick
23.2 Consent of Wharton, Aldhizer & Weaver (see Exhibit 5)
24 Power of Attorney
Item 17. Undertakings.
(a) The undersigned 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.
(iii) 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.
Provided, however, that paragraphs (a)(1)(i) and
(a)(1)(ii) do not apply if the registration statement
is on Form S-3 or Form S-8, and the information
required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports
filed by the registrant pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934
that are
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incorporated by reference 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.
(b) The undersigned registrant hereby undertakes that, for
the purposes of determining any liability under the
Securities Act of 1933, each filing of registrant's
annual report pursuant to Section 13(a) or
Section 15(d) of the Securities Exchange Act of 1934
(and, where applicable, each filing of an employee
benefit plan's annual report pursuant to Section 15(d)
of the Securities Exchange Act of 1934) that is
incorporated by reference in the 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.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
the registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-3 and has
duly caused this registration statement to be signed on its behalf by
the undersigned, thereunto duly authorized in the City of
Harrisonburg, Commonwealth of Virginia, on the ______ day of
_______________________, 1994.
WLR FOODS, INC.
By:__/s/ James L. Keeler_____
James L. Keeler
President and Chief
Executive Officer
Pursuant to the requirements of the Securities Act of 1933,
this Registration Statement has been signed by the following persons
in the capacities indicated as of the _____ day of _________________,
1994.
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Signature Title
_______________________________________ Treasurer and
Delbert L. Seitz Chief Financial
Officer
_______________________________________ Chief Executive
James L. Keeler Officer and
Director
_______________________________________ Director
George E. Bryan*
_______________________________________ Director
Charles L. Campbell*
_______________________________________ Director
Stephen W. Custer*
_______________________________________ Director
Calvin G. Germroth*
_______________________________________ Director
Peter A.W. Green*
_______________________________________ Director
William H. Groseclose*
_______________________________________ Director
J. Craig Hott*
_______________________________________ Director
Herman D. Mason*
_______________________________________ Director
Charles W. Wampler, Jr.*
_______________________________________ Director
William D. Wampler*
*By_/s/ Delbert L. Seitz_______________
Delbert L. Seitz, Power of Attorney
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INDEX TO EXHIBITS
Exhibit Page
3.1 Articles of Incorporation (incorporated by
reference to Exhibit 3 of Form 8-K filed
with the Securities Exchange Commission on
January 31, 1992)
3.2 Bylaws 15
3.3 Form of Common Stock Certificate (incorporated
by reference to Exhibit 4 to Form 10-K filed
September 27, 1991 (File No. 0-17060))
5 Opinion and Consent of Wharton, Aldhizer & Weaver 26
23.1 Consent of KPMG, LLP Peat Marwick 27
23.2 Consent of Wharton, Aldhizer & Weaver (see Exhibit 5)
24 Power of Attorney 28
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Exhibit 3.2
BYLAWS
OF
WLR FOODS, INC.
ARTICLE I
Shareholders
Section 1. Place of Meetings. All meetings of the shareholders
shall be held at such place as may be designated in writing by the
Board of Directors.
Section 2. Voting. Shareholders shall be entitled to vote at
meetings of the shareholders in person or by proxy. If by proxy, such
proxy shall be appointed by an instrument in writing, subscribed by
the shareholder or by his duly authorized attorney. A shareholder
shall be entitled to one vote for each share of stock entitled to vote
registered in his name on the books of the Corporation.
Section 3. Quorum. Shares entitled to vote as a separate voting
group may take action on a matter at a meeting only if a quorum of
those shares exists with respect to that matter. A majority of the
votes entitled to be cast on the matter by the voting group
constitutes a quorum of that voting group for action on that matter.
Section 4. Adjournment of Meetings. If less than a quorum shall
be in attendance at the shareholders' meeting, the meeting shall be
adjourned from time to time by a majority vote of the shareholders
entitled to vote present or represented by proxy until a quorum shall
attend. Any meeting at which a quorum is present may also be
adjourned in like manner for such time upon such call as may be
determined by the shareholders entitled to vote present in person or
by proxy at such meetings. At any adjourned meeting at which a quorum
is present, any business may be transacted which might have been
transacted if the meeting had been held as originally called.
Section 5. Annual Election of Directors. The annual meeting of
the shareholders for the election of directors and the transaction of
other business shall be held in October of each year, the date and
time of such meeting to be fixed from time to time by resolution of
the Board of Directors.
Section 6. Special Meetings - How Called. Special meetings of
the shareholders shall be held upon the call of the Chairman of the
Board, the President, or the Board of Directors.
Section 7. Inspectors of Election. (a) In advance of any
meeting of the shareholders of the Corporation, the Board may appoint
inspectors of election, who may be officers or employees, but not
directors, of the Company, to act at the meeting and any adjournment
thereof. If inspectors of election are not so appointed, or if any
person so appointed fails to appear or refuses to act, the chairman of
any meeting of shareholders may appoint at the meeting inspectors of
election or persons to replace those who so fail or refuse to act.
The number of inspectors shall be three (3).
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(b) The inspectors of election shall determine the number of
shares outstanding and the voting power of each, the shares
represented at the meeting, the existence of a quorum, and the
authenticity, validity and effect of proxies; they shall receive
votes, ballots or consents and shall hear and determine all challenges
and questions if any may arise in connection with the right to vote;
they shall count and tabulate all votes or consents, determine when
the polls shall close, and determine the result; and they shall do
such acts as may be proper to conduct the election or vote with
fairness to all shareholders.
(c) The inspectors of election shall perform their duties
impartially, in good faith, to the best of their ability, and as
expeditiously as is practical. The decision, act or certificate of a
majority of the inspectors is effective in all respects as the
decision, act or certificate of all. Any report or certificate made
by the inspectors of election is prima facie evidence of the facts
stated therein.
Section 8. Organization. The Chairman of the Board of
Directors, or such other officer or board member as the Board of
Directors may designate, shall preside at each meeting of
shareholders. The Secretary or an Assistant Secretary shall act as
secretary of the meeting and keep a record of the proceedings thereof.
The Board of Directors of the Corporation shall be entitled to make
such rules or regulations for the conduct of meetings of shareholders
as it shall deem necessary, appropriate or convenient. Subject to
such rules and regulations of the Board of Directors, if any, the
chairman of the meeting shall have the right and authority to
prescribe such rules, regulations and procedures, and to do all such
acts as, in the judgment of such chairman, are necessary, appropriate
or convenient for the proper conduct of the meeting, including,
without limitation, establishing an agenda or order of business for
the meeting, establishing rules and procedures for maintaining order
at the meeting and the safety of those present, limiting the
participation in such meeting to shareholders of record of the
Corporation and their duly authorized and constituted proxies, and
such other persons as the chairman shall permit, restricting entry to
the meeting after the time fixed for the commencement thereof,
limiting the time allotted to questions or comments by participants,
and regulating the opening and closing of the polls for balloting on
matters which are to be voted on by ballot. Unless, and to the
extent, determined by the Board of Directors or the chairman of the
meeting, meetings of shareholders shall not be required to be held in
accordance with rules of parliamentary procedure.
Section 9. Record Date for Special Meeting. For purposes of
setting the record date for determination of the holders of common
stock of the Corporation entitled to vote at any special meeting of
shareholders called pursuant to the provisions of the Virginia Control
Share Acquisition Act (the Act), the record date shall be the date on
which the Acquiring Person (as defined by the Act) requests such
shareholders' meeting pursuant to Va. Code Section 13.1-728.5.
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ARTICLE II
Directors
Section 1. Board of Directors. The Board of Directors shall
have power to manage and administer the business and affairs of the
Corporation. Except as expressly limited by law, all corporate powers
of the Corporation shall be vested in and may be exercised by the
Board of Directors.
Section 2. Number. The Board shall consist of not less than ten
(10) nor more than twelve (12) directors, the exact number within such
minimum and maximum to be fixed and determined by the Board of
Directors or the shareholders.
Section 3. Retirement. No person shall be eligible for election
to the Board of Directors after his 72nd birthday. The provision of
this Section shall not apply to those directors on the Board of
Directors as of January 1, 1989.
Section 4. Notification of Nominations. Nominations for the
election of directors may be made by the Board of Directors or by any
shareholder entitled to vote for the election of directors. Any
shareholder entitled to vote for the election of directors at a
meeting may nominate persons for election as directors only if written
notice of such shareholder's intent to make such nomination is given,
either by personal delivery or by United States mail, postage prepaid,
to the Secretary of the Corporation not later than (i) with respect to
an election to be held at an annual meeting of shareholders, 90 days
in advance of such meeting, and (ii) with respect to an election to be
held at a special meeting of shareholders for the election of
directors, the close of business on the seventh day following the date
on which notice of such meeting is first given to shareholders. Each
such notice shall set forth the name and address of the shareholder
who intends to make the nomination and of the person or persons to be
nominated, a representation that such shareholder is a holder of
record of stock of the Corporation entitled to vote at such meeting
and intends to appear in person or by proxy at the meeting to nominate
the person or persons specified in the notice, a description of all
arrangements or understandings between such shareholder and each
nominee and any other person or persons specified in the notice, a
description of all arrangements or understandings between such
shareholder and each nominee and any other person or persons (naming
such person or persons) pursuant to which the nomination or
nominations are to be made by such shareholder, such other information
regarding each nominee proposed by such shareholder as would have been
required to be included in a proxy statement filed pursuant to the
proxy rules of the Securities and Exchange Commission had each nominee
been nominated, or intended to be nominated, by the Board of
Directors, and the consent of each nominee to serve as a director of
the Corporation if so elected. The chairman of a shareholders'
meeting may refuse to acknowledge the nomination of any person not
made in compliance with the foregoing procedure.
Section 5. Regular Meeting, Election of Officers. A regular
meeting of the Board of Directors shall be held immediately following
each annual meeting of the shareholders of the Corporation at the same
place such shareholders' meeting is held. No notice thereof shall be
required. At such meeting, the
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directors shall elect a President and a Secretary and may elect a
Chief Executive Officer, a Chief Operating Officer, a Chief Financial
Officer, one or more Vice Presidents, an Assistant Secretary, a
Treasurer, and such other officers as the Board may decide, and may
transact such other business as shall properly come before the
meeting, including the election of directors to committees of the
Board of Directors. Unless sooner removed, such officers shall hold
office until the next annual election of officers, and until their
successors shall have been elected and have qualified.
Section 6. Special Meetings, How Called, Notice. Special
meetings of the Board of Directors shall be held upon notice by
word-of-mouth, letter, facsimile communication, or cable delivered not
later than twenty-four (24) hours preceding the time for the meeting
upon call of the Chairman of the Board, President or Secretary, and
upon call by the Secretary upon the written request of any four (4)
directors. Notice of any such meeting may be waived in writing signed
by the persons entitled to notice whether before or after the meeting.
Neither the business to be transacted at, nor the purpose of, any
special meeting need be specified in the notice or waiver of notice of
the meeting.
Section 7. Quorum. A majority of the Board of Directors shall
constitute a quorum for the transaction of business.
Section 8. Consents. Any and all notices herein required,
including the time and place of the meeting and the nature of the
business to be transacted, may be waived by written instrument
executed by all the directors. Further, any action by the directors
of the Corporation may be taken without a meeting by the unanimous
written consent of all of the directors.
Section 9. Committees. The Board of Directors may, by
resolution adopted by a majority of the Board of Directors, create one
or more committees of the Board of Directors and elect members of the
Board of Directors to serve on them at the pleasure of the Board of
Directors. To the extent specified by the Board of Directors or these
Bylaws, each committee may exercise the authority of the Board of
Directors to the extent permitted by law.
Section 10. Officers of the Board. By resolution adopted by a
majority of the Board of Directors, the Board of Directors may create
such offices of the Board, including Chairman of the Board and Vice
Chairman of the Board, as it deems appropriate for the carrying out of
Board functions and assignments, to serve at the pleasure of the
Board. Such persons are not, nor shall they by virtue of their
service to the Board be deemed to be, officers of the Corporation as
defined in Section 1, Article VII herein.
Section 11. Chairman of the Board. The Chairman of the Board
shall preside at all meetings of the Board of Directors, and shall
approve the minutes of all meetings at which he presides. He shall
have concurrent power, along with the President, and Chief Executive
Officer, to call or cause to be called all meetings of the Board of
Directors, and shall be an ex officio member of all committees of the
Board of Directors. He shall also serve the Corporation in an
advisory capacity and perform such other duties as may be assigned to
him by the Board of Directors.
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Section 12. Vice Chairman of the Board. The Vice Chairman of
the Board shall have concurrent power with the Chairman and shall
preside at all meetings of the Board of Directors in the absence of
the Chairman of the Board.
ARTICLE III
Executive Committee
Section 1. Qualifications, Elections. The Board of Directors
may elect from its number an Executive Committee composed entirely of
members of the Board of Directors. The Chief Executive Officer, and
the Chief Operating Officer, provided such officers are Board members,
shall be members by virtue of their office with the Corporation.
Section 2. Powers and Duties. During the intervals between the
Board of Directors' meetings, the Executive Committee shall possess,
and may exercise, all the powers of the Board of Directors in the
management of the affairs of the Corporation. The Executive Committee
shall keep minutes of the proceedings of its meetings to be submitted
to the Board of Directors for its approval.
ARTICLE IV
Audit Committee
Section 1. Qualifications, Elections. The Board of Directors
shall elect from its number an Audit Committee composed entirely of
members of the Board of Directors. A majority of the Audit Committee
shall be comprised of independent directors of the Board of Directors.
Section 2. Powers and Duties. The Audit Committee shall
recommend to the Board of Directors the independent audit firm to be
employed by the Corporation to examine and report on the financial
statements issued by the Corporation; shall meet with the independent
auditor to discuss pertinent matters including quality of management,
financial, accounting and internal audit procedures; may establish an
internal audit department and thereafter periodically review its
functions and its personnel to assure effectiveness, independence and
competence; and may direct special investigations into significant
matters brought to the Audit Committee's attention within the scope
of its duties. The Audit Committee also shall monitor the
Corporation's compliance with the applicable requirements of the
National Association of Securities Dealers, Inc. relating to
independent directors and shall conduct an appropriate review of all
related party transactions and potential conflicts of interest
relating to the directors, as required by the National Association of
Securities Dealers, Inc., on at least an annual basis, and shall
recommend to the Board of Directors such action as it deems
appropriate if it determines that an impermissible relationship or
interest exists.
ARTICLE V
Nominating Committee
Section 1. Qualifications, Elections. The Board of Directors
may elect from its number a Nominating Committee composed entirely of
members of the Board of Directors.
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Section 2. Powers and Duties. The Nominating Committee shall
propose to the Board of Directors a slate of nominees for the Board of
Directors to consider in recommending to the Corporation's
shareholders persons to be elected at the annual meeting of
shareholders to the Board of Directors, which slate shall consist of
at least two independent directors; shall propose to the Board of
Directors nominees who meet criteria for Board membership to fill
vacancies on the Board as they occur; and shall propose to the Board
of Directors for Board approval director nominees for appointment to,
and the filling of vacancies on, committees of the Board of Directors.
ARTICLE VI
Executive Compensation Committee
Section 1. Qualifications, Elections. The Board of Directors
may elect from its number an Executive Compensation Committee composed
entirely of members of the Board of Directors.
Section 2. Powers and Duties. The Executive Compensation
Committee shall determine the annual salary, bonus and other benefits,
direct and indirect, of the Chief Executive Officer and shall make
grants pursuant to the Corporation's Long Term Incentive Plan.
ARTICLE VII
Officers
Section 1. General. The officers of the Corporation shall
consist of a President and a Secretary, and may consist of a Chief
Executive Officer, Chief Operating Officer, Chief Financial Officer,
one or more Vice Presidents, Assistant Secretary, Treasurer, and such
other officers as the Board may decide. One person may hold more than
one office.
Section 2. President. The President of the Corporation shall
have concurrent power, along with the Chairman of the Board and Chief
Executive Officer, to call or cause to be called all meetings of the
Board of Directors. He shall be an ex officio member of all
committees of the Board of Directors. He shall also preside at all
meetings of the Board of Directors in the absence of the Chairman or
Vice Chairman of the Board. He shall make and sign contracts and
instruments in the name and on behalf of the Corporation, including
checks,drafts, notes and orders for the payment of money, subject to
the approval of the Board of Directors, make reports to the
shareholders and directors, and perform all such other duties as are
incident to his office or which may properly be required of him by the
Board of Directors.
Section 3. Chief Executive Officer. The Chief Executive Officer
shall give counsel and advice as may be deemed essential for the best
interest of the Corporation. He shall have concurrent power, along
with the Chairman of the Board and President, to call or cause to be
called all meetings of the Board of Directors. He shall be
responsible for all administration of the business and affairs of the
Corporation. He shall make and sign contracts and instruments in the
name and on behalf of the Corporation, including checks, drafts, notes
and orders for the payment of money, subject to the approval of the
Board of Directors, make reports to the shareholders and directors,
and perform all such other duties as
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are incident to his office of which may properly be required of him by
the Board of Directors.
Section 4. Chief Operating Officer. The Chief Operating Officer
shall give counsel and advice as may be deemed essential for the best
interest of the Corporation. He shall effect active supervision over
the operations of the business. He shall perform all other duties as
may be assigned to him by the Board of Directors or Chief Executive
Officer.
Section 5. Chief Financial Officer. The Chief Financial Officer
shall give counsel and advice as may be deemed essential for the best
interest of the Corporation. He shall be responsible for the fair
presentation of financial statements of the Corporation. He shall
supervise the controllers of the subsidiary corporations. He shall
perform all other duties as may be assigned to him by the Board of
Directors or Chief Executive Officer.
Section 6. Vice Presidents. Each Vice President shall perform
such duties as may be assigned to him by the Board of Directors.
Section 7. Secretary. The Secretary shall give, or cause to be
given, notice of all meetings of shareholders and the Board of
Directors, and all other notices required by law or by these Bylaws,
or by the Board of Directors. He shall record the proceedings of the
meetings of the shareholders and the Board of Directors in a book to
be kept for that purpose, and shall perform such other duties as may
be assigned to him by the Board of Directors, President or Chief
Executive Officer. He shall sign the stock certificates of the
Corporation, and shall keep a current register of the names and
addresses of the shareholders. He shall be the custodian of the
corporate seal, the stock certificate book, minute book and all other
records of the Corporation, other than those hereinafter delegated to
the care and custody of the Treasurer, and shall affix and attest the
corporate seal to any certificate or writing of the Corporation
requiring the same. The Secretary may, but shall not be required to,
guarantee the signatures of endorsers of the Corporation's stock
pursuant to Va. Code Section 8.8-312(1) (Supp. 1989), as amended.
Section 8. Assistant Secretary. The Assistant Secretary shall
be vested with all of the powers and perform all of the duties of the
Secretary in the absence of the Secretary. He shall also perform
such other duties as may be prescribed by the Board of Directors.
Section 9. Treasurer. The Treasurer shall have the custody of,
and be responsible for, the funds and securities of the Corporation.
He shall receive and give, or cause to be given, receipts and
acquittances for monies paid to the Corporation, pay out funds of the
Corporation, and keep full and accurate records and books of account
showing his transactions, which records and books of account he shall
exhibit to any shareholder or director upon request therefor. He shall
also perform such other duties as may be required of him by the Board
of Directors.
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ARTICLE VIII
Capital Stock
Section 1. Issue of Certificates of Stock. The Corporation
shall cause to be issued to each shareholder one or more certificates
under the seal or its facsimile of the Corporation, signed by the
President, Chairman of the Board, Chief Executive Officer, Chief
Operating Officer, Vice Chairman of the Board or Executive Vice
President and Secretary or Assistant Secretary, which signatures may
be by facsimile, certifying the number of shares owned by the
shareholders. All references in these Bylaws to an officer's
signature of the Corporation's stock certificates shall be deemed to
permit signature by facsimile.
Section 2. Transfer of Shares. The shares of the Corporation
shall be transferable only on its books. Transfers of stock shall be
made upon the corporate records only when an old or previously issued
certificate shall have been surrendered for cancellation, whereupon it
shall be marked CANCELLED by the Secretary, with the date of such
cancellation, before a new certificate is issued therefor.
Section 3. Distributions. To the extent consistent with the
Corporation's Articles of Incorporation and these Bylaws, the
provisions of Title 13.1, Chapter 9, Article VII of the Code of
Virginia of 1950, as amended, shall apply to any distributions with
respect to the Corporation's shares, as well as any other matters
respecting such shares.
Section 4. Lost Certificates. In case any certificate for the
capital stock of the Corporation shall be lost, stolen or destroyed,
the Corporation may require such proof of the fact, such indemnity to
be given to it and to its Transfer Agent and Registrar, and payment of
reasonable fees incurred, as shall be deemed necessary or advisable by
it.
Section 5. Holder of Record. The Corporation shall be entitled
to treat the holder of record of any share or shares of stock as the
holder thereof in fact and shall not be bound to recognize any
equitable or other claim to or interest in such shares on the part of
any other person, whether or not it shall have express or other notice
thereof, except as otherwise expressly provided by law.
Section 6. Closing of Books. The Board of Directors may fix in
advance a date, not exceeding seventy (70) days preceding the date of
any meeting of the shareholders, or the date for payment of any
dividend or the date for allotment of rights, or the date when any
change or conversion or exchange of capital stock shall go into
effect, as a record date for the determination of the shareholders
entitled to notice of and to vote at any such meeting, or entitled to
receive payment of any such dividends, or any such allotment of
rights, or to exercise the rights in respect to any such change,
conversion or exchange of capital stock, and in such case only
shareholders of record on the dates so fixed shall be entitled to such
notice of and to vote at such meeting, or to receive payment of such
dividend or allotment of rights, or exercise such rights, as the case
may be, notwithstanding any transfer of any stock on the books of the
Corporation after any such record date fixed as herein provided.
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ARTICLE IX
Limitation of Liability and Indemnification
Section 1. Limitation or Elimination of Liability. To the full
extent that the Virginia Stock Corporation Act, as it exists on the
date hereof or may hereafter be amended, permits the limitation or
elimination of the liability of directors or officers, a director or
officer of the Corporation shall not be liable to the Corporation or
its shareholders for any monetary damages in excess of one dollar.
Section 2. Indemnification. The Corporation shall indemnify a
director or officer of the Corporation who is or was a party to any
proceeding by reason of the fact that he is or was such a director or
officer or is or was serving at the request of the Corporation as a
director, officer, partner, trustee, employee or agent of another
corporation, partnership, joint venture, trust, employee benefit plan
or other enterprise against all liabilities and expenses incurred in
the proceeding except such liabilities and expenses as are incurred
because of his willful misconduct or knowing violation of the criminal
law.
Section 3. Determination to Indemnify. Subject to the
provisions of Section 7 of this Article, a determination to indemnify
a director or officer under Section 2 of this Article shall be made,
in the first instance, by a majority vote of a quorum of the Board of
Directors, such quorum consisting of disinterested directors. If a
quorum of disinterested directors cannot be obtained, then the
determination shall be made by majority vote of a committee designated
by the Board of Directors (in which designation interested directors
may participate), the committee to consist solely of two or more
disinterested directors. If such a committee cannot be designated,
the determination shall be made by special legal counsel selected by a
majority vote of a quorum consisting of disinterested directors, or,
if the same cannot be obtained, by the committee described above. If
neither a quorum consisting of disinterested directors or the
committee described above can be obtained, the selection of special
legal counsel shall be made by majority vote of the Board of Directors
(in which selection interested directors may participate).
Notwithstanding any other provision of this Article, in any instance,
the determination to indemnify a director or officer may be made by
vote of the shareholders, except that any shares owned, or voted under
the control of, directors or officers who are parties to the
proceeding may not be voted.
Section 4. Advances and Reimbursements of Expenses. Once a
determination to indemnify has been made pursuant to the provisions
of Section 3 of this Article, the Corporation shall make advances for
expenses of, and reimbursements for expenses incurred by, any director
or officer in any proceeding described in Section 2 of this Article,
upon receipt of an undertaking from the director or officer to repay
the same if it is ultimately determined that he is not entitled to
indemnification. Such undertaking shall be an unlimited, unsecured
general obligation of the director or officer and shall be accepted
without reference to his ability to make repayment. The director or
officer also shall furnish the Corporation with a written statement of
his good faith belief that he has met the standard of conduct
described in Va. Code Section 13.1-697, as amended.
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Section 5. Indemnification of Agents and Employees. The Board
of Directors may cause the Corporation to indemnify and make advances
and reimbursements to any person not specified in Section 2 of this
Article who was or is a party to any proceeding by reason of the fact
that he is or was an employee or agent of the Corporation, or is or
was serving at the request of the Corporation as a director, officer,
partner, trustee, employee or agent of another corporation,
partnership, joint venture, trust, employee benefit plan or other
enterprise, to the same extent as if such person were specified as one
to whom indemnification is granted in Section 2. The provisions of
Section 2 through 4 of this Article shall be applicable to any
indemnification, determination, advancements and reimbursements
provided pursuant to this Section.
Section 6. Indemnification Insurance. The Corporation may
purchase and maintain insurance to indemnify it against the whole or
any portion of the liability assumed by it in accordance with this
Article, and also may procure insurance in such amounts as the Board
of Directors may determine on behalf of any person who is or was a
director, officer, employee or agent of the Corporation, or is or was
serving at the request of the Corporation as a director officer,
partner, trustee, employee or agent of another corporation,
partnership, joint venture, trust, employee benefit plan or other
enterprise, against liability asserted against or incurred by any such
person in any such capacity or arising from his status as such,
whether or not the Corporation would have power to indemnify him
against such liability under the provisions of this Article.
Section 7. Changes in the Board Composition. In the event there
has been a change in the composition of a majority of the Board of
Directors after the date of the alleged act or omission with respect
to which indemnification is claimed, any determination as to
indemnification, advancement or reimbursement of expenses with respect
to any claim for indemnification made pursuant to Sections 2 or 5 of
this Article shall be made by special legal counsel agreed upon by the
Board of Directors and the proposed indemnitee. If the Board of
Directors and the proposed indemnitee are unable to agree upon such
special legal counsel, the Board of Directors and the proposed
indemnitee each shall select a nominee, and the nominee shall select
such special legal counsel.
Section 8. Applicability of this Article. The provisions of
this Article shall be applicable to all actions, claims, suits or
proceedings commenced after the adoption hereof, whether arising from
any action taken or failure to act before or after such adoption. No
amendment, modification or repeals of this Article shall diminish the
rights provided hereby or diminish the right to indemnification with
respect to any claim, issue or matter in any then pending or
subsequent proceeding that is based in any material respect on any
alleged action or failure to act prior to such amendment, modification
or repeal. Reference herein to directors, officers, employees or
agents shall include former directors, officers, employees and agents
and their respective heirs, executors and administrators.
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ARTICLE X
Redemption Rights
To the full extent permitted by the Control Share Acquisition
Act, Article 14.1 of Title 13.1 of the Code of Virginia of 1950, as
amended, the Corporation is authorized to redeem shares acquired in a
control share acquisition, as that term is defined under the Control
Share Acquisition Act.
ARTICLE XI
Fiscal Year
The Board of Directors shall have power to fix, and, from time to
time, change, the fiscal year of the Corporation. Unless otherwise
fixed by the Board, the fiscal year shall end on the Saturday closest
to June 30th.
ARTICLE XII
Amendments
These Bylaws may be amended, in whole or in part, by a two-thirds
(2/3) vote of the Board of Directors, or by the holders of two-thirds
(2/3) of all shares entitled to vote by each voting group of the
shareholders of the Corporation, at any meeting of the Board of
Directors or of the shareholders, as the case may be, except that the
shareholder vote for Bylaw amendments that have been recommended to
the shareholders by a two-thirds (2/3) vote of the Board of Directors
shall require only a majority of all votes entitled to be cast by each
voting group. Bylaws made or amended by the Board of Directors may be
altered or repealed by the shareholders, but shall remain in effect
unless and until such action be taken by the shareholders.
ARTICLE XIII
Implied Amendments
Any action taken or authorized by the shareholders or by the
Board of Directors which would be inconsistent with the Bylaws then in
effect, but which is taken or authorized by the affirmative vote of
not less than that number of shares or the number of directors that
would be required to amend these Bylaws so that the Bylaws would be
consistent with such action, shall be given the same effect as if
these Bylaws had been temporarily amended or suspended to the extent
necessary to permit the specific action so taken or authorized.
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Exhibit 5
[Wharton, Aldhizer & Weaver Letterhead]
WLR Foods, Inc.
P. O. Box 7000
Broadway, VA 22815
Re: Poultry Producer Stock Purchase Plan Form S-3 Registration
Statement for WLR Foods, Inc.
Gentlemen:
We have acted as counsel for you in connection with the
preparation of the above-referenced document (the Registration
Statement) pursuant to the provisions of the Securities Act of 1933,
as amended, being filed with the Securities and Exchange Commission on
December 7, 1994, or as soon thereafter as possible, in respect of the
shares of WLR Foods, Inc. (WLR) common stock, no par value, which may
be issued pursuant to your Poultry Producer Stock Purchase Plan and,
as such, have examined the same and all of the exhibits being filed
therewith. We are generally familiar with your corporate affairs,
including your organization and the conduct of your corporate
proceedings relating thereto. We also have examined such of your
corporate records as we have deemed necessary as basis for this
opinion. Based on the foregoing, it is our opinion that:
1. WLR is a corporation duly organized, validly existing, and
in good standing under the laws of the Commonwealth of Virginia.
2. The 1,500,000 shares of WLR common stock, no par value,
which are the subject of the Registration Statement have been duly and
validly authorized and, when issued pursuant to the proper resolution
of the Board of Directors of WLR and upon the terms set forth in the
Registration Statement, will be legally issued, fully paid and non-
assessable.
The foregoing opinion is contingent upon the Registration
Statement becoming effective, and we consent to its use as an exhibit
therein and to the reference to this firm in the Prospectus and the
Registration Statement and any amendments thereto.
Very truly yours,
Wharton, Aldhizer & Weaver, P.L.C.
26
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Exhibit 23.1
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
The Board of Directors
WLR Foods, Inc.:
We consent to the use of our reports incorporated herein by reference
and to the reference to our firm under the heading "Experts" in this
prospectus.
KPMG PEAT MARWICK
Richmond, Virginia
December 6, 1994
27
<PAGE>
Exhibit 24
SPECIAL POWER OF ATTORNEY
Each of the undersigned officers and directors of WLR
Foods, Inc. (WLR Foods), a Virginia corporation, appoints
James L. Keeler and Delbert L. Seitz, or either of them (with
full power to each of them to act alone) as his or her attorneys-
in-fact and agents for him or her in such capacity either as an
officer or director, or both, of WLR Foods, and authorizes such
persons on behalf of WLR Foods, to sign and file any and all WLR
Foods' registration statements, reports, schedules and other
filings, and all amendments thereto, required or permitted to be
filed under federal or state securities laws, including without
limitation Forms 3, 4 and 5, registration statements, Form 10-K
annual reports, Form 10-Q quarterly reports and Form 8-K current
reports, with all exhibits and any and all documents required to
be filed with respect thereto, with the Securities and Exchange
Commission, National Association of Securities Dealers, and any
regulatory authority for any U.S. state or territory, and each of
us hereby ratifies and confirms all that our attorneys-in-fact
and agents or each of them may lawfully do or cause to be done by
virtue hereof.
WITNESS the following signatures and seals.
________________ __________________________(SEAL)
Date John J. Broaddus
________________ __________________________(SEAL)
Date Jane T. Brookshire
________________ __________________________(SEAL)
Date George E. Bryan
________________ __________________________(SEAL)
Date Charles L. Campbell
________________ __________________________(SEAL)
Date Stephen W. Custer
________________ __________________________(SEAL)
Date Calvin G. Germroth
________________ __________________________(SEAL)
Date William H. Groseclose
________________ __________________________(SEAL)
Date J. Craig Hott
________________ __________________________(SEAL)
Date Peter A.W. Green
________________ __________________________(SEAL)
Date Herman D. Mason
28
<PAGE>
________________ __________________________(SEAL)
Date Charles W. Wampler, Jr.
________________ __________________________(SEAL)
Date William D. Wampler
________________ __________________________(SEAL)
Date Henry L. Holler
________________ __________________________(SEAL)
Date Kenneth D. Marshall
________________ __________________________(SEAL)
Date James L. Keeler
________________ __________________________(SEAL)
Date James L. Mason
________________ __________________________(SEAL)
Date V. Eugene Misner
________________ __________________________(SEAL)
Date Delbert L. Seitz
29
