<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
----------------
SCHEDULE 13D
(Rule 13d-101)
UNDER THE SECURITIES EXCHANGE ACT OF 1934
(Amendment No. 4)
WLR FOODS, INC.
- --------------------------------------------------------------------------------
(Name of Issuer)
COMMON STOCK, NO PAR VALUE PER SHARE
- --------------------------------------------------------------------------------
(Title of Class of Securities)
929286 10 2
- --------------------------------------------------------------------------------
(CUSIP Number)
CUDDY FARMS, INC.
732 W. MARSHVILLE BLVD.
MARSHVILLE, NC 28103
ATTN: ROBERT B. CLARK
(704) 624-5055
- --------------------------------------------------------------------------------
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
JANUARY 17, 1997
- --------------------------------------------------------------------------------
(Date of Event Which Requires Filing of This Statement)
If the filing person has previously filed a statement on Schedule 13G
to report the acquisition which is the subject of this Schedule 13D, and is
filing this schedule because of Rule 13d-1(b)(3) or (4), check the following
box [ ].
Note: Six copies of this statement, including all exhibits, should be
filed with the Commission. See Rule 13d- 1(a) for other parties to whom copies
are to be sent.
(Continued on following pages.)
(Page 1 of 9 Pages)
<PAGE> 2
<TABLE>
<S> <C> <C>
================================================================================
CUSIP NO. 929286 10 2 13D Page 2 of 9 Pages
-----------
- --------------------------------------------------------------------------------
1 Name of Reporting Person: CUDDY FARMS, INC.
S.S. or I.R.S. Identification No. of Above Person:
- --------------------------------------------------------------------------------
2 Check the Appropriate Box if a Member of a Group* (a) [x]
(b) [ ]
- --------------------------------------------------------------------------------
3 SEC Use Only
- --------------------------------------------------------------------------------
4 Source of Funds*: OO
- --------------------------------------------------------------------------------
5 Check Box if Disclosure of Legal Proceedings is Required
pursuant to Item 2(d) or 2(e) [ ]
- --------------------------------------------------------------------------------
6 Citizenship or Place of Organization: NORTH CAROLINA,
UNITED STATES OF AMERICA
- --------------------------------------------------------------------------------
Number of 7 Sole Voting Power: 0
Shares
- --------------------------------------------------------------------------------
Beneficially 8 Shared Voting Power: 887,509
Owned By
- --------------------------------------------------------------------------------
Each 9 Sole Dispositive Power: 0
Reporting
- --------------------------------------------------------------------------------
Person With 10 Shared Dispositive Power: 887,509
- --------------------------------------------------------------------------------
11 Aggregate Amount Beneficially Owned by Each Reporting Person: 887,509
- --------------------------------------------------------------------------------
12 Check Box if the Aggregate Amount in Row (11)
Excludes Certain Shares* [ ]
- --------------------------------------------------------------------------------
13 Percent of Class Represented by Amount in Row (11): 5.3%
- --------------------------------------------------------------------------------
14 Type of Reporting Person*: CO
================================================================================
</TABLE>
* SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE> 3
<TABLE>
<S> <C> <C>
================================================================================
CUSIP NO. 929286 10 2 13D Page 3 of 9 Pages
-----------
- --------------------------------------------------------------------------------
1 Name of Reporting Person: A.M. CUDDY
S.S. or I.R.S. Identification No. of Above Person:
- --------------------------------------------------------------------------------
2 Check the Appropriate Box if a Member of a Group* (a) [x]
(b) [ ]
- --------------------------------------------------------------------------------
3 SEC Use Only
- --------------------------------------------------------------------------------
4 Source of Funds*: AF
- --------------------------------------------------------------------------------
5 Check Box if Disclosure of Legal Proceedings is Required
pursuant to Item 2(d) or 2(e) [ ]
- --------------------------------------------------------------------------------
6 Citizenship or Place of Organization: CANADA
- --------------------------------------------------------------------------------
Number of 7 Sole Voting Power: 0
Shares
- --------------------------------------------------------------------------------
Beneficially 8 Shared Voting Power: 887,510
Owned By
- --------------------------------------------------------------------------------
Each 9 Sole Dispositive Power: 0
Reporting
- --------------------------------------------------------------------------------
Person With 10 Shared Dispositive Power: 887,510
- --------------------------------------------------------------------------------
11 Aggregate Amount Beneficially Owned by Each Reporting Person: 887,510
- --------------------------------------------------------------------------------
12 Check Box if the Aggregate Amount in Row (11)
Excludes Certain Shares* [ ]
- --------------------------------------------------------------------------------
13 Percent of Class Represented by Amount in Row (11): 5.3%
- --------------------------------------------------------------------------------
14 Type of Reporting Person*: IN
================================================================================
</TABLE>
* SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE> 4
<TABLE>
<S> <C> <C>
================================================================================
CUSIP NO. 929286 10 2 13D Page 4 of 9 Pages
-----------
- --------------------------------------------------------------------------------
1 Name of Reporting Person: CUDDY INTERNATIONAL CORPORATION
S.S. or I.R.S. Identification No. of Above Person:
- --------------------------------------------------------------------------------
2 Check the Appropriate Box if a Member of a Group* (a) [x]
(b) [ ]
- --------------------------------------------------------------------------------
3 SEC Use Only
- --------------------------------------------------------------------------------
4 Source of Funds*: AF
- --------------------------------------------------------------------------------
5 Check Box if Disclosure of Legal Proceedings is Required
pursuant to Item 2(d) or 2(e) [ ]
- --------------------------------------------------------------------------------
6 Citizenship or Place of Organization: ONTARIO, CANADA
- --------------------------------------------------------------------------------
Number of 7 Sole Voting Power: 0
Shares
- --------------------------------------------------------------------------------
Beneficially 8 Shared Voting Power: 887,510
Owned By
- --------------------------------------------------------------------------------
Each 9 Sole Dispositive Power: 0
Reporting
- --------------------------------------------------------------------------------
Person With 10 Shared Dispositive Power: 887,510
- --------------------------------------------------------------------------------
11 Aggregate Amount Beneficially Owned by Each Reporting Person: 887,510
- --------------------------------------------------------------------------------
12 Check Box if the Aggregate Amount in Row (11) Excludes
Certain Shares* [ ]
- --------------------------------------------------------------------------------
13 Percent of Class Represented by Amount in Row (11): 5.3%
- --------------------------------------------------------------------------------
14 Type of Reporting Person*: CO
================================================================================
</TABLE>
* SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE> 5
AMENDMENT NO. 4 TO SCHEDULE 13D
This statement amends the Schedule 13D, dated July 27, 1994, as
amended by Amendment No. 1 to Schedule 13D, dated August 9, 1994, Amendment No.
2 to Schedule 13D, dated August 29, 1994, and Amendment No. 3 to Schedule 13D,
dated October 26, 1994 (as amended, the "Schedule 13D"), filed by Cuddy Farms,
Inc., A.M. Cuddy and Cuddy International Corporation, with respect to the
Common Stock, no par value per share, of WLR Foods, Inc. Except as expressly
provided in this Amendment No. 4, the Schedule 13D speaks as of its date.
Capitalized terms used without definition herein shall have the meanings
ascribed to them in the Schedule 13D.
I. Item 4 of the Schedule 13D ("PURPOSE OF TRANSACTION") is hereby
amended and restated in its entirety as follows:
ITEM 4. PURPOSE OF TRANSACTION.
On July 27, 1994, the Company entered into an Asset Purchase
Agreement ("Asset Purchase Agreement"), of same date, with Cuddy,
Cuddy International and Wampler-Longacre, Inc., the Company's
wholly-owned subsidiary ("Wampler-Longacre"). The closing (the
"Closing") of the transactions contemplated by the Asset Purchase
Agreement is to be within three (3) business days after Hart-Scott-
Rodino clearance is obtained.
Pursuant to the terms of the Asset Purchase Agreement, the
Company and Wampler-Longacre will acquire substantially all of the
assets of Cuddy's turkey processing division, including, without
limitation, its processing facility, further processing facility, feed
mill, three turkey grow-out farms, a leasehold interest in a second
further processing facility, a partnership interest in a cold storage
and distribution facility and all working capital, machinery,
fixtures, equipment and other tangible personal property for, and
inventory in, such facilities (the "Assets").
The purchase price for the Assets is $73.3 million, subject to
adjustment, $42.5 million of which is payable in cash and the balance
to be issued in Shares. The number of Shares issued will be based on a
ten-day, pre-closing weight average stock market value, subject to a
floor of $24 per Share and a ceiling of $28 per Share. The Agreement
provides for certain post-closing adjustments which are not expected
to be material.
The Shares issued in this transaction will not be registered
under the Securities Act of 1933, as amended, and will be subject to a
Voting Trust Agreement by and among the Company, Cuddy and an
independent corporate trustee. The Voting Trust Agreement will
terminate upon the earlier of (a) the fourth anniversary of the Closing
date; (b) the date on which a business acquisition by the Company
occurs in which in excess of five percent (5%) of its then outstanding
Shares is issued without voting and transfer restrictions similar to
the Voting Trust Agreement and Cuddy's stock ownership in the Company
after such acquisition is less than five percent (5%) of the total
outstanding Shares; or (c) the date on which a "Change of Control" in
the Company occurs. For purposes of the Voting Trust Agreement, a
Change of Control means the acquisition by any individual, entity or
group (within the meaning of Section 13(d)(3) or 14(d)(2) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act")) of
beneficial ownership (within the meaning of Rule 13d-3 promulgated
under the Exchange Act) of more than 30 percent (30%) of either the
then outstanding Shares or the combined voting power of the then
outstanding voting securities of the Company entitled
5
<PAGE> 6
to vote generally in the election of directors. During the term of the
Voting Trust Agreement, the trustee will vote in accordance with the
recommendation of the Company's Board of Directors, as it exists at the
time of the vote of the Company's shareholders, or if there is no
recommendation, as directed by the registered holder of the voting
trust certificate representing the Shares held by the trustee. Unless
otherwise agreed to in writing by the Company, the voting trust
certificates are not transferable except that (a) the holder thereof
may pledge, mortgage or otherwise encumber the certificates and (b) the
holder thereof may transfer the certificates to Cuddy International or
a wholly-owned subsidiary of Cuddy International. Any transferee shall
also be subject to the Voting Trust Agreement. After termination of the
Voting Trust Agreement Cuddy will have certain demand and incidental
registration rights.
Upon the closing and the transaction contemplated by the Asset
Purchase Agreement, Cuddy International, A.M.C. Family Holdings, Ltd.
and A.M. Cuddy (the "Cuddy Group") will enter into a Non-Competition
and Name Use Agreement by which the Cuddy Group will covenant not to
compete with Wampler-Longacre in the business of poultry production for
processing, further processing or marketing of processed poultry
products (exclusive of production of eggs and poults)(the "Protected
Business") in the geographical area in the continental United States in
which Wampler-Longacre or its affiliates currently conduct business.
Sales to certain existing customers of the Cuddy Group are excluded.
The Company will pay Cuddy $500,000 in cash at Closing in consideration
of this Agreement. Pursuant to the Non-Competition and Name Use
Agreement, Cuddy will also grant Wampler-Longacre a five (5)-year
exclusive right and license to the "Cuddy" name within the continental
United States for the Protected Business. The Non-Competitive and Name
Use Agreement contains "standstill" provisions by which the Cuddy Group
agrees, for so long as the Voting Trust Agreement is not terminated,
not to: solicit proxies or participate in an election contest relating
to election of the directors; act together with others to acquire, hold
or vote Shares; purchase or otherwise acquire Shares; or act alone or
together with any person to acquire, or propose a business combination
with, the Company.
The Asset Purchase Agreement also requires Cuddy and
Wampler-Longacre, before Closing, to enter into certain administrative,
supply and processing agreements.
The Asset Purchase Agreement provides that a Cuddy
representative will be appointed to the Company's Board of Directors
who shall serve until the next annual meeting of shareholders and shall
be recommended by the Company's Board of Directors for election at such
meeting. The Closing is subject to customary "due diligence" conditions
and contains mutual indemnifications except that Cuddy and Cuddy
International (the "Cuddy Corporations") shall not be required to
indemnify the Company and Wampler-Longacre (collectively, "Wampler")
for losses not in excess of $250,000. The Voting Trust further requires
WLR Foods to indemnify Cuddy and the trustee for losses, including
legal fees and expenses, in connection therewith.
The parties to the Agreement also signed separate
indemnification agreements, mutually agreeing to certain
indemnifications. On the part of the Cuddy Corporations,
indemnification of Wampler and their respective officers, directors,
employees, shareholders, partners, agents, legal counsel and
accountants is required in connections with certain possible litigation
relating to stockholder and employee complaints. On the part of the
Company, indemnification of the Cuddy Corporations and their respective
officers, directors, employees, shareholders, partners, agents, legal
counsel and accountants is required in connection with pending or
possible litigation relating to the efforts of Tyson Foods, Inc., or
any other bidder which commences its bid on or prior to June 30, 1995,
to gain control of the Company. Both agreements terminate upon final
termination of all actions, suits, proceedings or investigations
6
<PAGE> 7
relating to the respective litigations. The indemnification agreements
also provide that the parties release each other with respect to all
matters except those arising out of, based upon or in connection with,
a breach of the Asset Purchase Agreement (or any other agreement
entered into in connection therewith).
On January 15, 1997, the Company entered into an Stock
Repurchase Agreement ("Stock Repurchase Agreement"), of the same date,
with Cuddy, Cooperatieve Centrale Raiffeisen-Boerenleenbank B.A.
(Rabobank Nederland), The Prudential Insurance Company of America, and
Crestar Bank, as trustee, a copy of which is attached hereto as Exhibit
F. Pursuant to the Stock Repurchase Agreement, Cuddy agreed to sell to
the Company all of the 1,774,999 Shares that Cuddy acquired under the
Asset Purchase Agreement (1,183,333 Shares adjusted for a 3 for 2 stock
split effective on May 12, 1995) at a price of $10.00 in cash per
Share. The sale of such Shares will take place in three installments:
(i) 887,499 Shares on January 17, 1997; (ii) 443,750 Shares on March
31, 1997; and (iii) 443,750 Shares on June 30, 1997. In addition, the
Stock Repurchase Agreement provides that the Registration Rights
Agreement, the Voting trust Agreement and the Put and Call Agreement
shall remain in full force and effect as to Shares not yet purchased by
the Company under the Stock Repurchase Agreement until completion of
the transactions contemplated therein; and that the banks that are
parties to the Stock Repurchase Agreement will not exercise their
rights under the Put and Call Agreement unless the Company breaches the
terms of the Stock Repurchase Agreement and fails to cure such default
within 10 days of notice of such breach.
Except as set forth above, as of the date of the Amendment No.
4 to Schedule 13D, the Reporting Persons have no plan or proposals
which relate to or would result in any of the transactions described
in subparagraphs (a) through (j) of Item 4 of Schedule 13D.
II. Item of the Schedule 13D ("INTEREST IN SECURITIES OF THE COMPANY")
is hereby amended and restated in its entirety as follows:
ITEM 5. INTEREST IN SECURITIES OF THE COMPANY.
(a) On August 29, 1994, the closing of the transactions
contemplated by the Asset Purchase Agreement occurred, and 1,774,999
Shares (1,183,333 Shares adjusted for a 3 for 2 stock split effective
on May 12, 1995) were issued by the Company to the Voting Trustee for
the benefit of Cuddy under the Voting Trust Agreement. An additional
165,000 Shares could have been issued for the benefit of Cuddy under
the Asset Purchase Agreement in connection with certain post-closing
adjustments. On October 26, 1994, Cuddy, Cuddy International, the
Company and Wampler-Longacre reached agreement on the post-closing
adjustments and, as a result, the additional 165,000 Shares will not be
issued and the cash portion of the purchase price was reduced by
approximately $6.3 million. On January 17, 1997, the first (out of
three) closing of the transactions contemplated by the Stock Repurchase
Agreement occurred, and Cuddy sold to the Company (and the Voting
Trustee transferred to the Company) 887,499 Shares at a price of $10.00
in cash per Share. The Reporting Persons currently beneficially own the
following numbers of Shares (adjusted for a 3 for 2 stock split
effective on May 12, 1995): Cuddy - 887,509 Shares; Cuddy International
- 887,510 Shares; and A.M. Cuddy - 887,510 Shares, representing
approximately 5.3% of the issued and outstanding Shares of the Company.
Each of the Reporting Persons shares the power to vote and to dispose
of the Shares beneficially owned by him or it with the Company pursuant
to the Voting Trust Agreement.
7
<PAGE> 8
Except as set forth in this Item 5(a), none of the Reporting
Persons, Limited, Holdings nor, to the best of the knowledge of any of
the Reporting Persons, any of the persons listed in Schedule I hereto,
beneficially owns any Shares.
(b) Except as set forth in Item 5(a) hereof, none of the
Reporting Persons, Limited, Holdings nor, to the best of the knowledge
of any of the Reporting Persons, any of the persons listed in Schedule
I hereto, currently has sole or shared power to vote, to direct the
vote, to dispose or direct the disposition of any Shares.
(c) Except as set forth in Item 5(a) hereof, there have been
no transactions in Shares that were effected during the past 60 days
by the Reporting Persons, Limited, Holdings nor, to the best of the
knowledge of any of the Reporting Persons, any of the persons listed
in Schedule I hereto.
(d) Not applicable.
(e) Not applicable.
III. Item 7 of the Schedule 13D ("EXHIBITS.") is hereby amended and
restated in its entirety as follows to add Exhibit F thereto:
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS.
Exhibit A: Joint Filing Agreement, dated August 8, 1994,
by and among Cuddy Foods, Inc., Cuddy
International Corporation and A.M. Cuddy.
Exhibit B: Asset Purchase Agreement, dated July 27,
1994, by and among Cuddy Farms, Inc., Cuddy
International Corporation, WLR Foods, Inc.
and Wampler-Longacre, Inc. (including the
form of the Non-Competition and Name Use
Agreement and the form of the Voting Trust
Agreement).
Exhibit C: Indemnification Agreement and Release, dated
July 27, 1994, by and between WLR Foods, Inc.
and Cuddy Farms, Inc.
Exhibit D: Indemnification Agreement and Release, dated
July 27, 1994, by and among Cuddy Farms,
Inc., Cuddy International Corporation and WLR
Foods, Inc.
Exhibit E: Form of Registration Rights Agreement.
Exhibit F: Stock Repurchase Agreement, dated January 15,
1997, by and among WLR Foods, Inc., Cuddy
Farms, Inc., Cooperatieve Centrale
Raiffeisen-Boerenleenbank B.A. (Rabobank
Nederland), The Prudential Insurance Company
of America, and Crestar Bank, as trustee.
[Signatures appear on following page]
8
<PAGE> 9
SIGNATURES
After reasonable inquiry and to the best knowledge and belief of the
undersigned, the undersigned certifies that the information set forth in this
statement is true, complete and correct.
Date: February 6, 1997
CUDDY FARMS, INC.
By: /s/ Peter N.T. Widdrington
------------------------------
Name: Peter N.T. Widdrington
Title: Chairman of the Board
CUDDY INTERNATIONAL
CORPORATION
By: /s/ A.M. Cuddy
------------------------------
Name: A.M. Cuddy
Title: Chairman of the Board
/s/ A.M. Cuddy
----------------------------------
A.M. Cuddy
9
<PAGE> 1
EXHIBIT F
STOCK REPURCHASE AGREEMENT
THIS AGREEMENT, dated as of January 15, 1997, is made by and among WLR
FOODS, INC., a Virginia corporation (WLR), CUDDY FARMS, INC., a North Carolina
corporation (Cuddy), COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A.,
"Rabobank Nederland", New York Branch (Rabobank), THE PRUDENTIAL INSURANCE
COMPANY OF AMERICA (Prudential) (Rabobank and Prudential collectively are
referred to herein as "the Banks"), and CRESTAR BANK, as Trustee (the Trustee).
RECITALS:
A. Pursuant to an Asset Purchase Agreement dated July 27, 1994,
WLR issued 1,774,999 shares of its common stock (adjusted for splits) to Cuddy.
Under the terms of a Voting Trust Agreement dated August 29, 1994, the
1,774,999 shares of WLR common stock were issued to the Trustee, who in turn
issued to Cuddy voting trust certificates representing such shares. The shares
issued pursuant to the Asset Purchase Agreement shall be referred to herein as
the "Shares" and the voting trust certificates representing such Shares shall
be referred to herein as the "Voting Trust Certificates".
B. WLR and Cuddy entered into a Registration Rights Agreement
dated August 29, 1994. The Shares have not been registered with the United
States Securities and Exchange Commission.
C. The parties hereto entered into a Put and Call Agreement dated
August 29, 1994, in which WLR agreed to be bound by certain "put" provisions
and the Banks agreed to be bound by certain "call" provisions as described
therein.
D. Cuddy entered into certain pledge agreements dated August 29,
1994 with the Banks by which it granted first priority security interests to
Rabobank and second priority security interests to Prudential in the Shares and
Voting Trust Certificates for the purpose of securing the payment and
performance of Cuddy under respective loan agreements with the Banks.
<PAGE> 2
E. Cuddy has agreed to sell and WLR has agreed to purchase the
Shares, and the Banks have agreed to release their respective security
interests in the Shares and the Voting Trust Certificates, all upon the terms
and conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and the covenants and
conditions hereinafter set forth, the parties covenant and agree as follows:
1. Redemption of Cuddy Shares.
1.1 Transaction. Cuddy agrees to convey, and WLR agrees
to acquire, the Shares at a price of ten dollars ($10.00) per share. Cuddy and
WLR have agreed to the following closing schedule: WLR shall purchase and Cuddy
shall convey 887,499 Shares on January 17, 1997; WLR shall purchase and Cuddy
shall convey 443,750 Shares on March 31, 1997; the balance of the Shares shall
be purchased by WLR and conveyed by Cuddy on June 30, 1997. All closings shall
take place at 10:00 a.m. at the office of WLR's legal counsel or such other
time and place mutually agreed upon by the parties. All such dates are referred
to herein as "the Closing". Payment for the Shares transferred shall be paid at
each Closing by certified or bank cashier's check or other current funds
acceptable to Rabobank, provided however at the January 17, 1997 Closing, Nine
Hundred Thousand Dollars ($900,000), of the payment due on such date shall be
paid to Prudential by wire transfer of immediately available federal funds and
the Seven Million Nine Hundred Seventy-Four Thousand Nine Hundred Ninety Dollar
($7,974,990) balance shall be paid to Rabobank by wire transfer of immediately
available federal funds.
1.2 Release of Security Interests. Concurrently with
WLR's payment of the purchase price of the Shares on each of the respective
Closing Dates set forth above, (i) Rabobank shall surrender to the Trustee,
Voting Trust Certificates representing the number of Shares to be purchased by
WLR on such date, and (ii) the Banks shall each release and terminate their
respective security interests and other liens in the Shares and related Voting
Trust Certificates to be purchased by WLR on such date and execute and deliver
any and all lien release documents as necessary to terminate all UCC financing
statements recorded by the Banks, with respect to such liens. Immediately upon
surrender of the Voting Trust Certificates at the Trustee's offices, Trustee
shall deliver to WLR certificates for the number of shares of WLR stock
represented by the surrendered
2
<PAGE> 3
Voting Trust Certificates. Upon WLR's receipt of such share certificates, WLR
shall deliver to the Trustee, certificates for the remaining number of Shares,
if any, owned by Cuddy. Upon the Trustee's receipt of such share certificates,
the Trustee and Cuddy shall execute and deliver to Rabobank, new Voting Trust
Certificates representing the remaining Shares, if any.
2. Representations and Warranties of Cuddy. Cuddy represents and
warrants to WLR on the date hereof (which representations and warranties shall
be certified true at and as of the Closing) as follows:
2.1 Due Incorporation. Cuddy is a corporation duly
organized, validly existing and in good standing under the laws of the State of
North Carolina, the state of its incorporation.
2.2 Corporate Power of Cuddy. Cuddy has the full
corporate power and authority to enter into this Agreement and to consummate
the transactions contemplated hereby. Neither the execution and delivery of
this Agreement nor the consummation of the transactions herein contemplated
will violate any provision of the Articles of Incorporation or Bylaws of Cuddy.
The execution and delivery of this Agreement by Cuddy and the consummation of
the transactions contemplated hereby have been duly and validly authorized by
all necessary corporate action on the part of Cuddy. This Agreement is the
valid and binding obligation of Cuddy enforceable according to its terms.
2.3 Options. Cuddy is not a party to, or bound by any
option, warrant, call or other agreement relating to the sale or disposition of
any of the Shares, except as referenced in the Recitals of this Agreement.
2.4 No Breach. The consummation of the transactions
herein contemplated including, but not limited to, the execution, delivery and
consummation of this Agreement and the documents required to effect the
transactions herein contemplated do not (a) constitute a violation of or
default under, conflict with or result in a breach of (i) any terms of any
mortgage, indenture, bond, lease, instrument, contract or other agreement to
which Cuddy is or may be bound or constitute a default thereunder (either
immediately or upon notice, lapse of time or both), except as referenced in the
Recitals of this Agreement, (ii) any judgment, order, award, decree of any
court, administrative agency or governmental body, or (iii) any Federal, state
or local
3
<PAGE> 4
statute, law, ordinance, rule or regulation; or (b) result in the creation or
imposition of any lien or other encumbrance on the Shares or give to any person
other than WLR any interest or right in the Shares.
2.5 Title to Shares. Except for the encumbrances
referenced in the Recitals of this Agreement, Cuddy owns, free and clear of any
lien or other encumbrance, and shall have full power and authority to convey
free and clear of any lien or other encumbrance, the Shares and, upon delivery
of and payment for the Shares as herein provided, WLR will acquire good and
valid title thereto, free and clear of any lien or other encumbrance.
3. Representations and Warranties of WLR. WLR represents and
warrants to Cuddy on the date hereof (which representations and warranties
shall be true at and as of the date of Closing) as follows:
3.1 Due Incorporation. WLR is a corporation duly
organized, validly existing and in good standing under the laws of the
Commonwealth of Virginia, the state of its incorporation.
3.2 Corporate Power of WLR. WLR has the full corporate
power and authority to enter into this Agreement and to consummate the
transactions contemplated hereby. Neither the execution and delivery of this
Agreement nor the consummation of the transactions herein contemplated will
violate any agreement to which WLR is a party or by which WLR is bound or any
provision of the Articles of Incorporation or Bylaws of WLR. The execution and
delivery of this Agreement by WLR and the consummation of the transactions
contemplated hereby have been duly and validly authorized by all necessary
corporate action on the part of WLR. This Agreement is the valid and binding
obligation of WLR enforceable according to its terms.
4. Closing Requirements for Cuddy. At each Closing, Cuddy shall
take any and all steps necessary to ensure delivery to WLR of the stock
certificates representing the Shares, duly endorsed, in blank or with duly
executed stock powers attached, in proper form for transfer with all signatures
guaranteed, at the expense of Cuddy.
5. Closing Requirements for WLR. At the first Closing, WLR shall
deliver to Cuddy a copy of the relevant excerpt from the minutes of the meeting
of the Board of Directors of WLR authorizing the execution and performance of
this Agreement and the transactions contemplated by this Agreement by WLR
4
<PAGE> 5
certified by the Secretary or Assistant Secretary of WLR. At each Closing, WLR
shall deliver to Cuddy, or its designee, cash payments as required by
subsection 1.1 of this Agreement.
6. Closing Conditions. Each Closing is conditioned upon the
fulfillment of the Closing requirements of Cuddy and WLR as set forth in
Sections 4 and 5 above.
In addition, WLR and Cuddy must be current in their payments
to each other and not in default with regard to the Turkey Poult Marketing
Agreement and the Feed Supply Agreement.
If either party fails to close due to the failure to comply
with the Closing conditions set forth herein, the nondefaulting party, in
addition to any other remedies available at law or in equity, may require
specific performance, and all reasonable attorney's fees incurred in enforcing
the contract shall be paid by the defaulting party.
7. Dividends. Prior to the conclusion of the transactions
contemplated by this agreement, the holder of each Voting Trust Certificate
shall be entitled to receive dividends paid by WLR, if any, on shares
represented by Voting Trust Certificates held by the Trustee as of the record
date, in the amount of such dividends.
8. Termination of Agreements: The Registration Rights Agreement,
the Voting Trust Agreement, and the Put and Call Agreement shall remain in full
force and effect, unless modified by the terms of this Agreement as to the
Shares not yet purchased by WLR, until the completion of the transactions
contemplated by this Agreement. Notwithstanding the above, however, the Banks
agree not to exercise their rights under the Put and Call Agreement unless WLR
breaches the terms of this Agreement and has not cured such breach within ten
(10) days notice of the breach.
9. Miscellaneous.
9.1 Publicity. Except as otherwise required by law, no
publicity release or announcement concerning this Agreement or the transactions
contemplated hereby shall be issued without advance approval of the form and
substance thereof by WLR .
9.2 Notices. Any notice or other communication required
or which may be given hereunder shall be in writing and either delivered
personally to the addressee, faxed to the addressee or mailed,
5
<PAGE> 6
certified or registered mail or express mail, postage prepaid, and shall be
deemed received when so delivered personally, or received via fax or if by
certified or registered mail, four days after the date of mailing, or if
express mailed, two days after the date of mailing as follows:
(a) if to Cuddy to:
Cuddy Farms, Inc.
P. O. Box 247
Marshville, NC 28103-0247
Attn: Vaughan L. Correll
Fax No. 704-624-5772
With a required copy to:
J. Rob Collins, Esquire
Blake, Cassels & Graydon
Suite 2800, Box 25
Commerce Court West
Toronto, Canada M5L 1A9
Fax No. 416-863-2653
and
David E. Johnston, Esquire
Hunton & Williams
One NationsBank Plaza
Suite 2650
101 South Tryon Street
Charlotte, NC 28280
Fax No. 704-378-4890
(b) if to WLR, to:
WLR Foods, Inc.
P. O. Box 7000
Broadway, VA 22815-7000
Attn: James L, Keeler, President
(540) 896-0498 fax
With a required copy to:
John W. Flora, Esquire
Wharton, Aldhizer & Weaver, P.L.C.
100 South Mason Street
P. O. Box 20028
Harrisonburg, VA 22801-7528
(540) 434-5502 fax
6
<PAGE> 7
(c) if to Rabobank, to:
Rabobank Nederland
245 Park Avenue
New York, NY 10167
Attn: Legal Dept.
Fax No. 212-818-0233
With a required copy to:
Rabobank Nederland
1 Atlanta Center
Suite 3450
1201 W. Peachtree Street
Atlanta, GA 30309-3400
Attn: Steve Rich
Fax No. 404-877-9150
(d) if to Prudential, to:
The Prudential Insurance Company of America
801 Warrenville Road, Suite 600 Lisle, IL
60532 Fax No. 708-810-0764
With a required copy to:
The Prudential Insurance Company of America
201 S. Orange Ave., Suite 795 Orlando, FL
32803 Fax No. 407-649-4963
(e) if to the Trustee (Crestar Bank)
Crestar Bank
Corporate Trust Administration
10th Floor
919 E. Main Street
Richmond, VA 23219
Fax No. 804-782-7855
or to such other address or addresses as the parties may designate to the other
by notice as set forth above.
9.3 Entire Agreement. This Agreement, together with the
Registration Rights Agreement, Put and Call Agreement, and the Voting Trust
Agreement, contains the entire agreement among the parties with respect to the
repurchase of the Shares and related transactions and supersedes all prior
agreements, written or oral, with respect thereto.
7
<PAGE> 8
9.4 Binding Agreement. All of the terms and provisions of
this Agreement shall be binding upon, inure to the benefit of, and be
enforceable by, each of the parties hereto and their respective legal
representatives, successors and assigns.
9.5 Governing Law. This Agreement shall be governed and
construed according to the laws of the Commonwealth of Virginia applicable to
agreements made, delivered and performed entirely within Virginia.
9.6 Reformation and Severability. If any provision of
this Agreement shall be determined by a court of competent jurisdiction to be
invalid or unenforceable, then such provision shall be enforced to the maximum
extent permitted by law, and further, such determination shall not affect the
remaining provisions of this Agreement, all of which shall remain in full force
and effect.
9.7 Waiver. A waiver by any party of a breach of any
provisions of this Agreement shall not operate, nor be construed, as a waiver
of any subsequent breach hereof.
9.8 Counterparts. This Agreement may be executed in two
or more counterparts, each of which shall be deemed an original but all of
which together shall constitute one and the same instrument.
9.9 Headings. The headings in this Agreement are for
reference purposes only and shall not in any way affect the meaning or
interpretation of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
8
<PAGE> 9
WLR FOODS, INC.
By
----------------------------------------
James L. Keeler, President
CUDDY FARMS, INC.
By
----------------------------------------
Its
---------------------------------------
COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK B.A., "Rabobank
Nederland" New York Branch
By
----------------------------------------
Its
---------------------------------------
By
----------------------------------------
Its
---------------------------------------
THE PRUDENTIAL INSURANCE COMPANY OF
AMERICA
By
----------------------------------------
Its
---------------------------------------
CRESTAR BANK, as Trustee
By
----------------------------------------
Its
---------------------------------------
9
