Registration of Securities Issued in a Business-Combination Transaction — Form S-4
Filing Table of Contents
Document/Exhibit Description Pages Size
1: S-4 Registration of Securities Issued in a 138 825K
Business-Combination Transaction
2: EX-2.1 Exhibit 2.1 Merger Agreement 102 369K
3: EX-2.2 Exhibit 2.2 Amendment to Merger Agreement 5 28K
4: EX-2.3 Exhibit 2.3 Articles of Merger 4 24K
5: EX-2.4 Exhibit 2.4 Stock Purchase Agreement 4/22/97 30 119K
6: EX-2.6 Exhibit 2.6 Asset Purchase Agreement 4/25/97 124 395K
7: EX-2.7 Exhibit 2.7 Asset Purchase Agreement 4/17/96 67 222K
8: EX-2.8 Amendment to Asset Purchase Agreement 4/26/96 9 37K
9: EX-3.1 Certificate of Amended and Restated of Inc. 4 23K
10: EX-3.2 Exhibit 3.2 By-Laws 4 25K
11: EX-4.1 Exhibit 4.1 Indenture 105 465K
12: EX-4.3 Exchange and Registration Rights Agreement 19 85K
13: EX-4.4 Exhibit 4.4 Global Note 14 61K
14: EX-10.1 Exhibit 10.1 Distribution Agreement 18 62K
23: EX-10.10 Exhibit 10.10 Term Note (5/21/97)(First Source Fin 4 26K
24: EX-10.11 Exhibit 10.11 Term Note (5/21/97) Nationsbank 4 26K
25: EX-10.12 Exhibit 10.12 Acquisition Note(Bankboston) 4 27K
26: EX-10.13 Exhibit 10.13 Acquisition Note (First Source Fin) 4 27K
27: EX-10.14 Exhibit 10.14 Acquisition Note (Southtrust) 4 27K
28: EX-10.15 Exhibit 10.15 Acquisition Note(Nationsbank) 4 27K
29: EX-10.16 Exhibit 10.16 Credit Agreement 250 877K
30: EX-10.17 Exhibit 10.17 Guarantee and Collateral Agreement 59 225K
31: EX-10.18 Exhibit 10.18 Consent and Release of Lenders 9 31K
32: EX-10.19 Exhibit 10.19 Consent and Release of Pnc 5 30K
15: EX-10.2 Exhibit 10.2 License Agreement 11 46K
33: EX-10.20 Exhibit 10.20 Statement of Understanding 23 76K
34: EX-10.21 Supp #1 to Statement of Understanding 5/31/89 3 21K
35: EX-10.22 Supp #2 to Statement of Understanding 11/27/90 2 21K
36: EX-10.23 Supp #3 to Statement of Understanding 11/18/92 2 21K
37: EX-10.24 Supp #4 to Statement of Understanding 11/9/94 2 21K
38: EX-10.25 Supp #5 to Statement of Understanding 1/16/97 2 21K
39: EX-10.26 Statement of Understanding 1/28/88 Merrick 12 55K
40: EX-10.27 Joint Venture Agreement (Mfa) 24 67K
41: EX-10.28 Joint Venture Agreement (J.R. Simplot) 31 112K
42: EX-10.29 Joint Venture Agreement (Flint River) 20 86K
16: EX-10.3 Exhibit 10.3 Guaranty Agreement 6 31K
43: EX-10.30 Statement of Understanding (8/10/93) (Phelps) 22 69K
44: EX-10.31 Purchase Agreement (5/16/97) 29 129K
45: EX-10.32 Trademark License and Option Agreement 27 93K
46: EX-10.33 Trademark License Agreement 11 46K
47: EX-10.34 License Agreement 12 50K
48: EX-10.35 Transition Storage and Handling Agreement 9 38K
49: EX-10.36 Transition Services Agreement 13 52K
50: EX-10.37 Lease Agreement (W. Fred Williams) 24 102K
51: EX-10.38 Lease Agreement (Eastpark) 24 101K
52: EX-10.39 Software License Agreement 4 24K
17: EX-10.4 Exhibit 10.4 Memorandum of Agreement 7 44K
53: EX-10.40 Employment (Dale) 8 45K
54: EX-10.41 Employment Agreement (Gadd) 8 45K
55: EX-10.42 Employment Agreement (Cowan) 8 45K
56: EX-10.43 Employment Agreement (Oakley) 8 45K
57: EX-10.44 Amended and Restated Management Services Agreement 5 32K
58: EX-10.45 Agreement (Windy & Bruckmann) 3 21K
59: EX-10.46 Exhibit 10.46 (Whpf, Windy & Bruckman) Agreement 3 20K
18: EX-10.5 Exhibit 10.5 Assignment of Trademarks 11 47K
19: EX-10.6 Exhibit 10.6 Employee Benefits Agreements 1 17K
20: EX-10.7 Exhibit 10.7 Disbursing Agreement 21 79K
21: EX-10.8 Exhibit 10.8 Term Note (5/21/97) (Bankboston) 4 26K
22: EX-10.9 Exhibit 10.9 Term Note (5/21/97) (Southtrust) 4 27K
60: EX-12.1 Statement of Computation of Ratios 1 17K
61: EX-25.1 Statement of Eligibility on Form T-1 30 103K
62: EX-99.1 Form of Exchange Agent Agreement 14 55K
63: EX-99.2 Form of Letter of Transmittal 8 41K
64: EX-99.3 Form of Notice of Guarantee Delivery 3 22K
EX-10.4 — Exhibit 10.4 Memorandum of Agreement
| EX-10.4 | 1st Page of 7 | TOC | ↑Top | Previous | Next | ↓Bottom | Just 1st |
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MEMORANDUM OF AGREEMENT
This Memorandum of Agreement, dated as of May 21, 1997, sets forth
the undertakings and commitments of Windy Hill Pet Food Company, Inc. ("Windy
Hill"), Windy Hill Pet Food Acquisition Co. ("Subsidiary") and Feed-Rite (US)
Animal Feeds, Inc. ("Feed-Rite") which have been made to facilitate the closing
of the transactions contemplated by the Asset Purchase Agreement, dated April
25, 1997, among Windy Hill, Subsidiary and Feed-Rite (the "Agreement").
For good and valuable consideration, Windy Hill and Feed-Rite agree
as follows:
1. California Sales Tax. Based on the parties' mutual determinations
that the purchase by Feed-Rite of the assets of Windy Hill's Stockton,
California animal feed facility (the "Assets") may be exempt from the imposition
of California sales tax by reason of the "occasional sale" exemption set forth
in the California Sales Tax Act, Feed-Rite and Windy Hill do not intend to file
a Sales Tax Report with the State of California relative to the sale of the
Assets. If it is subsequently determined that the sale of the Assets to
Feed-Rite is subject, in whole or in part, to sales tax imposed by the State of
California, or any subdivision thereof, Windy Hill and Feed-Rite will each pay
one-half of any such sales tax liability. This commitment shall continue in full
force and effect until such time as the collection of sales taxes is precluded
by the applicable statute of limitations and shall not be subject to any
indemnification limitations imposed by Article 11 of the Agreement.
2. Ohio Transportation Equipment. Windy Hill represents to Feed-Rite
that (i) the motor vehicles and other transportation equipment listed on the
attached exhibit are owned by PBH Transportation, Inc., a Minnesota corporation
("PBH"), (ii) all of the outstanding shares of capital stock of PBH are owned by
Hubbard Milling Company; (iii) no options, warrants or other rights to acquire
any equity interests in PBH are outstanding, and (iv) PBH has no liabilities or
other obligations of any kind whatsoever, whether accrued, contingent, absolute,
determined, determinable or otherwise, and there is no condition, situation or
set of circumstances which could reasonably be expected to result in such a
liability, other than liabilities that would be Assumed Liabilities, as defined
in the Agreement. At the Closing, Windy Hill will assign and transfer to
Feed-Rite all of the outstanding shares of capital stock of PBH and such shares
shall constitute Transferred Assets for all purposes of the Agreement.
Windy Hill shall indemnify Feed-Rite and its successors and assigns,
against any Damages incurred by Feed-Rite which are caused by or arise out of
any breach of any representation or warranty of Windy Hill set forth in this
Section 2. This indemnification commitment shall not be subject to any
indemnification limitations imposed by Article 11 of the Agreement.
For purposes of this Section 2, the terms "Damages" and
"Liabilities" shall have the meanings ascribed to them in the Agreement.
3. Alexandria, Minnesota Leased Facilities. Feed-Rite hereby waives
its right under Section 8.4 of the Agreement to require Windy Hill to deliver to
Feed-Rite, prior to the Closing Date, assignments of (and Landlord's Consents
to) the two separate real estate leases (the "Leases") with the Soo Line
Railroad (the "Railroad") which constitute Material Contracts under the
Agreement, subject to the following terms and conditions:
(a) Windy Hill will make the properties and facilities subject to
the Leases (the "Properties") available to Feed-Rite for use in the operation of
the Business subsequent to the Closing Date without any lease payments (other
than reimbursement of lease payments owing by Windy Hill to the Railroad).
(b) Feed-Rite shall use commercially reasonable efforts to enter
into new lease agreements with the Railroad for the Properties prior to July 30,
1997, on substantially the same terms and conditions as are set forth in the
Leases. Windy Hill will cooperate with Feed-Rite in its efforts to obtain new
lease agreements for the Properties.
(c) In the event that (i) Feed-Rite is not able to enter into new
lease agreements for the Properties that are consistent with the Leases, and
(ii) the Railroad terminates the Leases and forces Feed-Rite to discontinue its
Business operations on the Properties, Windy Hill shall reimburse Feed-Rite for
the costs incurred by Feed-Rite in dismantling and moving the personal
properties used in the operation of the Business on the Properties to another
location and installing them at the new location.
4. ConAgra Feed Agreement. Windy Hill acknowledges that it has not
obtained and delivered to Feed-Rite (i) an assignment of its rights under a Feed
Agreement, dated March 28, 1994 (the "Feed Agreement") between ConAgra, Inc.
("ConAgra") and Hubbard Milling Company (the "Assignment"), or (ii) the consent
of ConAgra to such an assignment (the "Consent"). Feed-Rite hereby waives its
right under Section 8.4 of the Agreement to receive the Assignment and the
Consent from Windy Hill prior to the Closing, subject to the following terms and
conditions:
(a) Subsequent to the Closing, Feed-Rite shall use reasonable
efforts to attempt to secure the Consent from ConAgra, but shall not be required
to incur any out-of-pocket expenses in making such efforts.
(b) If Feed-Rite is successful in obtaining the Consent, Windy Hill
shall execute and deliver the Assignment to Feed-Rite.
(c) Pending receipt of the Consent and as contemplated by Section
3.3 of the Agreement, Windy Hill shall implement such arrangements for the
benefit of Feed-Rite as shall provide for Feed-Rite the benefits that would
otherwise be available to Feed-Rite under the Feed Agreement, and Feed-Rite
shall cooperate with Windy Hill in implementing such arrangements and in
otherwise enabling Windy Hill to satisfy its obligations under the Feed
Agreement.
- 2 -
5. Shipshewana Storm Damage. Windy Hill and Feed-Rite acknowledge
that the Shipshewana, Indiana animal feed plant suffered storm damage to its
office and production facilities on May 18, 1997, and that the extent of that
damage and the costs of necessary repairs and replacement have not yet been
determined. To enable the parties to proceed with the closing on a timely basis,
Feed-Rite shall withhold $100,000 of the aggregate purchase price of the
Transferred Assets and shall make payment of such withheld amount to Windy Hill
after all repairs to the facility and/or replacement of damaged assets has been
completed. It is the intention of Windy Hill and Feed-Rite that the Shipshewana
facilities will be restored to the conditions they were in prior to suffering
such storm damage without cost to Feed-Rite and that any insurance claim
proceeds not used in repairing and/or replacing such facilities shall be
retained by Windy Hill. Feed-Rite and Windy Hill will cooperate in effecting the
repairs to such facilities and replacement of any damaged assets.
IN WITNESS WHEREOF, this Memorandum of Agreement has been executed
by Windy Hill, Feed-Rite and Subsidiary as of the date set forth in the first
paragraph.
WINDY HILL PET FOOD COMPANY, INC.
By /s/ Ray Chung
----------------------------------------
Name: Ray Chung
Title: Executive Vice President
WINDY HILL PET FOOD ACQUISITION CO.
By /s/ Ray Chung
----------------------------------------
Name: Ray Chung
Title: Executive Vice President
FEED-RITE (US) ANIMAL FEEDS, INC.
By /s/ M.E. Maloney
----------------------------------------
Name: M.E. Maloney
Title: President
- 3 -
SCHEDULE A
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FA280 DATE 05/13/97 COMPANY 20 -- HUBBARD MILLING COMPANY
TIME 11:18:27 FIXED ASSET -- ASSET STATUS REPORT
PROCESS LEVEL : 20177 -- HUBBARD MILLING COMPANY
ASSET TYPE/SUBTYPE : AUTOS /
ASSET COMP ASSET- IN-SERV ASSET REM DEPR SALVAGE ASSET BOOK CURRENT PER YEAR TO DATE ASSET TO DATE
NUMBER NBR STATUS DATE LIFE LIFE METH VALUE COST (BASIS) VALUE DEPRECIATION DEPRECIATION DEPRECIATION
86090 -000 A QTY: 1
1986 CHEVY 3/4 TON PICKUP
*BOOK BASIS 03/02/92 48 0.0 STL 0.00 3000.00 0.00 0.00 0.00 3000.00
*** ASSET STATUS ACTIVE TOTALS
*BOOK BASIS 0.00 3000.00 0.00 0.00 0.00 3000.00
*** ASSET TYPE AUTOS TOTALS
*BOOK BASIS 0.00 3000.00 0.00 0.00 0.00 3000.00
ASSET TYPE/SUBTYPE : HNDLG /
140804 -000 A QTY: 1
#804701 1990 INTL TRACTOR
*BOOK BASIS 01/02/90 96 8.0 STL 0.00 62335.30 5194.61 0.00 7791.91 57140.69
140876 -000 A QTY: 1
#537 VAN TRAILER
*BOOK BASIS 06/01/94 72 37.0 STL 0.00 5500.00 2826.38 0.00 916.67 2673.62
140877 -000 A QTY: 1
#527 VAN TRAILER
*BOOK BASIS 06/01/94 72 37.0 STL 0.00 5500.00 2826.38 0.00 916.67 2673.62
140878 -000 A QTY: 1
#124 CONVERTIBLE HOPPER
*BOOK BASIS 06/01/94 60 25.0 STL 0.00 22900.00 9541.67 0.00 4580.00 13358.33
140887 -000 A QTY: 1
#159 1994 PACER B/B TRAILER
*BOOK BASIS 12/01/94 60 31.0 STL 0.00 50571.91 26128.83 0.00 10114.38 24443.08
140895 -000 A QTY: 1
1989 GMC 7000 YARD TRK 2 AXLE
*BOOK BASIS 03/15/97 60 34.0 STL 0.00 7936.00 4497.07 0.00 1587.20 3438.93
140910 -000 A QTY: 1
#163 1996 WARREN B/B TRAILER
*BOOK BASIS 02/09/96 60 45.0 STL 0.00 46317.00 34737.75 0.00 9263.40 11579.25
40035 -000 A QTY: 1
UNIT 35 1972 TRAILMOBLE VAN
*BOOK BASIS 03/02/92 48 0.0 STL 0.00 500.00 0.00 0.00 0.00 500.00
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FA280 DATE 05/13/97 COMPANY 20 -- HUBBARD MILLING COMPANY PAGE 2
TIME 11:18:27 FIXED ASSET -- ASSET STATUS REPORT
PROCESS LEVEL : 20177 -- HUBBARD MILLING COMPANY
ASSET TYPE/SUBTYPE : HNDLG /
ASSET COMP ASSET- IN-SERV ASSET REM DEPR SALVAGE ASSET BOOK CURRENT PER YEAR TO DATE ASSET TO DATE
NUMBER NBR STATUS DATE LIFE LIFE METH VALUE COST (BASIS) VALUE DEPRECIATION DEPRECIATION DEPRECIATION
40039 -000 A QTY: 1
UNIT 39 1984 HENDERSON TRAILER
*BOOK BASIS 03/02/92 48 0.0 STL* 0.00 9000.00 0.00 0.00 0.00 9000.00
40069 -000 A QTY: 1
UNIT 69 83 HENDERSON TRAILER
*BOOK BASIS 03/02/92 48 0.0 STL* 0.00 7500.00 0.00 0.00 0.00 7500.00
40120 -000 A QTY: 1
UNIT 120 1989 BROWN VAN
*BOOK BASIS 03/02/92 48 0.0 STL* 0.00 12000.00 0.00 0.00 0.00 12000.00
40121 -000 A QTY: 1
UNIT 120 1989 BROWN VAN
*BOOK BASIS 03/02/92 48 0.0 STL* 0.00 12000.00 0.00 0.00 0.00 12000.00
40122 -000 A QTY: 1
#122-1988 WILSON HOPPER TRLR
*BOOK BASIS 05/11/92 48 0.0 STL* 0.00 24500.00 0.00 0.00 0.00 24500.00
40123 -000 A QTY: 1
UNIT 123 1989 WILSON TRAILER
*BOOK BASIS 02/09/93 48 0.0 STL 0.00 23200.00 0.00 0.00 4350.00 23200.00
40127 -000 A QTY: 1
UNIT 127 1990 BROWN VAN
*BOOK BASIS 03/02/92 48 0.0 STL* 0.00 13000.00 0.00 0.00 0.00 13000.00
40128 -000 A QTY: 1
UNIT 128 1991 BROWN TRAILER
*BOOK BASIS 03/02/92 48 0.0 STL* 0.00 25000.00 0.00 0.00 0.00 25000.00
40156 -000 A QTY: 1
#156 1976 HENDERSON TRAILER
*BOOK BASIS 03/02/92 48 0.0 STL* 0.00 1500.00 0.00 0.00 0.00 1500.00
40160 -000 A QTY: 1
#160 1984 HENDERSON TRAILER
*BOOK BASIS 03/02/92 48 0.0 STL* 0.00 10400.00 0.00 0.00 0.00 10400.00
40162 -000 A QTY: 1
#162 1980 HENDERSON TRAILER
*BOOK BASIS 03/02/92 48 0.0 STL* 0.00 7800.00 0.00 0.00 0.00 7800.00
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FA280 DATE 05/13/97 COMPANY 20 -- HUBBARD MILLING COMPANY PAGE 3
TIME 11:18:27 FIXED ASSET -- ASSET STATUS REPORT
PROCESS LEVEL : 20177 -- HUBBARD MILLING COMPANY
ASSET TYPE/SUBTYPE : HNDLG /
ASSET COMP ASSET- IN-SERV ASSET REM DEPR SALVAGE ASSET BOOK CURRENT PER YEAR TO DATE ASSET TO DATE
NUMBER NBR STATUS DATE LIFE LIFE METH VALUE COST (BASIS) VALUE DEPRECIATION DEPRECIATION DEPRECIATION
40816 -000 A QTY: 1
UNIT 816 UNLOAD EQUIPMENT
*BOOK BASIS 03/02/92 48 0.0 STL* 0.00 1500.00 0.00 0.00 0.00 1500.00
40892-1 -000 A QTY: 1
#892 UNLOADING EQUIPMENT
*BOOK BASIS 03/02/92 48 0.0 STL* 0.00 520.00 0.00 0.00 0.00 520.00
40949 -000 A QTY: 1
UNIT 949 UNLOAD EQUIPMENT
*BOOK BASIS 03/02/92 48 0.0 STL* 0.00 1500.00 0.00 0.00 0.00 1500.00
40949-1 -000 A QTY: 1
1988 FREIGHTLINER TRACTOR #269
*BOOK BASIS 03/16/92 48 0.0 STL* 0.00 23381.18 0.00 0.00 0.00 23381.18
40950 -000 A QTY: 1
UNIT 950 UNLOAD EQUIPMENT
*BOOK BASIS 03/02/92 48 0.0 STL* 0.00 1500.00 0.00 0.00 0.00 1500.00
40951 -000 A QTY: 1
UNIT 951 UNLOAD EQUIPMENT
*BOOK BASIS 03/02/92 48 0.0 STL* 0.00 1500.00 0.00 0.00 0.00 1500.00
40951-1 -000 A QTY: 1
1988 FREIGHTLINER TRACTOR #273
*BOOK BASIS 03/16/92 36 0.0 STL* 0.00 23381.18 0.00 0.00 0.00 23381.18
40952 -000 A QTY: 1
UNIT 952 UNLOAD EQUIPMENT
*BOOK BASIS 03/02/92 48 0.0 STL* 0.00 1500.00 0.00 0.00 0.00 1500.00
40953 -000 A QTY: 1
UNIT 953 UNLOAD EQUIPMENT
*BOOK BASIS 03/02/92 48 0.0 STL* 0.00 500.00 0.00 0.00 0.00 500.00
40971 -000 A QTY: 1
1995 FREIGHTLINER TRACTOR #971
*BOOK BASIS 08/10/94 72 39.0 STL 0.00 68667.15 37194.74 0.00 11444.52 31472.32
*** ASSET STATUS ACTIVE TOTALS
*BOOK BASIS 0.00 471409.72 122947.40 0.00 50964.75 348462.32
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FA280 DATE 05/13/97 COMPANY 20 -- HUBBARD MILLING COMPANY PAGE 4
TIME 11:18:27 FIXED ASSET -- ASSET STATUS REPORT
PROCESS LEVEL : 20177 -- HUBBARD MILLING COMPANY
ASSET TYPE/SUBTYPE : HNDLG /
ASSET COMP ASSET IN-SERV ASSET REM DEPR SALVAGE ASSET BOOK CURRENT PER YEAR TO DATE ASSET TO DATE
NUMBER NBR STATUS DATE LIFE LIFE METH VALUE COST (BASIS) VALUE DEPRECIATION DEPRECIATION DEPRECIATION
140310 -000 F QTY: 1
#593 79 DORSEY VAN
*BOOK BASIS 04/01/84 B4 0.0 STL 0.00 8525.80 0.00 0.00 0.00 8525.80
*** ASSET STATUS FULLY DEPR TOTALS
*BOOK BASIS 0.0 8525.80 0.00 0.00 0.00 8525.80
*** ASSET TYPE HNDLG TOTALS
*BOOK BASIS 0.0 479935.52 122947.40 0.00 50964.75 356988.12
*** PROCESS LEVEL 20177 TOTALS
*BOOK BASIS 0.0 482935.52 122947.40 0.00 50964.75 359988.12
*** COMPANY 20 TOTALS
*BOOK BASIS 0.0 482935.52 122947.40 0.00 50964.75 359988.12
Dates Referenced Herein
| Referenced-On Page |
|---|
| This ‘S-4’ Filing | | Date | | First | | Last | | | Other Filings |
|---|
| |  |
| | 7/30/97 | | 2 | | | | | None on these Dates |
| Filed on: | | 6/27/97 |
| | 5/21/97 | | 1 |
| | 5/18/97 | | 3 |
| | 4/25/97 | | 1 |
| | 3/28/94 | | 2 |
| List all Filings |
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