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 170 804K
Business-Combination Transaction
2: EX-1.1 Placement Agreement 26 97K
3: EX-2.1 Articles of Merger 6 33K
4: EX-3.1.A Certificate of Incorporation 17 70K
5: EX-3.1.B Certificate of Amendment 2 17K
14: EX-3.10 Restated By-Laws 20 80K
6: EX-3.2.A Certificate of Incorporation 2 19K
7: EX-3.2.B Certificate of Correction 1 16K
8: EX-3.4 Articles of Incorporation 3 20K
9: EX-3.5 Certificate of Incorporation 3 19K
10: EX-3.6 Amended and Restated By-Laws 22 88K
11: EX-3.7 Amended and Restated By-Laws 20 84K
12: EX-3.8 Restated By-Laws 23 94K
13: EX-3.9 Restated By-Laws 23 94K
15: EX-4.1.A Indenture 106 411K
16: EX-4.1.B Specimen Certificate 12 47K
17: EX-4.2 Registration Rights Agreement 21 82K
18: EX-4.3.A Credit Agreement 73 278K
19: EX-4.3.B First Amendment to Credit Agreement 15 59K
20: EX-4.3.C Second Amendment to Credit Agreement 8 41K
21: EX-4.3.D Third Amendment to Credit Agreement 5 28K
22: EX-4.3.E Fourth Amendment to Credit Agreement 27 102K
23: EX-4.3.F Fifth Amendment to Credit Agreement 13 55K
24: EX-4.3.G Guaranty Agreement 7 39K
25: EX-5.1 Opinion of Blackwell Sanders Peper Martin LLP 2 20K
26: EX-10.1 1999 Equity Incentive Plan 20 77K
36: EX-10.10 Stock Purchase Agreement 47 184K
37: EX-10.11 Market Hog Contract Grower Agreement 9 44K
27: EX-10.2 Long-Term Incentive Plan 9 32K
28: EX-10.3 Executive Level Severance Plan 13 54K
29: EX-10.4 Vice President Level Severance Plan 13 54K
30: EX-10.5 Special Executive Retirement Plan 16 69K
31: EX-10.6.A Premium Standard Farms Deferred Compensation Plan 17 71K
32: EX-10.6.B Amendment No.1 Psf Deferred Compensation Plan 2 17K
33: EX-10.7 Consulting Agreememt 8 36K
34: EX-10.8 Services Agreement 10 47K
35: EX-10.9 Consulting Agreement 4 22K
38: EX-12.1 Statement Re Computation of Ratio of Earnings 1 17K
39: EX-21.1 Subsidiaries 1 14K
40: EX-23.2 Consent of Arthur Andersen LLP 1 14K
41: EX-23.3 Consent of Kpmg LLP 1 14K
42: EX-25.1 Form T-1 29 98K
43: EX-25.2 Statement of Eligibility and Qualification on T-1 30 100K
44: EX-99.1 Form of Letter 2 22K
45: EX-99.2 Form of Letter of Transmittal 9 42K
46: EX-99.3 Form of Notice of Guaranteed Delivery 4 24K
47: EX-99.4 Form of Instructions 2 20K
48: EX-99.5 Form of Letter to Clients 2± 16K
49: EX-99.6 Guidelines 4± 23K
Exhibit 2.1
ARTICLES OF MERGER
OF
PSF ACQUISITION CORP.
INTO
THE LUNDY PACKING COMPANY
The Lundy Packing Company (the "Surviving Corporation"), a corporation
organized under the laws of the State of North Carolina, hereby submits these
Articles of Merger for the purpose of merging PSF Acquisition Corp. (the
"Merging Corporation"), a corporation organized under the laws of the State of
North Carolina, into the Surviving Corporation:
I. The following Plan of Merger was duly approved in the manner
prescribed by law:
PLAN OF MERGER
OF
PSF ACQUISITION CORP.
WITH AND INTO
THE LUNDY PACKING COMPANY
A. CORPORATIONS PARTICIPATING IN MERGER
The names of the constituent corporations proposing to merge
are The Lundy Packing Company ("Lundy") and PSF Acquisition Corp.
("PSF"), and the constituent corporation that shall be the surviving
corporation after the merger becomes effective is The Lundy Packing
Company (the "Surviving Corporation").
B. NAME OF SURVIVING CORPORATION
The name which the Surviving Corporation shall have after the
merger becomes effective is "The Lundy Packing Company."
C. TERMS AND CONDITIONS OF PROPOSED MERGER
Pursuant to the terms and conditions of this Plan, PSF shall
be merged with and into Lundy. Upon the merger of PSF into Lundy, the
corporate existence of PSF shall cease and the corporate existence of
Lundy shall continue.
D. CONVERSION AND EXCHANGE OF SHARES
At the Effective Time (as hereinafter defined):
1. Shares of Lundy. Each share of stock of Lundy issued and
outstanding immediately prior to the Effective Time (other than shares
issued and held in the treasury of Lundy and other than shares with
respect to which dissenters' rights are properly exercised) shall
automatically be converted into and become a right to receive in cash
an amount per share (the "Merger Consideration") equal to the quotient
determined by dividing (i) the difference obtained by subtracting from
(A) $68,000,000 both (B) the sum of the amount of capitalized lease
obligations and indebtedness for borrowed money incurred by Lundy and
its subsidiaries on a consolidated basis, as determined on the day
immediately preceding the Effective Time, in excess of $37,892,648 and
used to fund operating cash flow losses (excluding indebtedness used
for working capital, certain capital expenditures, and expenses related
to the Merger) and (C) amounts paid by Lundy (x) as premiums for
officers' and directors' liability insurance covering post-Merger each
present and former director or officer of Lundy or any of its
subsidiaries who is currently covered by Lundy's existing officers' and
directors' liability insurance policies and (y) as fees for the
services of brokers, attorneys, accountants, engineers, consultants and
other like professionals in connection with the negotiation and
consummation of the Merger (other than fees paid to an investment
manager and fees related to title insurance and surveys obtained in
connection with the Merger), in excess of $1,500,000, by (ii) the
aggregate number of shares of stock of Lundy outstanding at the
Effective Time. Each share of stock of Lundy issued and held in the
treasury of Lundy immediately prior to the Effective Time shall
automatically be canceled and no payment shall be made with respect
thereto. Aggregate amounts of Merger Consideration payable to
individual shareholders shall be rounded up to the nearest whole cent.
2. Shares of PSF. Each share of stock of PSF issued and
outstanding immediately prior to the Effective Time shall automatically
be converted into and become one (1) validly issued, fully paid and
nonassessable share of common stock of the Surviving Corporation.
3. Closing of Lundy's Transfer Books. At the Effective Time,
the stock transfer books of Lundy shall be closed with respect to
shares of Lundy issued and outstanding immediately prior to the
Effective Time and no further transfer of such shares shall thereafter
be made on such stock transfer books. If, after the Effective Time,
valid certificates previously representing such shares are presented to
the Surviving Corporation or its designee, such certificates shall be
exchanged as provided in Section 4 below.
4. Exchange of Certificates. After the Effective Time (as
hereinafter defined), upon the surrender and exchange of a certificate
theretofore representing shares of Lundy's stock to the Surviving
Corporation or its designee, the holder shall be paid the aggregate
Merger Consideration applicable to such shares, without interest
thereon, and such certificate shall forthwith be canceled. Until so
surrendered and exchanged, each such certificate shall represent solely
the right to
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receive, in cash, the Merger Consideration into which the shares of
Lundy it theretofore represented shall have been converted pursuant to
Section 1 above, without interest, and the Surviving Corporation or its
designee shall not be required to pay the holder of such certificates
any portion of the Merger Consideration to which such person otherwise
would be entitled; provided, that customary and appropriate
certifications and indemnities allowing for payment against lost or
destroyed certificates shall be permitted. After the Effective Time (as
hereinafter defined), upon the surrender and exchange of a certificate
theretofore representing shares of PSF's stock to the Surviving
Corporation or its designee, the holder shall receive a certificate
representing one (a) share of the Surviving Corporation's stock for
each share of PSF's stock represented by the surrendered certificate(s)
and such surrendered certificate(s) shall forthwith be canceled.
5. Dissenting Shares. Notwithstanding any other provisions of
this Plan, shares of Lundy's stock that are outstanding immediately
prior to the Effective Time and which are held by a holder of shares of
Lundy stock who shall have (a) duly given written notice to Lundy,
prior to the taking of the vote by Lundy's shareholders on approval of
this Plan, of such holder's intent to dissent from the merger
contemplated by this Plan and demand payment of the "fair value" of
such shares in accordance with Article 13 of the North Carolina
Business Corporation Act (N.C. Gen. Stat. Section 55-1-01 et seq.) (the
"Dissenters' Rights Provisions"), (b) not voted such shares in favor of
this Plan, and (c) not withdrawn, waived or otherwise lost or forfeited
such holder's dissenter's rights under the Dissenters' Rights
Provisions prior to the Effective Time (collectively, the "Dissenting
Shares"), shall not be converted into or represent the right to receive
from the Surviving Corporation payment of the "fair value" thereof in
accordance with the Dissenters' Rights Provisions, except that all
Dissenting Shares held by holders who after the Effective Time shall
have failed to perfect or who effectively shall have withdrawn, waived
or otherwise lost or forfeited their dissenters' rights under the
Dissenters' Rights Provisions shall thereupon be deemed to have been
converted into and to become exchangeable, as of the Effective Time,
for the right to receive, without any interest thereon, the appropriate
part of the Merger Consideration, upon surrender, in the manner
provided in Section 4 above, of the certificate or certificates that
formerly evidenced such shares of Lundy stock.
E. ARTICLES OF INCORPORATION, BYLAWS, DIRECTORS AND OFFICERS
At the Effective Time (as hereinafter defined):
1. The articles of incorporation of the Surviving Corporation
shall be amended by deleting all of the enumerated provisions thereof
and inserting in lieu thereof, the following:
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"1. The name of the corporation is The Lundy Packing Company.
2. The corporation shall have authority to issue 100,000 shares of
stock, all of one class.
3. The street address of the initial registered office of the
corporation is 1001 College Court, New Bern, Craven County, North
Carolina 28562; the mailing address of the initial registered office of
the corporation is Post Office Box 867, New Bern, Craven County, North
Carolina 28563; and the name of the initial registered agent at such
address is Leigh Wilkinson.
4. The number of directors of the corporation may be fixed by
the bylaws. The number of directors constituting the initial board of
directors shall be nine, and the names and addresses of the persons who
shall serve as directors until the first meeting of shareholders, or
until successors shall be elected and qualified, are as follows:
Name Address
---- -------
Mark Baker 277 Park Avenue
New York, NY 10172
Paul Fribourg 277 Park Avenue
New York, NY 10172
Vart Adjemian 277 Park Avenue
New York, NY 10172
Michael Zimmerman 277 Park Avenue
New York, NY 10172
John Meyer 423 West 8th Street
Suite 200
Kansas City, MO 64105
Ronald Justice 423 West 8th Street
Suite 200
Kansas City, MO 64105
Maurice McGill 423 West 8th Street
Suite 200
Kansas City, MO 64105
4
Dean Mefford 423 West 8th Street
Suite 200
Kansas City, MO 64105
Mitch Petrick 423 West 8th Street
Suite 200
Kansas City, MO 64105
5. To the fullest extent permitted by the North
Carolina Business Corporation Act as it exists or may
hereafter be amended, no person who is serving or who has
served as a director of the corporation shall be personally
liable to the corporation or any of its shareholders for
monetary damages for breach of duty as a director. No
amendment or repeal of this article, nor the adoption of any
provision to these Articles of Incorporation inconsistent with
this article, shall eliminate or reduce the protection granted
herein with respect to any matter that occurred prior to such
amendment, repeal, or adoption.
6. Shareholders of the corporation shall have no
preemptive right to acquire additional shares of the
corporation.
2. The bylaws of PSF, as in effect immediately prior to the
Effective Time, shall be the bylaws of the Surviving Corporation.
3. The directors of PSF holding office immediately prior to
the Effective Time shall be the directors of the Surviving Corporation
immediately after the Effective Time.
4. The officers of PSF holding office immediately prior to the
Effective Time shall be the officers of the Surviving Corporation
immediately after the Effective Time.
F. TAKING OF NECESSARY ACTION
Lundy and PSF (collectively, the "Constituent Corporations")
shall use all reasonable efforts to take all such action as may be
necessary or appropriate in order to effectuate the merger contemplated
by this Plan as promptly as possible. If, at any time after the
Effective Time (as hereinafter defined), any further action is
necessary or desirable to carry out the purposes of the merger
contemplated by this Plan or to vest the Surviving Corporation with
full right, title and possession to all assets, property, rights,
privileges, immunities and franchises of either or both of the
Constituent Corporations, the officers and directors of the Surviving
Corporation are fully authorized in the name of either or both of the
Constituent Corporations, or otherwise, to take, and shall take, all
such action.
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G. EFFECTIVE DATE AND TIME
The date and time at which the merger contemplated by this
Plan shall become effective is 12:01 a.m. on the date of filing of the
Articles of Merger by the North Carolina Secretary of State (the
"Effective Time").
II. As to the Surviving Corporation and the Merging Corporation,
shareholder approval was obtained as required by Chapter 55 of the North
Carolina General Statutes.
IN WITNESS WHEREOF, these Articles of Merger are signed by the
President of the Surviving Corporation as of the 10 day of August, 2000.
THE LUNDY PACKING COMPANY
By: /s/ Lewis M Fetterman Jr
-------------------------------
Lewis M. Fetterman, Jr., President
Prepared by and return to:
Leigh A. Wilkinson
For the firm of
Ward and Smith, P.A.
1001 College Court
Post Office Box 867
New Bern, North Carolina 28563-0867
Telephone: (252) 672-5400
Facsimile: (252) 672-5477
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