SC 14D9/A 1 dkm67.txt SCHEDULE 14D-9 AMENDMENT NO. 3 SECURITIES AND EXCHANGE COMMISSION Washington, D.C. Schedule 14D-9 Solicitation/Recommendation Statement under Section 14(d)(4) of the Securities Exchange Act of 1934 Amendment No. 3 Pierre Foods, Inc. -------------------------------- (Name of Subject Company) Pierre Foods, Inc. -------------------------------- (Name of Persons Filing Statement) Common Stock, No Par Value (Title of Class of Securities) 720830 10 8 ---------------------------- (CUSIP Number of Class of Securities) Pamela M. Witters Chief Financial Officer, Secretary and Treasurer Pierre Foods, Inc. 9990 Princeton Road Cincinnati, Ohio 45246 (513) 874-8741 ----------------------------- (Name, address and telephone numbers of person authorized to receive notice and communications on behalf of the persons filing statement) Copy to: Patrick Daugherty, Esq. Foley & Lardner 150 West Jefferson Avenue Suite 1000 Detroit, Michigan 48226 (313) 963-6200 |X| Check the box if the filing relates solely to preliminary communications made before the commencement of a tender offer. This Schedule 14D-9, Amendment No. 3, is being filed to report the execution on September 18, 2001, of Amendment No. 1 to Agreement and Plan of Share Exchange by and among Pierre Foods, Inc. (the "Company"), PF Management, Inc. ("PF Management"), James C. Richardson, Jr. and David R. Clark (the "Amendment"). The Amendment amends Sections 2.2(b)(i) and 2.3(b) of the Agreement and Plan of Share Exchange (the "Agreement") (attached as Exhibit (d)(1) to Schedule 13E-3 filed with the Securities and Exchange Commission on July 9, 2001) to extend the expiration date of the Agreement from September 30, 2001, to March 2, 2002, and to provide that the Company will reimburse PF Management's Expenses (as that term is defined in the Agreement) in the event the Agreement expires and the Company enters into an Acquisition Transaction (as that term is defined in the Agreement) within one year. In exchange for the Company's entering into the Amendment, PF Management has agreed to continue to forbear in the exercise of its right to terminate the Agreement and receive reimbursement of its Expenses. AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF SHARE EXCHANGE THIS AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF SHARE EXCHANGE (this "Amendment") is made and entered into as of September 18, 2001 among Pierre Foods, Inc., a North Carolina corporation (the "Company"), PF Management, Inc., a North Carolina corporation (the "Acquiror" and, together with the Company, the "Participating Corporations"), and James C. Richardson, Jr. and David R. Clark, who are the principal shareholders of the Acquiror (the "Principal Shareholders"). Statement Of Purpose The Company, the Acquiror and the Principal Shareholders are parties to that certain Agreement and Plan of Share Exchange dated as of April 26, 2001 (the "Agreement"). The Special Committee has received a proposal by William E. Simon & Sons Private Equity Partners, L. P. and Triton Partners (Restructuring) L.L.C. (collectively, "Triton") to acquire any and all shares of the Common Stock for a purchase price of $2.50 per share, subject to the conditions set forth in the proposal. By letter dated July 31, 2001, the Acquiror, at the request of the Special Committee, advised the Special Committee that PFMI does not presently intend to exercise its right to terminate the Agreement and to receive reimbursement of its Expenses while the Special Committee engages in discussions with Triton. The parties acknowledge that the Acquiror is presently entitled to terminate the Agreement and receive reimbursement of its Expenses. However, the Acquiror is willing, until further notice, to continue to forbear in the exercise of its right to terminate the Agreement as set and to receive reimbursement of its Expenses, provided the Company enters into an amendment to the Agreement to extend the expiration date of the Agreement and to provide for the Company's payment of the Acquiror's Expenses in the event the Agreement expires and the Company and Triton (or any other third party that has made a proposal for an Acquisition Transaction during the term of the Agreement) enter into an Acquisition Transaction within one year after such date. The Board of Directors of the Company, based on a recommendation of the Special Committee, has authorized the Company to enter into this Amendment for such purposes. NOW, THEREFORE, in consideration of the premises and the representations, warranties and agreements herein contained, the parties agree as follows: ARTICLE 1 DEFINITIONS ----------- Capitalized terms not otherwise defined in this Amendment shall have the meanings given to such terms in the Agreement. 3 ARTICLE 2 TERMINATION ----------- 1. Section 2.2(b)(i) of the Agreement is hereby amended by changing "September 30, 2001" to "March 2, 2002". 2. Section 2.3(b) of the Agreement is hereby amended by removing the word "or" from the end of subparagraph (ii), inserting the word "or" at the end of subparagraph (iii), and adding the following new subparagraph (iv): "(iv) this Agreement shall have expired on the date set forth in Section 2.2(b)(i) and within 12 months after such date the Company shall enter into a definitive agreement providing for an Acquisition Transaction (as defined in Section 2.4(d)(i)) with William E. Simon & Sons Private Equity Partners, L. P. or Triton Partners (Restructuring) L.L.C., or an affiliate thereof, or with any third party that, prior to the date set forth in Section 2.2(b)(i), submitted to the Company or publicly disclosed a proposal to enter into an Acquisition Transaction;" 3. Clause (B) of Section 2.3(b), which appears in the last two lines of Section 2.3(b), is hereby amended and restated as follows: "(B) an Acquisition Transaction under the circumstances described in Section 2.3(b)(ii) or (iv)." [The remainder of this page is intentionally blank.] 4 IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed as of the date indicated above. PIERRE FOODS, INC. By: /s/ Bobby G. Holman -------------------------------------- Bobby G. Holman Chairman of the Special Committee of the Board of Directors PF MANAGEMENT, INC. By: /s/ David R. Clark -------------------------------------- David R. Clark President /s/ James C. Richardson, Jr. ----------------------------------------- James C. Richardson, Jr. (Solely for the purpose of Sections 4.4 and 2.5 of the Agreement) /s/ David R. Clark ----------------------------------------- David R. Clark (Solely for the purpose of Sections 4.4 and 2.5 of the Agreement) 5 WOMBLE 3300 First Union Center CARLYLE 301 South College Street SANDRIDGE Charlotte, NC 28202-6025 & RICE Telephone: (704) 331-4900 Fax: (704) 331-4955 Web Site: www.wcsr.com Garza Baldwin, III Direct Dial: (704) 331-4907 Direct Fax: (704) 338-7828 E-mail: gbaldwin@wcsr.com July 31, 2001 Via Telecopy (313) 963-9308 Patrick Daugherty Foley & Lardner 150 West Jefferson Suite 1000 Detroit, MI 48226-4416 Re: Agreement and Plan of Share Exchange, Dated as of April 26, 2001, among Pierre Foods, Inc. ("Pierre"), PF Management, Inc. ("PFMI"), James C. Richardson, Jr. and David R. Clark (the "Agreement") Dear Pat: This letter confirms our telephone conversation yesterday relating to the proposal dated July 18, 2001 by William E. Simon & Sons, and Triton Partners (collectively, "Triton"). As we discussed, under Section 2.2(e) of the Agreement, PFMI would have the right to terminate the Agreement upon notice to Pierre and the Special Committee in accordance with Section 2.3 and to be paid its expenses in accordance with Section 2.3(b) if the Special Committee fails to reject Triton's proposal by tomorrow. On behalf of PFMI, this will confirm that PFMI does not presently intend to exercise its right to terminate the Agreement and to request payment of its expenses as set forth above while the Special Committee engages in discussions with Triton and its advisers. However, this letter shall not constitute a waiver by PFMI of its right to terminate the Agreement upon notice to Pierre and the Special Committee in accordance with Section 2.3 of the Agreement. This letter will further confirm, on behalf of PFMI, that, notwithstanding the absence of the Board determination required by Section 2.4(d)(iii) of the Agreement, the Special Committee and its legal and financial advisers (or any one or more of them) may continue to engage in substantive discussions with Triton and its legal and financial advisers (or any one or more of them) with respect to Triton's proposal, provided that the parties do not reach an agreement regarding the proposal or any material term or provision thereof without first complying with Section 2.4(d)(iii) and any other applicable provisions of the Agreement. July 31, 2001 Page 2 We remind the Special Committee of the obligations of Pierre and its representatives, including the Special Committee, under Section 2.4(e) of the Agreement, which requires the Special Committee to update PFMI on an ongoing basis regarding the status of the Special Committee's discussions with Triton and/or its representatives. Sincerely yours, /s/ Garza Garza Baldwin, III GBIII:msd cc: David R. Clark