-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: keymaster@town.hall.org Originator-Key-Asymmetric: MFkwCgYEVQgBAQICAgADSwAwSAJBALeWW4xDV4i7+b6+UyPn5RtObb1cJ7VkACDq pKb9/DClgTKIm08lCfoilvi9Wl4SODbR1+1waHhiGmeZO8OdgLUCAwEAAQ== MIC-Info: RSA-MD5,RSA, WWCLL+R+dPVxXXq18CSQ8XhpF/WOP1WZnjleTzoq0NapMxXEihlfTXFe0B/77BYA oz81H8TnT4mmhgq3Ct6Few== 0000760775-94-000018.txt : 19940914 0000760775-94-000018.hdr.sgml : 19940914 ACCESSION NUMBER: 0000760775-94-000018 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 6 CONFORMED PERIOD OF REPORT: 19940929 ITEM INFORMATION: Acquisition or disposition of assets FILED AS OF DATE: 19940913 FILER: COMPANY DATA: COMPANY CONFORMED NAME: WLR FOODS INC CENTRAL INDEX KEY: 0000760775 STANDARD INDUSTRIAL CLASSIFICATION: 2015 IRS NUMBER: 541295923 STATE OF INCORPORATION: VA FISCAL YEAR END: 0630 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 000-17060 FILM NUMBER: 94548908 BUSINESS ADDRESS: STREET 1: P O BOX 7000 CITY: BROADWAY STATE: VA ZIP: 22815 BUSINESS PHONE: 7038674001 MAIL ADDRESS: STREET 1: 800 CO OP DRIVE CITY: TIMBERVILLE STATE: VA ZIP: 22853 FORMER COMPANY: FORMER CONFORMED NAME: WAMPLER LONGACRE ROCKINGHAM INC DATE OF NAME CHANGE: 19881114 FORMER COMPANY: FORMER CONFORMED NAME: WAMPLER LONGACRE INC DATE OF NAME CHANGE: 19880209 8-K 1 1 SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM 8-K CURRENT REPORT Pursuant to Section 13 or 15d of the Securities and Exchange Act of 1934 --------------------------- Date of Report (Date of earliest event reported) August 29, 1994 WLR Foods, Inc. (Exact name of registrant as specified in its charter) Virginia 0-17060 54-1295923 (State of Incorporation) (Commission File Number) (IRS Employer Identification No.) P.O. Box 7000 22815 Broadway, Virginia (Zip Code) (Address of Principal executive offices) (703) 896-7001 (Registrant's telephone number, including area code) Exhibit Index is on Page _____ 2 Item 2. Acquisition of Assets Pursuant to the terms of an Asset Purchase Agreement dated July 27, 1994, between WLR Foods, Inc. (the Registrant), Wampler-Longacre, Inc., the Registrant's wholly- owned subsidiary (Wampler-Longacre) (collectively, Wampler), Cuddy Farms, Inc. (Cuddy) and Cuddy International Corporation (Cuddy International) (collectively, the Cuddy Corporations), Wampler acquired substantially all the assets of Cuddy's turkey processing division. The transaction was closed on August 29, 1994. The acquired assets included, without limitation, Cuddy's processing facility, further processing facility, feed mill, three turkey grow-out farms, leasehold interest in a second further processing facility, and all working capital, machinery and fixtures, equipment and other tangible personal property for, and inventory in, such facilities (the Assets). The purchase price for the Assets was $73.3 million, subject to certain post- closing adjustments which are not expected to be material. Of the total purchase price, $42.5 million was paid in cash, and the balance was issued in shares of the Registrant's common stock. The number of shares was based on a value of $24 per share. Cash was generated from short term borrowings. Cuddy's turkey processing division operated the Assets as a fully integrated turkey processor. The Registrant intends to continue those operations at their present locations in North Carolina. The shares issued in this transaction, which have not been registered under the Securities Act of 1933, are subject to a voting trust agreement by and among the Registrant, 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 Registrant occurs in which in excess of five percent (5%) of its then outstanding common stock is issued without voting and transfer restrictions similar to the Voting Trust Agreement and Cuddy's stock ownership in the Registrant after such acquisition is less than five percent (5%) of the total outstanding shares of the Registrant's common stock; or (c) the date on which a "Change of Control" in the Registrant 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 of common stock of the Registrant or the combined voting power of the then outstanding voting securities of the Registrant entitled 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 Registrant's Board of Directors, as it exists at the time of the vote of the Registrant'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 Registrant, 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 3 subject to the Voting Trust Agreement. After termination of the Voting Trust Agreement, Cuddy will have certain demand and incidental registration rights, pursuant to a Registration Agreement dated August 29, 1994. Further, the voting trust certificates and the underlying shares have been pledged by Cuddy to secure payment and performance by Cuddy under certain loan agreements executed by Cuddy with Cooperatieve Centrale Raiffeisen-Boerenieenbank B.A., "Rabobank Nederland, New York Branch" (Rabobank) and The Prudential Insurance Company of America (Prudential). In order to effect the pledges, the Registrant, Cuddy, Rabobank, Prudential and the Trustee entered a Put and Call Agreement dated August 29, 1994. Pursuant to the Put and Call Agreement, upon the occurrence of a default, as defined in the Put and Call Agreement, if either Rabobank or Prudential, as the case may be (Transferring Bank) desires to transfer the voting trust certificates in connection with its realization on the voting trust certificates pursuant to the applicable loan agreement, it must provide written notice of the intended transfer to the Registrant. Upon delivery of the notice, the Registrant shall have a call option, exercisable within a period of twenty (20) days thereafter, obligating the Transferring Bank to sell the voting trust certificates at a price of twenty dollars ($20) per underlying share. Similarly, upon delivery of written notice of an intended transfer, the Transferring Bank shall have a put option, exercisable within a period of twenty (20) days thereafter, obligating the Registrant to purchase the voting trust certificates at a price of fifteen dollars ($15) per underlying share. In the event the Registrant fails to fulfill its obligation under the put option, the Trustee is directed to immediately release the underlying shares and to transfer them to the Transferring Bank, or its nominee, free and clear of the Voting Trust Agreement. The Put and Call Agreement terminates upon the termination of the voting trust. Also in connection with the acquisition, Cuddy, Cuddy International, A.M.C. Family Holdings, Ltd. and A.M. Cuddy (the Cuddy Group) entered into a Non-Competition and Name Use Agreement by which the Cuddy Group covenants not to compete with Wampler-Longacre for a period of four years 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 Registrant paid Cuddy $500,000 in cash at closing in consideration of the agreement. Pursuant to the Non-Competition and Name Use Agreement, Cuddy also granted 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-Competition 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 the Registrant's common stock; purchase or otherwise acquire the Registrant's common stock; or act alone or together with any person to acquire, or propose a business combination with, the Registrant. 4 Pursuant to the Asset Purchase Agreement, a Cuddy representative was appointed to the Registrant's Board of Directors to serve until the next annual meeting of the shareholders, and to be recommended by the Registrant's Board of Directors for election at such meeting. The parties to the Agreement also signed separate indemnification agreements (the "Indemnification Agreements"), mutually agreeing to certain indemnification. On the part of the Cuddy Corporations, indemnification of Wampler is required in connection with certain possible litigation relating to stockholder and employee complaints. On the part of Wampler, indemnification of the Cuddy Corporations is required in connection with pending or possible litigation relating to the efforts of Tyson Foods, Inc. to acquire the Registrant. Both agreements terminate upon final termination of all actions, suits, proceedings or investigations relating to the respective litigations. The foregoing description is qualified in its entirety by reference to the exhibits hereto, which are incorporated herein by reference. Item 7. Financial Statements, Pro Forma Financial Information and Exhibits. Because it is impracticable to provide the requisite financial statements at the time of this filing, they will be filed under cover of Form 8-K/A as they are available, but no later than 75 days from the date of this report. EXHIBITS Exhibit 2.1 Asset Purchase Agreement dated July 27, 1994 - incorporated by reference to the Registrant's Form 8-K filed July 29, 1994 4.1 Put and Call Agreement dated August 19, 1994 4.2 Non-Competition and Name Use Agreement dated August 29, 1994 4.3 Registration Rights Agreement dated August 29, 1994 9.1 Voting Trust Agreement dated August 29, 1994 10.1 Indemnification Agreement dated July 27, 1994 by and between WLR Foods, Inc. and Cuddy Farms, Inc. - incorporated by reference to the Registrant's Form 8-K filed July 29, 1994 10.2 Indemnification Agreement dated July 27, 1994 by and among Cuddy Farms, Inc., Cuddy International Corporation and WLR Foods, Inc. - incorporated by reference to the Registrant's Form 8-K filed July 29, 1994 99.2 Press Release dated August 29, 1994 5 SIGNATURE Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized. WLR Foods, Inc. By:_________________________________ Delbert L. Seitz Chief Financial Officer Secretary and Treasurer 22278 6 EXHIBIT INDEX Exhibit No. Description Page Number 2.1 Asset Purchase Agreement dated July 27, 1994 N/A incorporated by reference to the Registrant's Form 8-K filed July 29, 1994 4.1 Put and Call Agreement dated August 19, 1994 7 4.2 Non-Competition and Name Use Agreement 16 dated August 29, 1994 4.3 Registration Rights Agreement dated August 29, 1994 20 9.1 Voting Trust Agreement dated August 29, 1994 33 10.1 Indemnification Agreement dated July 27, 1994 N/A by and between WLR Foods, Inc. and Cuddy Farms, Inc. incorporated by reference to the Registrant's Form 8-K filed July 29, 1994 10.2 Indemnification Agreement dated July 27, 1994 N/A by and among Cuddy Farms, Inc., Cuddy International Corporation and WLR Foods, Inc. - incorporated by reference to the Registrant's Form 8-K filed July 29, 1994 99.2 Press Release dated August 29, 1994 42 EX-99.1 2 7 Exhibit 4.1 PUT AND CALL AGREEMENT THIS PUT AND CALL AGREEMENT is made as of August 29, 1994 by and among Cuddy Farms, Inc., a North Carolina corporation (the "Borrower"), Cooperatieve Centrale Raiffeisen-Boerenleenbank B.A., "Rabobank Nederland, New York Branch" ("Rabobank"), The Prudential Insurance Company of America ("Prudential") (Rabobank and Prudential collectively referred to herein as "the Banks"), WLR Foods, Inc., a Virginia corporation (the "Issuer") and Crestar Bank ("the Trustee"). RECITALS: A. Concurrently with today's closing of an Asset Purchase Agreement dated July 27, 1994 by and among the Borrower, Issuer and others, 1,183,333 shares of common stock of the Issuer were issued on behalf of the Borrower to the Trustee, trustee under a Voting Trust Agreement of even date herewith, who, in turn, has issued to Borrower voting trust certificates representing such shares. A copy of the Voting Trust Agreement is attached hereto as Exhibit A. The Borrower and Issuer anticipate that additional shares of the Issuer's common stock may be issued to the Trustee, on behalf of Borrower, following certain post-closing adjustments. The shares which have been or yet may be issued to the Trustee under the Voting Trust Agreement shall be referred to herein as "Shares" and the voting trust certificates representing such Shares shall be referred to herein as "Voting Trust Certificates." B. The Borrower has entered into pledge agreements, of even date herewith, with the Banks by which it has 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 payment and performance of the Borrower under respective loan agreements with the Banks. C. In connection with the release of the Banks' liens on certain assets today acquired pursuant to the above-referenced Asset Purchase Agreement, the Issuer has agreed to be bound by certain "put" provisions, and the Banks have agreed to be bound by certain "call" provisions, described herein. NOW, THEREFORE, in consideration of the premises and of the covenants and conditions hereinafter set forth, the parties covenant and agree as follows: 1. Put Option. At any time during the term of this Agreement, Rabobank and Prudential shall each be entitled to deliver a written notice, in substantially the same form as Exhibit B attached hereto ("Put Notice"), signed by the Bank exercising such Put Notice (the "Exercising Bank") and delivered concurrently to each of the Issuer, Trustee and the non-Exercising Bank, which Put Notice shall constitute a put of the Voting Trust Certificates at a price of Fifteen Dollars ($15.00) (equitably adjusted in the event of stock splits, reverse stock splits or other similar events) per underlying Share. The delivery of the Put Notice shall obligate the Issuer to purchase the Voting Trust Certificates within twenty (20) business days following the date of delivery of the Notice. Settlement of this put right shall be made at the offices of the Trustee at which time the Issuer shall make payment to the Bank exercising the put (the "Exercising 8 Bank") by wire transfer of immediately available funds and the Exercising Bank shall endorse and deliver to the Issuer the Voting Trust Certificates. 2. Release of Shares. If and only if the Issuer does not make timely settlement of its purchase obligation described in Section 1 above, the Trustee shall immediately release and transfer to the Exercising Bank, or its nominee, the Shares, free and clear of the Voting Trust Agreement. The Trustee shall note on the reverse side of the stock certificate(s) evidencing the Shares the release of the Shares from the Voting Trust Agreement, which signature shall be valid and binding against all parties hereto. 3. Registration Rights. The Issuer expressly acknowledges the Borrower's right to assign to the Banks its interest in a Registration Rights Agreement of even date herewith. 4. Call Option. In the event either Bank desires to transfer any of the Voting Trust Certificates in connection with its realization on the Voting Trust Certificates according to its pledge agreement with the Borrower (the "Transferring Bank"), the Transferring Bank shall deliver to the Issuer and the non-Transferring Bank a written notice, in substantially the same form as Exhibit C attached hereto ("Call Notice"), which notice shall give rise to the Issuer's right within twenty (20) business days of the date of delivery of the Call Notice to purchase the Voting Trust Certificates which the Transferring Bank intends to transfer as set forth in the Call Notice at a price of Twenty Dollars ($20.00) (equitably adjusted in the event of stock splits, reverse stock splits or other similar events) per underlying Share. This call right shall be effected by the Issuer's execution and delivery of the Call Notice in the space provided thereon. Settlement of this call right shall be made at any mutually agreeable location at which time the Issuer shall make payment to the Transferring Bank by wire transfer of immediately available funds, and the Transferring Bank shall endorse and deliver to the Issuer the Voting Trust Certificates. 5. Termination. Upon termination of the Voting Trust Agreement, this Agreement shall likewise be terminated. 6. Indemnification. The Exercising Bank or Transferring Bank,as the case may be, shall indemnify and hold harmless the Trustee andthe Issuer and their respective officers, directors, employees, shareholders, partners, agents, legal counsel and accountants (each an "Indemnitee") to the fullest extent permitted by applicable law in effect on the date hereof or as such laws may from time to time be amended from and against all losses, claims, damages, liabilities and expenses (including attorney's fees and expenses and any and all expenses whatsoever incurred in investigating, preparing or defending any action, suit, investigation or proceeding), and amounts paid in settlement incurred by an Indemnitee if such Indemnitee is a party or is threatened to be made a party to any threatened, pending or completed action, suit, investigation or proceeding, whether civil, criminal, administrative or investigative in nature, in each case arising from, caused by or in connection with the actions reasonably taken by them in reliance on any inaccuracy of any statement made by the Exercising Bank or Transferring Bank in the Put Notice or Call Notice, as the case may be. 9 7. Notices. All notices hereunder shall be deemed to be sufficiently given or made if telecopied or delivered against receipt to the party to whom it is to be given at the following address (or such other address as the party shall have furnished in writing according to this Section): (a) If to Rabobank, at with a copy to Rabobank Nederland Rabobank Nederland 245 Park Avenue 245 Park Avenue New York, NY 10167 New York, NY 10167 Attn: Joanna M. Solowski, VP Attn: Corporate Services Dept. Fax No.: 212-818-0233 Fax No.: 212-818-0233 (b) If to Prudential, at with a copy to The PrudentialInsurance Company The Prudential of America Insurance Company of America 801 Warrenville Road 201 S. Orange Ave. Suite 600 Suite 795 Lisle, IL 60532 Orlando, FL 32803 Fax No.: 708-810-0764 Fax No.:407-649-4963 (c) If to the Borrower, at with a copy to Cuddy International Corporation J. Rob Collins, Esq. 465 Richmond Street, Suite 600 Blake, Cassels & Graydon London, Ontario Canada N6A 5P4 Suite 2800, Box 25 Attn: President Commerce Court West Fax No.: 519-679-9355 Toronto, Canada M5L1A9 Fax No.:416-863-2174 (d) If to the Issuer, at with a copy to WLR Foods, Inc. John W. Flora, Esq. P.O. Box 7000 Wharton, Aldhizer & Weaver Broadway, VA 22815 100 S. Mason Street Attn: President P.O. Box 809 Fax No.: 703- 896-0498 Harrisonburg, VA 22801 Fax No.:703-434-5502 (e) If to the Trustee, at Crestar Bank Corporate Trust Administration 10th Floor 919 E. Main Street Richmond, VA 23219 Fax No.: 804-782-7855 10 8. Specific Performance. The parties hereto agree that irreparable damage would occur in the event any provision of this Agreement were not performed in accordance with the terms hereof and that the parties shall be entitled to specific performance of the terms hereof, in addition to any other remedy at law or equity. 9. Modification. No modification of this Agreement shall be effective unless in writing and signed by the parties hereto. 10. Successors and Assigns. This Agreement shall bind and inure to the benefit of the parties hereto and their respective heirs, personal representatives, successors and permitted assigns. 11. Severability of Provisions. If any provision or any portion of any provision of this Agreement or the application of any such provision or any portion thereof to any person or circumstance, shall be held invalid or unenforceable, the remaining portion of such provision and the remaining provisions or portion of such provisions shall not be affected thereby. 12. Governing Law. This Agreement shall be construed and applied in accordance with, and the respective rights, obligations and remedies of the parties hereto shall be governed in all respects by, the laws of the Commonwealth of Virginia. 13. Captions. All Section headings or titles are included in this Agreement for convenient reference only, and shall not affect the interpretation, meaning or applications of the provisions of this Agreement or otherwise affect the terms hereof. 14. Counterparts. This Agreement may be executed by the parties hereto in separate counterparts, each of which when so executed shall be an original, but all such counterparts shall together constitute one and the same instrument. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their respective officers hereunto duly authorized as of the day and year first above written. CUDDY FARMS, INC., a North Carolina corporation By_____________________________________ Its_____________________________________ COOPERATIEVE CENTRALE RAIFFEISEN- BOERENLEENBANK B.A., "RABOBANK NEDERLAND, NEW YORK BRANCH" By_____________________________________ Its_____________________________________ 11 By_____________________________________ Its_____________________________________ THE PRUDENTIAL INSURANCE COMPANY OF AMERICA By______________________________________ Its______________________________________ WLR FOODS, INC., a Virginia corporation By_____________________________________ Its_____________________________________ CRESTAR BANK By_____________________________________ Its_____________________________________ 20618 12 EXHIBIT B PUT NOTICE The undersigned hereby certifies to WLR Foods, Inc. ("WLR Foods") and Crestar Bank (the "Trustee") as follows: 1. The undersigned is a party to certain loan agreement(s) with Cuddy Farms, Inc. (the "Borrower"), and ancillary documents related thereto, including a pledge agreement by which certain shares of WLR Foods' common stock are pledged as security for the payment and performance of all obligations of the Borrower under such loan agreement(s). 2. The shares of WLR Foods' common stock so pledged are held by the Trustee pursuant to a Voting Trust Agreement (the "Voting Trust Agreement") dated August 29, 1994, by and among WLR Foods, the Borrower, and the Trustee. 3. A default, as defined by the pledge agreement between the Borrower and the undersigned, has occurred, applicable cure periods have expired and a prior written notice of default has been timely given to WLR Foods; provided, however, that if prior written notice of default has not been timely given, the twenty (20)-day period described in Section 1 of a Put and Call Agreement described in paragraph 5 below shall be extended for those number of days the notice of default is late. 4. Pursuant to the undersigned's pledge agreement with the Borrower, the undersigned is entitled to realize upon the shares of WLR Foods' common stock held by the Trustee pursuant to the Voting Trust Agreement, subject only to the terms of such Voting Trust Agreement and a Put and Call Agreement described in paragraph 5 below. 5. Pursuant to the terms of a Put and Call Agreement dated August 29, 1994 by and among WLR Foods, the Borrower, the Trustee, Cooperatieve Centrale Raiffeisen-Boerenleenbank B.A., "Rabobank Nederland, New York Branch" and The Prudential Insurance Company of America, the undersigned is entitled to exercise a put right by which the WLR Foods is obligated to purchase certain voting trust certificates held by the undersigned. 6. The undersigned hereby delivers concurrently to each of WLR Foods and the Trustee this notice for the purpose of exercising its put right under the Put and Call Agreement. The settlement date is set for twenty (20) business days following the date of this notice (or longer, if extended under paragraph 3 above); namely [date], at the offices of the Trustee. 7. In the event that timely settlement of the undersigned's put right is not made by WLR Foods, this notice shall also constitute direction to the Trustee immediately to release the shares of WLR Foods' common stock held by it under the Voting Trust Agreement, free and clear of the Voting Trust Agreement. 8. A copy of this notice has been delivered to [Non-Exercising Bank] concurrently with the delivery hereof to WLR Foods and Crestar Bank. 13 IN WITNESS WHEREOF, the undersigned has caused this notice to be signed by a duly authorized officer as of this [date] which constitutes the date of this notice. [EXERCISING BANK] By____________________________________ Its____________________________________ 20621 14 EXHIBIT C CALL NOTICE The undersigned hereby certifies to WLR Foods, Inc. ("WLR Foods") as follows: 1. The undersigned is a party to certain loan agreement(s) with Cuddy Farms, Inc. (the "Borrower"), and ancillary documents related thereto, including a pledge agreement by which certain voting trust certificates issued pursuant to a Voting Trust Agreement (the "Voting Trust Agreement") dated August 29, 1994, by and among WLR Foods, the Borrower, and the Crestar Bank, Trustee are pledged as security for the payment and performance of all obligations of the Borrower under such loan agreement(s). 2. A default, as defined by the pledge agreement between the Borrower and the undersigned, has occurred, applicable cure periods have expired and a prior written notice of default has been timely given to WLR Foods; provided, however, that if prior written notice of default has not been timely given, the twenty (20)-day period described in Section 4 of a Put and Call Agreement described in paragraph 4 below shall be extended for those number of days the notice of default is late. 3. Pursuant to the undersigned's pledge agreement with the Borrower, the undersigned is entitled to realize upon the voting trust certificates, subject only to the terms of such Voting Trust Agreement and a Put Agreement described in paragraph 4 below. 4. Pursuant to the terms of a Put and Call Agreement dated August 29, 1994 by and among WLR Foods, the Borrower, the Trustee, Cooperatieve Centrale Raiffeisen- Boerenleenbank B.A., "Rabobank Nederland, New York Branch" and The Prudential Insurance Company of America, the undersigned is required to give this notice of its intent to transfer the Voting Trust Certificates, which notice gives rise to the right of WLR Foods to purchase the Voting Trust Certificates at any time hereafter until termination of the Put and Call Agreement. 5. The undersigned intends to transfer [_______] Voting Trust Certificates to [identify transferee] expressly subject to WLR Foods' right to call such Voting Trust Certificates arising hereby, which call shall be effected by WLR Foods' execution of the "Exercise of Call" section of this Call Notice, below. 6. A copy of this notice has been delivered to [Non-Transferring Bank] concurrently with the delivery hereof to WLR Foods and Crestar Bank. IN WITNESS WHEREOF, the undersigned has caused this notice to be signed by a duly authorized officer as of this [date] which constitutes the date of this notice. [TRANSFERRING BANK] By____________________________________ Its____________________________________ _____________________________________________________________________ 15 EXERCISE OF CALL WLR Foods hereby exercises its right to call the above-referenced Voting Trust Certificates under the Put and Call Agreement. The settlement date is set for twenty (20) business days (or longer, if extended under paragraph 2 above) following the date of delivery of this Call Notice to WLR Foods; namely [date], at the offices of the [name]. WLR FOODS, INC. __________________ By____________________________________ Date Its____________________________________ ______________________________________________________________________ 20620 EX-99.1 3 16 Exhibit 4.2 NON-COMPETITION AND NAME USE AGREEMENT THIS NONCOMPETITION AND NAME USE AGREEMENT is made and entered into this August 29, 1994, by and among WAMPLER-LONGACRE, INC., a Virginia corporation (Wampler-Longacre) and CUDDY FARMS, INC., a North Carolina corporation (Cuddy), CUDDY INTERNATIONAL CORPORATION, a corporation incorporated under the laws of Ontario, A.M.C. Family Holdings, Ltd., a corporation incorporated under the laws of Ontario, and A.M. Cuddy (collectively "Cuddy Group"). RECITALS A. Cuddy has heretofore operated two divisions. The farm division is a major supplier of turkey eggs and poults with facilities in North Carolina, South Carolina, Iowa, Missouri, Ohio, Virginia and Minnesota (the Poult Business). The food division is an integrated turkey processor with three turkey processing facilities, a feedmill, growout operations, and an interest in a cold storage distribution center, all located in North Carolina (the Business). B. Wampler-Longacre has today purchased substantially all of the Business. C. Wampler-Longacre desires to pay Cuddy, on behalf of the Cuddy Group, a certain sum to protect itself and its affiliates from competition and control contests by the Cuddy Group and for certain rights, described herein, to the use of the "Cuddy" name. NOW, THEREFORE, in consideration of the premises and the mutual covenants and agreements contained herein, and for other good and valuable consideration the receipt and sufficiency thereof is hereby acknowledged, the parties represent and agree as follows: 1. Covenant Not To Compete. The Cuddy Group jointly and severally agrees that it will not engage in, directly or indirectly, either themselves or for any other person, partnership, corporation, company or entity, or participate (as defined below) in any enterprise involved in the businesses of poultry production for processing, further processing or marketing of processed poultry products (specifically excluded is poultry production of eggs and poults and the marketing of such products) (the Protected Business), in the geographical area in the continental United States in which Wampler-Longacre or its affiliates currently conducts its business, including without limitation, Virginia, West Virginia, North Carolina and Pennsylvania, for a period of four (4) years from the date hereof. As used herein, the term "participate" means lending one's name to, acting as consultant or advisor to, or acquiring any direct or indirect interest in any enterprise, whether as stockholder, partner, officer, director, employee or otherwise (other than by ownership of less than two percent of the stock of a publicly-held corporation and ownership in WLR Foods, Inc.). The Cuddy Group agrees that this covenant is reasonable in its scope, geographical area and duration. However, Cuddy International Corporation and its affiliates will continue to be permitted to provide poultry products for distribution in the United States, but only to McDonalds, Delta Daily Foods and for distribution under three private labels, namely President Choice Products, Master Choice Products and Sensational Brand Products. 2. Covenant of No Contest. The Cuddy Group agrees that during the period that common stock of WLR Foods, Inc. acquired today by Cuddy in exchange for the Business is subject to voting and transfer restrictions as set forth in Section 13.4 of the Asset Purchase 17 Agreement dated the date hereof, the Cuddy Group, jointly and severally, agrees none of them, nor any of their affiliates will, directly or indirectly, without in each instance the prior written consent of WLR Foods, Inc., parent corporation of Wampler-Longacre, expressed in a resolution duly adopted by the Board of Directors of WLR Foods, Inc.: (a) solicit any proxies, under any circumstances, for any matter whatsoever with respect to any class of capital stock or other securities of WLR Foods, Inc. which is then entitled to vote in the election of directors or on any other matter (Voting Securities), or become a "participant" in any "election contest" relating to the election of directors of WLR Foods Inc. (as such terms are used in Rule 14a-11 of Regulations 14A under the Securities Exchange Act of 1934, as amended, or to seek to advise or influence any person with respect to the voting of any Voting Securities of WLR Foods, Inc. on any matter whatsoever; (b) act together with any other person for the purpose of acquiring, holding, voting or disposing of any Voting Securities of WLR Foods, Inc. or any options or other rights to acquire any such securities; (c) purchase or otherwise acquire, or offer, propose or agree to purchase or otherwise acquire, or advise, encourage or assist in the acquisition of, any Voting Securities of WLR Foods, Inc. or options or rights to acquire any such securities; or (d) act alone or together with any person to acquire, or propose a business combination with, WLR Foods, Inc. 3. Use of "Cuddy" Name. Cuddy hereby grants Wampler-Longacre a five (5) year exclusive right and license to use the name or mark "Cuddy," alone or in combination with other names or marks, within the continental United States in connection solely with the Protected Business. This five (5)-year term shall terminate on the fifth anniversary of this Agreement but shall thereafter be renewable upon such terms and conditions as Wampler-Longacre and Cuddy may mutually agree. In addition, Cuddy agrees to allow Wampler-Longacre to license perpetually, or acquire a trademark for "Masterpiece" and "Heritage" in the continental United States. 4. Cuddy Group Rights. Except as set out in Paragraph 3, the Cuddy Group shall retain all rights to the "Cuddy" name. 5. Other Users. Cuddy warrants and represents that it has authorized no other person or entity to use the name "Cuddy" or any similar name alone or in conjunction with any other word or symbol for any purpose in the continental United States and that, to its knowledge, no other person or entity is using in the continental United States, without authorization, the name "Cuddy" or any similar name for any purpose other than the corporate name Cuddy Farms, Inc. as used in conjunction with the Poult Business. 6. Payment. In consideration hereof Wampler-Longacre shall pay Cuddy, by certified or bank cashier's check or other current funds acceptable to Cuddy, the sum of Five Hundred Thousand Dollars ($500,000) payable upon execution hereof. The amount of payment, if any, to be made to D. Bruce Cuddy pursuant to a substantially similar, but separate, agreement shall reduce this sum. 7. Remedies. The parties acknowledge that a breach of this Agreement by any party will result in substantial and irreparable injury to the other party. If any of the provisions herein are violated, in whole or in part, Wampler-Longacre shall be entitled, upon application to any court of proper jurisdiction as herein agreed, 18 to restrain and enjoin the Cuddy Group, or any one of them, from such violation, and to recover cash and reasonable attorneys' fees in connection with such action, without prejudice to any other remedies Wampler-Longacre may have at law or in equity. 8. Reformation and Severability. In the event that any provision herein should ever be deemed to exceed the time, geographic, occupational or use limitations permitted by law, the parties agree that such provisions shall be and are reformed to the maximum time, geographic, occupation and use limitations permitted by applicable law. Such determination shall not affect the remaining provisions of this Agreement, all of which shall remain in full force and effect. 9. 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. 10. Governing Law, Venue. This Agreement shall be governed and construed in accordance with the laws of the Commonwealth of Virginia applicable to agreements made and to be performed entirely within the Commonwealth. The Circuit Court of the County of Rockingham, Virginia or the United States District Court for the Western District of Virginia, Harrisonburg Division, as appropriate, shall have exclusive jurisdiction and venue over any claims or causes of action concerning this Agreement, except that any claim asserted against Cuddy International Corporation, A.M.C. Family Holdings, Ltd. and A.M. Cuddy shall be pursued only in Ontario, Canada courts. 11. Waiver. A waiver by any party of a breach of any provision of this Agreement shall not operate as, nor be construed as, a waiver of any subsequent breach thereof. IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written. WAMPLER-LONGACRE, INC. By:__________________________________ Its: President CUDDY FARMS, INC. By:___________________________________ Its: Executive Vice President CUDDY INTERNATIONAL CORPORATION By:__________________________________ Its:_______________________________ A.M.C. FAMILY HOLDINGS, LTD. 19 By:____________________________________ Its:___________________________________ ______________________________________ A. M. CUDDY JWF/mc/17939 EX-99.1 4 20 Exhibit 4.3 REGISTRATION RIGHTS AGREEMENT THIS REGISTRATION RIGHTS AGREEMENT is made and entered in to this 29th day of August, by and between WLR Foods, Inc., a Virginia corporation (including its successors, the "Issuer"), and Cuddy Farms, Inc., a North Carolina corporation, ("Cuddy") (Cuddy and any transferee as permitted in Section 2.2 hereof being the "Holder"). RECITALS A. The Issuer and Cuddy are parties to an Asset Purchase Agreement dated July 27, 1994 (the "Purchase Agreement"), which Purchase Agreement provides, in part, for the issuance of shares of common stock of the Issuer (the "Common Stock") to Cuddy. B. The Issuer, as an inducement to Cuddy to enter into the Purchase Agreement, has agreed to provide for the registration under the Securities Act of 1933, as amended (the "Securities Act"), of shares of Common Stock to be issued under the Purchase Agreement (the "Shares") under the circumstances set forth herein. NOW, THEREFORE, in consideration of the premises and the mutual covenants and agreements set forth herein, the parties agree as follows: ARTICLE I REGISTRATION RIGHTS Section 1.1. Certain Definitions. (a) As used herein, the term "Commission" means the United States Securities and Exchange Commission. (b) As used herein, the term "Public Offering" means any underwritten public offering of securities of the Issuer pursuant to an effective registration statement under the Securities Act. (c) As used herein, the term "Registrable Securities" means any (i) Shares and (ii) securities issued or issuable with respect to the Shares by way of a stock dividend or stock split or in connection with a combination of shares, recapitalization, merger, consolidation, or other reorganization. As to any particular Registrable Securities, such securities will cease to be Registrable Securities when they (i) have been effectively registered under the Securities Act and disposed of in accordance with the registration statement covering them, (ii) have been transferred pursuant to Rule 144 (or any similar provision then in force) under the Securities Act, unless such securities are held at such time by a holder of Registrable Securities who may be deemed an "underwriter" or "affiliate" with respect to the Company (as those terms are defined under the Securities Act), (iii) constitute less than one percent (1%) of the total outstanding securities of the same class as the Registrable Securities, (iv) except as provided in Section 2.2, have been transferred, directly or indirectly, from the Holder to any other person without the express written consent of the Issuer. (d) As used herein, the term "Incidental Registrable Securities" means (i) Registrable Securities and (ii) other securities of the Issuer entitled to registration rights. Section 1.2. Registration on Request of Holders. 21 (a) Upon the written request at any time after the earlier of (i) the expiration of the voting and transfer restrictions applicable to the Shares by virtue of Section 13 of the Purchase Agreement, or (ii) 150 days prior to the fourth anniversary of the Closing Date under the Purchase Agreement (the "Registration Date") by the Holder requesting that the Issuer effect the registration under the Securities Act of all or part of its Registrable Securities, the Issuer will promptly use its best efforts to effect, as expeditiously as possible, but in no event prior to the expiration of the above-referenced restrictions, the registration under the Securities Act of (i) the Registrable Securities which the Issuer has been requested to register by the Holder; and (ii) all other Incidental Registrable Securities which the Issuer has been requested to register by any other person having incidental registration rights from the Issuer or other securities of the Issuer which the Issuer desires to register, all to the extent necessary to permit the disposition of the Registrable Securities so to be registered, provided that (A) the Issuer shall not be obligated to file a registration statement relating to a registration request under this Section 1.2(a) within a period of 180 days after the effective date of any other registration statement filed by the Issuer, other than any registration statement filed by the Issuer (1) in connection with any employee benefit or similar plan of the Issuer, (2) in connection with an acquisition by the Issuer of another person or (3) relating to any non- convertible debt securities of the Issuer to be offered and sold by the Issuer on a delayed or continuous basis pursuant to Rule 415 under the Securities Act ("Rule 415"); (B) the Issuer shall not be obligated to effect more than two registrations pursuant to this Section 1.2(a), each of which may not be requested earlier than 180 days after the consummation of an offering effected pursuant to demand registration hereunder; and (C) such registration may not relate to an offering of Registrable Securities on a delayed or continuous basis pursuant to Rule 415 and (D) may be delayed by the Issuer for up to 135 days if the Issuer determines that the filing of the registration statement would require the disclosure of material nonpublic information that is in the best interest of the Issuer to maintain as confidential; provided, however, that, in the event of a delay hereunder, the Holder may withdraw its request which, if withdrawn, will not be considered one of the demand registrations requested pursuant to Section 1.2 hereof. (b) Expenses. The Issuer will pay all registration expenses in connection with each registration of Registrable Securities pursuant to this Section 1.2, and the Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of the Registrable Securities pursuant to a registration statement effected pursuant to this Section 1.2. (c) Effective Registration Statement. A registration requested pursuant to this Section 1.2 shall not be deemed to have been effected unless the registration statement relating thereto (i) has become effective under the Securities Act and any of the Registrable Securities of the Holder have actually been sold thereunder and (ii) has remained effective for a period of at least 90 days (or such shorter period in which all Registrable Securities registered thereunder have actually been sold thereunder); provided that. if after any registration statement requested pursuant to this Section 1.2 becomes effective, such registration statement is interfered with by any stop order, injunction or other order or requirement of the Commission or other governmental agency or court solely due to the 22 actions or omissions to act of the Issuer, such registration statement shall not be considered one of the registrations which may be requested pursuant to Section 1.2 hereof. (d) Selection of Underwriters. If any requested registration pursuant to this Section 1.2 is in the form of a Public Offering, then (i) all holders of Incidental Registrable Securities to be included in such registration requested shall sell their Incidental Registrable Securities to the underwriters on the same terms and conditions and (ii) the Holder shall have the right to select the managing underwriter that will administer the offering with the consent of the Issuer, which consent shall not be unreasonably withheld or delayed. (e) Pro-Rata Participation in Requested Registrations. If a requested registration pursuant to this Section 1.2 involves a Public Offering and the managing underwriter shall advise the Issuer that, in such underwriter's reasonable view, the number of securities (including all Registrable Securities) requested to be included in such registration exceeds the largest number of securities (the "Maximum Offering Size") which can be sold without an adverse effect on the terms of the proposed offering (including, without limitation, the price at which such securities can be sold), the Issuer will include in such registration, in the order listed below, up to the Maximum Offering Size: First, Registrable Securities of the Holder. Second, Incidental Registrable Securities proposed to be sold by any other holder requesting registration allocated pro-rata among such holders based on the relative number of Incidental Registrable Securities proposed to be sold in the proposed offering by each such holder or on such other basis as Issuer may have agreed with such holders. Third, securities of the Issuer proposed to be sold by the Issuer. Section 1.3 Incidental Registration. (a) If the Issuer at any time after the Registration Date proposes to register any securities of the Issuer under the Securities Act (other than a registration (i) on Form S-8 or S-4 or any successor or similar forms, (ii) relating to securities of the Issuer issuable upon exercise of employee stock options or in connection with any employee or grower benefit or similar plan of the Issuer or any of its subsidiaries, or (iii) in connection with a direct or indirect acquisition by the Issuer or any of its subsidiaries of another company) in a manner which would permit registration of Registrable Securities for sale to the public under the Securities Act, the Issuer may, but shall not be required to, give prompt written notice to all (but not less than all) holders of Incidental Registrable Securities of its intention to do so (including its intended method of disposition) and of such holders' rights in the event the holders are notified, under this Section 1.3. Any such notice, if given, shall offer the Holder the opportunity to include in such registration statements such number of Registrable Securities as the Holder may request. Upon the written request of the Holder made within 20 days after the giving of such written notice by the Issuer (which request shall specify the number of Incidental Registrable Securities intended to be disposed of by the Holder), the Issuer will use its best efforts 23 to effect the registration under the Securities Act of all Incidental Registrable Securities which the Issuer has been so requested to register by the holders thereof, to the extent requisite to permit the disposition of the Incidental Registrable Securities so to be registered in accordance with the Issuer's intended method of disposition; provided that (i) if such registration involves a Public Offering, all holders of Incidental Registrable Securities requesting to be included in the Issuer's registration must sell their Incidental Registrable Securities to the underwriters selected by the Issuer on the same terms and conditions as apply to the Issuer and (ii) if, at any time after giving written notice of its intention to register any securities pursuant to this Section 1.3 and prior to the effective date of the registration, the Issuer shall determine for any reason not to register any securities, the Issuer shall give written notice to the Holder of Incidental Registrable Securities and thereupon shall be relieved of its obligation to register any Incidental Registrable Securities in connection with such registration. The Issuer will pay all registration expenses in connection with each registration of Incidental Registrable Securities requested pursuant to this Section 1.3, and the Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of the Holder's Incidental Registrable Securities pursuant to a registration statement effected pursuant to this Section 1.3. (b) Priority in Incidental Registrations If a registration pursuant to this Section 1.3 involves a Public Offering and the managing underwriter advises the Issuer that, in its view, the number of securities (including all Registrable Securities) which the Issuer, the Holder and any other persons intend to include in such registration exceeds the Maximum Offering Size, the Issuer will include in such registration, in the following priority, up to the Maximum Offering Size: First, all the securities of the Issuer proposed to be included by the Issuer and by any person exercising a demand registration right; and Second, Incidental Registrable Securities requested to be included in such registration by the holders thereof allocated pro-rata among all holders based on the relative number of Incidental Registrable Securities each holder proposed to be sold in the proposed offering. Section 1.4. Registration Procedures. Whenever the Holder requests that any Registrable Securities be registered pursuant to Sections 1.2 or 1.3 of this Agreement, the Issuer will, subject to the provisions of such Sections, use its best efforts to effect the registration and the sale of such Registrable Securities in accordance with the intended method of disposition thereof as promptly as reasonably practicable, and in connection with any such request: (a) The Issuer will as promptly as reasonably practicable prepare and file with the Commission a registration statement on any form for which the Issuer then qualifies or which counsel for the Issuer will deem appropriate and which form shall be available for the sale of the Incidental Registrable Securities to be registered thereunder in accordance with the intended method of distribution thereof, and use its best efforts to cause such filed registration statement to become and remain effective (including by the filing of amendments or supplements to such registration statement) for a period 24 of not less than 90 days (or such shorter period in which all Registrable Securities registered thereunder have actually been sold thereunder). (b) The Issuer will, prior to filing a registration statement or prospectus or any amendment or supplement thereto, furnish to the Holder and to each underwriter, if any, and to each person who may be deemed to be a controlling person under Section 15 of the Securities Act (a "Controlling Person") of each of the foregoing copies of such registration statement as proposed to be filed, and thereafter the Issuer will furnish to the Holder, each underwriter and each Controlling Person of each of the foregoing, if any, such number of copies of such registration statement, each amendment and supplement thereto (in each case including all exhibits thereto and documents incorporated by reference therein), the prospectus included in such registration statement (including each preliminary prospectus) and such other documents as the Holder, underwriter or Controlling Person may reasonably request in order to facilitate the disposition of the Registrable Securities. (c) After the filing of the registration statement, the Issuer will promptly notify the Holder, each underwriter, if any, and each Controlling Person of each of the foregoing of any stop order issued or threatened by the Commission and take all reasonable actions required to prevent the entry of such stop order or to remove it if entered. (d) The Issuer will use its best efforts to (i) register or qualify the Registrable Securities under such other securities or blue sky laws of such jurisdictions in the United States as the Holder reasonably (in light of such Holder's intended plan of distribution) requests and (ii) cause such Registrable Securities to be registered with or approved by such other governmental agencies or authorities, if any, as may be necessary by virtue of the business and operations of the Issuer and do any and all other acts and things that may be reasonably necessary or advisable to enable the Holder to consummate the disposition of the Registrable Securities; provided that the Issuer will not be required to (A) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this paragraph (d), (B) subject itself to taxation in any such jurisdiction or (C) consent to general service of process in any such jurisdiction. (e) The Issuer will immediately notify the Holder, each underwriter, if any, and each Controlling Person of each of the foregoing, at any time when a prospectus relating thereto is required to be delivered under the Securities Act, of the occurrence of an event requiring the preparation of a supplement or amendment to such prospectus so that, as thereafter delivered to the purchasers of the Registrable Securities, such prospectus will not contain an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and promptly make available to the Holder, underwriter and Controlling Person any such supplement or amendment; provided, however, that, if such supplement or amendment would require the disclosure of nonpublic information that is in the best interests of the Issuer to be maintain as confidential, the Issuer may delay such supplement or amendment for up to 135 days except: (i) with respect to sales made but not closed pursuant to the registration 25 statement on or before the date of receipt of notice by the Holder of the Issuer's intention to delay; and (ii) as to any delay extending for more than two weeks, the Holder may elect to terminate the registration statement and such registration statement shall not be considered one of the registrations which may be requested pursuant to Section 1.2 hereof. (f) The Issuer will enter into customary agreements (including an underwriting agreement in customary form) and take such other actions as are customary and are reasonably required in order to expedite or facilitate the disposition of the Registrable Securities. (g) The Issuer will make available for inspection by the Holder, any underwriter participating in any disposition pursuant to such registration statement and any attorney, accountant or other professional retained by the Holder or underwriter (collectively, the "Inspectors"), and any Controlling Person of any of the foregoing such financial and other records, pertinent corporate documents and properties of the Issuer (collectively, the "Records") as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Issuer's officers, directors and employees to supply all information reasonably requested by any Inspectors in connection with such registration statement. Each Holder shall be given adequate opportunity to comment on such registration statement and to request the insertion therein of material furnished to the Issuer in writing which in the reasonable judgment of such Holder upon the advice of counsel experienced in securities laws should be included in order to avoid a violation of applicable law and to request the deletion of its name from the registration statement if the materials furnished are not included in such registration statement, and, if such registration statement is the Holder's second demand registration statement under Section 1.2 hereof, such registration statement shall not be considered a demand registration statement. Records which the Issuer determines, in good faith, to be confidential and which it notifies the Inspectors are confidential shall not be disclosed by the Inspectors unless the release of such records is ordered pursuant to a subpoena or other order from a court of competent jurisdiction; provided, however, that if the Holder reasonably believes that disclosure of such Records is necessary to avoid or correct a misstatement or omission in such registration statement and the Issuer declines to make such disclosure, the Holder may withdraw from participation in the registration and, if, such registration statement is the Holder's second demand registration statement under Section 1.2 hereof, such registration statement shall not be considered a demand registration statement. The Holder agrees that information obtained by it as a result of such inspections shall be kept confidential by it and shall not be used by it except in connection with the discharge of its due diligence in connection with a registration unless and until such is made generally available to the public otherwise than through disclosure by the Holder or Inspectors. The Holder further agrees that it will, upon learning that disclosure of such Records is sought in a court of competent jurisdiction, give notice to the Issuer and allow the Issuer, at its expense, to undertake appropriate action to prevent disclosure of the Records deemed confidential. (h) The Issuer will furnish to the Holder, each underwriter, if any, and each Controlling Person of each of the foregoing a signed counterpart, addressed to such Holder and Controlling Person and underwriter, if any, of (i) an opinion or opinions of counsel to the 26 Issuer and (ii) a comfort letter or comfort letters from the Issuer's independent public accountants, each in customary form and covering such matters of the type customarily covered by opinions or comfort letters, as the case may be, as holders of a majority of the Incidental Registrable Securities included in such registration statement or the managing underwriter therefor reasonably requests provided the same are customarily provided in similar transactions at such time. (i) The Issuer will otherwise use its best efforts to comply with all applicable rules and regulations of the Commission, and make available to its security holders, as soon as reasonably practicable, an earnings statement covering a period of 12 months, beginning within three months after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and the rules and regulations thereunder. (j) The Issuer will use its best efforts to cause all such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Issuer are then listed. (k) The Issuer will provide a transfer agent for all such Registrable Securities not later than the effective date of such registration statement. The Issuer may require the Holder to promptly furnish in writing to the Issuer such information regarding the distribution of the Registrable Securities as the Issuer may from time to time reasonably request and such other information as may be legally required in connection with such registration. The Holder agrees that, upon receipt of any notice from the Issuer of the happening of any event of the kind described in clause (e), the Holder will forthwith discontinue disposition of Registrable Securities pursuant to the registration statement covering such Registrable Securities until the Holder's receipt of the copies of the supplemented or amended prospectus contemplated by clause (e), and, if so directed by the Issuer, the Holder will deliver to the Issuer all copies, other than permanent file copies then in Holder's possession, of the most recent prospectus covering such Registrable Securities at the time of receipt of such notice. If the Issuer shall give such notice, the Issuer shall extend the period during which such registration statement shall be maintained effective (including the period referred to in clause (a)) by the number of days during the period from and including the date of the giving of notice pursuant to clause (e) to the date when the issuer shall make available to the Holder a prospectus supplemented or amended to conform with the requirements of clause (e). Section 1.5 Indemnification by the Issuer. The Issuer agrees to indemnify and hold harmless the Holder, its officers, directors, employees, agents, shareholders, partners, legal counsel, and accountants and each Controlling Person of each of the foregoing from and against any and all losses, claims, damages, liabilities and expenses (including reasonable attorneys' fees and expenses) caused by any untrue statement or alleged untrue statement of a material fact contained in any registration statement or prospectus relating to the Registrable Securities (as amended or supplemented thereto) or any preliminary prospectus or blue sky application, or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not 27 misleading, except insofar as such losses, claims, damages, liabilities or expenses are caused by any such untrue statement or omission or alleged untrue statement or omission based upon information furnished in writing to the Issuer by the Holder or on such Holder's behalf expressly for use therein; provided that with respect to any untrue statement or omission or alleged untrue statement or omission made in any preliminary prospectus, or in any prospectus, as the case may be, the indemnity agreement contained in this paragraph shall not apply to the extent that any such loss, claim, damage, liability or expense results from the fact that a current copy of the prospectus (or, in the case of a prospectus, the prospectus as amended or supplemented) was not sent or given to the person asserting any such loss, claim, damage, liability or expense at or prior to the written confirmation of the sale of the Registrable Securities concerned to such person if it is determined that the Issuer has provided such prospectus and it was the responsibility of such Holder to provide such person with a current copy of the prospectus (or such amended or supplemented prospectus, as the case may be) and such current copy of the prospectus (or such amended or supplemented prospectus, as the case may be) would have cured the defect giving rise to such loss, claim, damage, liability or expense. The Issuer also agrees to indemnify any underwriters of the Registrable Securities, their officers and directors and each Controlling Person of such underwriters on substantially the same basis as that of the indemnification of the Holder provided in this Section 1.5. Section 1.6. Indemnification by Holder of Registrable Securities and Underwriters. The Holder agrees to indemnify and hold harmless the Issuer, its officers, directors, employees, agents, shareholders, partners, legal counsel, and accountants and each Controlling Person of the Issuer to the same extent as the foregoing indemnity from the Issuer to the Holder, but only (i) with respect to information furnished in writing by the Holder or on the Holder's behalf, in each case, only with respect to information concerning the Holder, expressly for use in any registration statement or prospectus relating to the Registrable Securities, or any amendment or supplement thereto, or any preliminary prospectus or (ii) to the extent that any loss, claim, damage, liability or expense described in Section 1.5 results from the fact that a current copy of the prospectus (or the prospectus as amended or supplemented) was not sent or given to the person asserting any such loss claim, damage, liability or expense at or prior to the written confirmation of the sale of the Registrable Securities concerned to such person if it is determined that it was the responsibility of the Holder to provide such person with a current copy of the prospectus (or such amended or supplemented prospectus, as the case may be) and such current copy of the prospectus (or such amended or supplemented prospectus, as the case may be) would have cured the defect giving rise to such loss, claim, damage, liability or expense. The Holder also agrees to indemnify and hold harmless underwriters of the Registrable Securities, their officers and directors and each Controlling Person of such underwriters on substantially the same basis as that of the indemnification of the Issuer provided in this Section 1.6 As a condition to including Registrable Securities in any registration statement filed in accordance with Section 1.2 or 1.3 hereof involving a Public Offering, the Issuer may require that it shall have received an undertaking reasonably satisfactory to it from any underwriter to indemnify and hold it harmless to the extent customarily provided by underwriters 28 with respect to similar securities. Notwithstanding the provisions of this Section 1.6, the Holder shall not be required to pay any amount under this Section 1.6 in excess of the amount by which the total price at which the Registrable Securities were sold to the public exceeds the amount of any damages which the Holder has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. Section 1.7. Conduct of Indemnification Proceedings. In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to Section 1.5 or 1.6 hereof, such person (an "Indemnified Party") shall promptly notify the person against whom such indemnity may be sought (the "Indemnifying Party") in writing and the Indemnifying Party shall assume the defense thereof, including the employment of counsel reasonably satisfactory to such Indemnified Party, and shall assume the payment of all fees and expenses; provided that the failure of any Indemnified Party so to notify the Indemnifying Party shall not relieve the Indemnifying Party of its obligations under these indemnification provisions, except to the extent that the Indemnifying Party is materially prejudiced by such failure to notify, or from any liabilities it may have to any Indemnified Party otherwise than under these indemnification provisions. In any such proceeding, any Indemnified Party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party unless (i) the Indemnifying Party and the Indemnified Party shall have mutually agreed to the retention of such counsel or (ii) in the reasonable judgment of such Indemnified Party representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood that the Indemnifying Party shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the reasonable fees and expenses of more than one separate firm of attorneys (in addition to any local counsel) at any time for all such Indemnified Parties, and that all such fees and expenses shall be reimbursed as they are incurred. In the case of any such separate firm for the Indemnified Parties, such firm shall be designated in writing by the Indemnified Parties. The Indemnifying Party shall not be liable for any settlement of any proceeding affected without its written consent, but if settled with such consent, or if there be a final judgment for the plaintiff, the Indemnifying Party shall indemnify and hold harmless such Indemnified Parties from and against any loss or liability (to the extent stated above) by reason of such settlement or judgment. No Indemnifying Party shall, without the prior written consent of the Indemnified Party, effect any settlement of any pending or threatened proceeding in respect of which any Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such Indemnified Party, unless such settlement includes an unconditional release of such Indemnified Party from all liability arising out of such preceding. Section 1.8 Contribution. If the indemnification provided for in this Agreement is unavailable to the Indemnified Parties in respect of any losses, claims, damages, liabilities, or expenses referred to herein, then each such Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall contribute to the amount paid or payable by such Indemnified Party as a result of such losses, claims, damages, liabilities or expenses (i) as between the Issuer and the Holder of 29 Registrable Securities covered by a registration statement on the one hand and the underwriters on the other, in such proportion as is appropriate to reflect the relative benefits received by the Issuer and such Holder on the one hand and the underwriters on the other from the offering of the Registrable Securities, or if such allocation is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits but also the relative fault of the Issuer and such Holder on the one hand and of the underwriters on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations and (ii) as between the Issuer on the one hand and the Holder of Registrable Securities covered by a registration statement on the other, in such proportion as is appropriate to reflect the relative fault of the Issuer and of the Holder in connection with such statements or omissions, as well as any other relevant equitable considerations. The relative benefits received by the Issuer and the Holder on the one hand and the underwriters on the other shall be deemed to be in the same proportion as the total proceeds from the offering (net of underwriting discounts and commissions but before deducting expenses) received by the Issuer and the Holder bear to the total underwriting discounts and commissions received by the underwriters, in each case as set forth in the table on the cover page of the prospectus. The relative fault of the Issuer and the Holder on the one hand and of the underwriters on the other shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Issuer and the Holder or by the underwriters. The relative fault of the Issuer on the one hand and of the Holder on the other shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by such party, and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Issuer and the Holder agree that it would not be just and equitable if contribution pursuant to this Section 1.8 were determined by pro-rata allocation (even if the underwriters were treated as one entity for such purpose) or by any other method of allocation which does not take into account the equitable considerations referred to in the immediately preceding paragraph. The amount paid or payable by an Indemnified Party as a result of the losses, claims, damages, liabilities or expenses referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such Indemnified Party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 1.8, no underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which such underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Holder's obligation to contribute pursuant to this Section 1.8 is several in the proportion that the proceeds of the offering received by such Holder bears to the total proceeds of the offering received by all the 30 holders and not joint. Section 1.9. Participation in Public Offering. No person may participate in any Public Offering hereunder unless such person (a) agrees to sell such person's securities on the basis provided in any underwriting arrangement approved by the persons entitled hereunder to approve such arrangements and (b) completes and executes all questionnaires, powers of attorney, indemnities, underwriting agreements and other documents reasonably under the terms of such underwriting arrangements and this Agreement. Section 1.10. Other Indemnification. Indemnification similar to that specified herein (with appropriate modifications) shall be given by the Issuer and the Holder of Registrable Securities with respect to any required registration or other qualification of securities under any federal or state law or regulation or governmental authority other than the Securities Act. Section 1.11. Rule 144. With a view to making available the benefits of Rule 144 under the Securities Act (or similar rule then in effect) available to the Holder, the Issuer shall: (a) Make and keep available adequate current public information with respect to the Issuer within the meaning of Rule 144(c) under the Securities Act (or similar rule then in effect); (b) Furnish to the Holder forthwith upon request (i) a written statement by the Issuer as to its compliance with the informational requirements of Rule 144(c) (or similar rule then in effect) or (ii) a copy of the most recent annual or quarterly report of the Issuer; and (c) Comply with all other necessary filing and other requirements so as to enable the Holder thereof to sell Registrable Securities under Rule 144 under the Securities Act (or similar rule then in effect). ARTICLE II MISCELLANEOUS Section 2.1. Termination of Agreement. This Agreement shall terminate on the third anniversary after the Registration Date except as to any request for registration pursuant to Section 1.2 hereof from the Holder received by the Issuer on or before such date and as to incidental registration rights pursuant to Section 1.3 hereof with respect to any registration statement filed by the Issuer on or before the such date. Section 2.2. Non-Assignment; Binding Effect. The Holder shall not assign any of its rights under this Agreement without the express written consent of the Issuer; provided, however, that the Holder may assign, without consent, its rights hereunder to Cuddy International Corporation or any wholly-owned subsidiary of Cuddy International Corporation or to a creditor of the Holder to whom the Shares are pledged, mortgaged or otherwise encumbered, all subject to the terms and conditions of a Voting Trust Agreement, regarding the Shares, dated the date hereof. In the event of assignment, the provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns and the Holder's transferees of Registrable Securities who execute and deliver 31 to the Company a counterpart of this Agreement. Section 2.3. Severability. If any provision or provisions of this Agreement shall be held to be invalid, illegal or unenforceable for any reason whatsoever: (a) the validity, legality and enforceability of the remaining provisions of this Agreement (including, without limitation, all portions of any paragraphs of this Agreement containing any such provision held to be invalid, illegal or unenforceable, that are not themselves invalid, illegal or unenforceable) shall not in any way be affected or impaired thereby; and (b) to the fullest extent possible, the provisions of this Agreement (including, without limitation, all portions of any paragraphs of this Agreement containing any such provision held to be invalid, illegal or unenforceable, that are not themselves invalid, illegal or unenforceable) shall be construed so as to give effect to the intent manifested by the provision held invalid, illegal or unenforceable. Section 2.4. Notices. Any notice or other communication required or permitted hereunder shall be in writing and shall be telecopied or delivered against receipt to the party to whom it is to be given at the following address (or such other address as the party shall have furnished in writing in accordance with the provisions of this Section): (a) If to the Issuer: WLR Foods, Inc. P.O. Box 7000 Broadway, VA 22815 Attn: James L. Keeler Fax No.: (703) 896-0498 (b) If to the Holder: c/o Cuddy International Corporation 465 Richmond Street, Suite 600 London, Ontario Canada N6A 5P4 Attn: President Fax No.: (519) 679-9355 Any notice or other communication given by telecopy shall be deemed given on the first business day of the recipient after the date of the telecopy, except for a notice changing a party's address which shall be deemed given at the time of receipt thereof. Section 2.5. Counterparts; Governing Law. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Virginia without giving effect to the conflict of laws. Section 2.6. Modifications, Waivers. This Agreement sets forth the entire understanding of the parties with respect to the subject matter hereof, supersedes all existing agreements between them concerning such subject matter, and may be modified only by a written instrument executed by the Issuer and the Holder. Any waiver by any 32 party of a breach of any provision of this Agreement shall not operate as or be construed to be a waiver of any other breach of such provision or of any breach of any other provision of this Agreement. The failure of a party to insist upon strict adherence to any term of this Agreement on one or more occasions shall not be considered a waiver or deprive that party of the right thereafter to insist upon strict adherence to that term or any other term of this Agreement. Any waiver must be in writing. Section 2.7. Headings. The headings in this Agreement are solely for convenience of reference and shall be given no effect in the construction of interpretation of this Agreement. IN WITNESS WHEREOF, the undersigned have caused this Agreement to be executed as of the day and year first above written. WLR FOODS, INC. By: ________________________________________ Name: James L. Keeler Title: President CUDDY FARMS, INC. By: ________________________________________ Name: Vaughn L. Correll Title: Executive Vice President 17897 EX-99.1 5 42 FOR IMMEDIATE RELEASE Contacts: Delbert L. Seitz Chief Financial Officer 703-896-7001 Gail E. Price, Director of Corporate Communication 703-896-0403 WLR FOODS ANNOUNCES AGREEMENT TO ACQUIRE CUDDY FARMS INC. FOOD DIVISION Broadway, Virginia, July 28, 1994 WLR Foods Inc. (NASDAQ: WLRF) today announced the signing of a definitive agreement to purchase the turkey processing and production assets of Cuddy Farms Inc. in a transaction that will grow WLR Foods into the nation's second largest turkey company. WLR Foods will acquire Cuddy's three turkey processing facilities, a feed mill and growout operations, and Cuddy's interest in a cold storage and distribution facility, all in North Carolina, with additional growout operations in South Carolina. Cuddy Farms is headquartered in North Carolina and is a subsidiary of Canada-headquartered Cuddy International. The purchase price for the Cuddy assets is approximately $73.8 million and includes a five-year non-competition agreement. WLR Foods will pay $43 million in cash and issue common stock for the balance. The transaction will be handled as a purchase of assets, and not as a pooling of interest. The purchase price is subject to certain post-closing adjustments which are not expected to be material. In making the announcement, James L. Keeler, president and chief executive officer of WLR Foods, commented: "WLR Foods has been talking with Cuddy about this acquisition for several years, and we are excited to have Cuddy now join the WLR Foods family and our first-rate turkey division. The board's decision to acquire Cuddy's more 43 WLR FOODS ANNOUNCES AGREEMENT TO ACQUIRE CUDDY FARMS INC. FOOD DIVISION July 28, 1994 Page 2 food division is another example of its commitment to building shareholder value through smart, friendly acquisitions. We are most pleased to expand WLR Foods significantly, especially in further processed foods, without expanding the industry's capacity. With Cuddy, we will become the nation's second largest turkey processor, supplying 11% of the American turkey market sales in the coming year. Building value for WLR Foods shareholders has been our top priority, and we expect a positive impact on earnings per share even before improvements and economies of scale from this acquisition are realized. WLR Foods will achieve a billion dollars in sales in 1995, ahead of our projected management goals." Following the acquisition, Cuddy is expected to own between nine and 10.5% of WLR Foods outstanding common stock. According to terms of the agreement, Cuddy's stock will be voted with recommendations of WLR Foods board of directors for four years unless there is an earlier change of control in WLR Foods. Peter Green, chief executive officer of Cuddy International, will be named to the WLR Foods Board of Directors at the closing of the acquisition, which is expected within 30 days. Cuddy will retain its farm division, a major supplier of turkey eggs and poults. WLR Foods is a fully integrated provider of high quality turkey and chicken products primarily under the Wampler-Longacre(S) label and retail ice under the Cassco(S) label. This Fortune 500 company, with current annual revenues of $720 million, exports to more than 40 countries and has processing operations in Virginia, West Virginia and Pennsylvania, close to its major mid-Atlantic markets. ### EX-99.1 6 33 Exhibit 9.1 VOTING TRUST AGREEMENT THIS VOTING TRUST AGREEMENT, dated August 29, 1994, is made by and among WLR FOODS, INC., a Virginia corporation (WLR Foods), CUDDY FARMS, INC., a North Carolina corporation, its successors and assigns (Cuddy), and CRESTAR BANK, Trustee, and its successors (Trustee) who agree as follows. RECITALS: A. As of the date hereof 1,183,333 shares of WLR Foods common stock (the Shares) have been issued to the Trustee hereunder, on behalf of Cuddy in consideration for the transfer of certain assets pursuant to the terms of an Asset Purchase Agreement between Cuddy, WLR Foods and others dated July 27, 1994. The parties anticipate that additional shares of WLR Foods common stock may be issued to the Trustee, on behalf of Cuddy, following certain post-closing adjustments which, when issued, shall also be considered "Shares" hereunder. B. A condition precedent to WLR Foods' obligation to issue the Shares was Cuddy's execution of this Agreement in order for the Cuddy acquisition not to compromise the continuity and stability of WLR Foods' long term business strategy and policies as effectively confirmed by a recent vote of shareholders of WLR Foods and as implemented and managed by WLR Foods' Board of Directors and management. C. The Trustee has consented to act under this Agreement for the purposes hereunder. NOW, THEREFORE, in consideration of the premises and other good and valuable consideration, receipt of which is hereby acknowledged, the parties agree as follows: 1. Transfer of Stock to Trustee. Concurrently with the closing of the above- referenced Asset Purchase Agreement, the Shares were issued to Trustee, on behalf of Cuddy, who shall hold the Shares subject to the terms of this Agreement and shall issue and deliver to Cuddy voting trust certificates for the Shares. The Trustee shall not transfer or otherwise dispose of any of the Shares except as provided herein. 2. Voting Trust Certificates. The voting trust certificates shall be in substantially the same form as set forth on Exhibit A attached hereto. 3. Transfer of Certificates. Unless otherwise agreed to in writing by WLR Foods, the voting trust certificates are not transferable except that (a) the holder thereof may pledge, mortgage or otherwise encumber the certificates and the beneficiary thereof may exercise its remedies with respect thereto and (b) the holder thereof may transfer the certificates to Cuddy International Corporation or a wholly-owned subsidiary of Cuddy International Corporation; provided, however, that notwithstanding anything to the contrary contained herein, the person or persons in whose favor such certificates are transferred shall be bound by all of the provisions of this Agreement as though that person were the holder and shall exercise the rights of the voting trust certificates only in accordance with this Agreement. In the event of any permitted transfer, the certificates shall be 34 transferable at the Trustee's principal office in Richmond, Virginia (and at such other office as the Trustee may designate by an instrument signed by it and sent by telecopy to the registered holders of voting trust certificates), on the books of the Trustee, by the registered owner thereof, either in person or by attorney thereto duly authorized, upon surrender thereof, according to the rules established for that purpose by the Trustee. 4. Term of Agreement. This Agreement shall terminate upon the earlier of: (a) The fourth anniversary hereof. (b) The date on which a business acquisition by WLR Foods occurs in which (i) in excess of five percent (5%) of its then outstanding shares of common stock is issued without voting and transfer restrictions similar to those set forth herein, and (ii) Cuddy's stock ownership in WLR Foods after such business acquisition is less than five percent (5%) of the total outstanding shares of common stock of WLR Foods. (c) The date on which a "Change of Control" occurs in WLR Foods. For the purpose of this Agreement, a "Change in Control" shall mean 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 thirty percent (30%) of either the then outstanding shares of common stock of WLR Foods or the combined voting power of the then outstanding voting securities of WLR Foods entitled to vote generally in the election of directors. (d) The date on which a complaint in bankruptcy, or for arrangement or reorganization, or for relief under any insolvency law is filed against WLR Foods. (e) The date on which all shares of WLR Foods' common stock held hereunder have been released pursuant to the terms of Section 6 below. WLR Foods shall promptly notify the Trustee of any acquisition, Change of Control or insolvency described in (b), (c) or (d) above, and the Trustee shall not be deemed to have knowledge thereof prior to its receipt of such notification. The Trustee may rely upon such notification and may assume that it is correct. 35 5. Termination Procedure. (a) Immediately upon the termination of this Agreement as provided in Section 4 above, the voting trust certificates shall cease to have any effect, and their holders shall have no further rights under this Voting Trust Agreement other than to receive certificates for shares of the WLR Foods' stock or other property distributable under the terms hereof and upon the surrender of such voting trust certificates. (b) Immediately upon surrender of the voting trust certificates at the Trustee's offices, the Trustee shall deliver to the registered holders of all voting trust certificates certificates for the number of shares of the WLR Foods' common stock represented thereby. (c) If any voting trust certificate has not been surrendered within thirty (30) days after the termination of this Agreement, the Trustee may deposit with WLR Foods stock certificates representing the number of shares of common stock represented by such voting trust certificates then outstanding, with authority in writing to WLR Foods to deliver such stock certificates in exchange for voting trust certificates representing a like number of shares of the capital stock of WLR Foods. Upon such deposit, all further liability of the Trustee for the delivery of such stock certificates and the delivery or payment of dividends upon surrender of the voting trust certificates shall cease, and the Trustee shall not be required to take any further action hereunder. 6. Release of Shares. The Trustee shall release the Shares from this Agreement, free and clear of this Agreement, in either of the following events: (a) (i) The Trustee's receipt of a written Put Notice (as defined in the Put and Call Agreement referred to below), properly signed and delivered, by Cooperatieve Centrale Raiffeisen-Boerenleenbank B.A., "Rabobank Nederland, New York Branch" or The Prudential Insurance Company of America, as the case may be, pursuant to the terms of a Put and Call Agreement between the same, the Trustee and others of even date herewith, followed by (ii) WLR Foods' failure to make timely settlement of the put option exercised by delivery of such written Put Notice. (b) WLR Foods' delivery to the Trustee of voting trust certificates, properly endorsed for transfer to WLR Foods. The Trustee shall note on the reverse side of the stock certificate(s) evidencing the Shares the release of the Shares from this Agreement, which signature shall be valid and binding against all parties hereto. 7. Dividends. (a) Prior to the termination of this Agreement, the holder of each voting trust certificate shall be entitled to receive payments equal to the cash dividends, if any, received by the Trustee upon a like number and class of shares of WLR Foods' common stock as is called for by each voting trust certificate. If any dividend in respect of the stock deposited with the Trustee is paid, in whole or in part, in WLR Foods' common stock, the Trustee shall hold, subject to the terms of this Agreement, the certificates for stock which are 36 received by it on account of such dividend. In the event of a dividend payable in cash or stock at the shareholder's election, the Trustee shall make such election upon the direction of the registered holder of the voting trust certificate, or, in the absence of such direction at the time the Trustee makes such election, shall elect a cash dividend payment. The holder of each voting trust certificate representing stock on which such stock dividend has been paid shall be entitled to receive a voting trust certificate issued under this Agreement for the number of shares and class of stock received as such dividend with respect to the shares represented by such voting trust certificate. Holders entitled to receive the dividends described above shall be those registered as such on the Trustee's transfer books at the close of business on the day fixed by WLR Foods for the taking of a record to determine those holders of its stock entitled to receive such dividends. WLR Foods shall promptly notify the Trustee of the day so fixed. (b) If any dividend in respect of the stock deposited with the Trustee is paid other than in cash or in common stock, then the Trustee shall distribute the same among the holders of voting trust certificates registered as such on the Trustee's transfer books at the close of business on the day fixed by WLR Foods for the taking of a record to determine those holders of its stock entitled to receive such dividends. (c) In lieu of receiving cash dividends upon the common stock of WLR Foods and paying the same to the holders of voting trust certificates pursuant to the provisions of this Agreement, the Trustee may instruct WLR Foods in writing to pay such dividends to the holders of the voting trust certificates. Upon receipt of such written instructions, WLR Foods shall pay such dividends directly to the holders of the voting trust certificates. Upon such instructions being given by the Trustee, all liability of the Trustee with respect to such dividends shall cease. The Trustee may at any time revoke such instructions and by written notice to WLR Foods direct it to make dividend payments to the Trustee. WLR Foods shall promptly notify the Trustee of the day so fixed. (d) Any federal or state filings necessary to be made by virtue of the Trustee payment, if any, of dividends or other distributions hereunder shall be timely made by the Trustee. 8. Rights of Trustee. (a) Until the actual delivery to the holders of voting trust certificates issued hereunder of stock certificates in exchange therefor, and until the surrender of the voting trust certificates for cancellation, the Trustee shall have the right, subject to the provisions hereof, including, without limitation, paragraph (b) below, to exercise, in person or by his nominees or proxies, all stockholder voting rights and powers in respect of all stock deposited hereunder, and to take part in or consent to any corporate or stockholder action of any kind whatsoever. The right to vote shall include the right to vote for the election of directors, and in favor of or against any resolution or proposed action of any character whatsoever, which may be presented at any meeting or require the consent of the WLR Foods' stockholders. Without limiting such general right, it is understood that such action or proceeding may include, mortgaging, creating a security interest in, and pledging of all or any part of the WLR Foods' property, the lease or sale of all or any part of its property, 37 for cash, securities, or other property, and the dissolution of WLR Foods, or its consolidation, merger, reorganization, or recapitalization. (b) In voting the stock held by him hereunder either in person or by his nominees or proxies, the Trustee shall vote in accordance with the recommendation of the WLR Foods' Board of Directors as it exists at the time of the vote of WLR Foods' shareholders, or if there is no such recommendation, as directed by the registered voting trust certificate holder. Such recommendation or direction shall be communicated to the Trustee in the form of a written certificate signed (i) in the case of such recommendation, by an officer of WLR Foods, and (ii) in the case of such direction, by such holder. The Trustee may rely upon such certificate and may assume that the information contained therein is correct. In the absence of such a recommendation or direction, the Trustee shall not vote such stock. 9. Trustees. (a) The Trustee (and any successor Trustee) may at any time resign by mailing to WLR Foods and the registered holders of voting trust certificates a written resignation, to take effect ten (10) days thereafter or upon its prior acceptance. In the event of resignation, a successor Trustee shall be mutually acceptable to, and designated by, WLR Foods and Cuddy, or, in the absence of an agreement between the parties, designated by an independent third party selected by them. No person or entity shall be named as successor Trustee who is restricted from voting WLR Foods common stock by any other law, agreement or regulatory or judicial order. (b) The rights, powers, and privileges of the Trustee named hereunder shall be possessed by the successor Trustees, with the same effect as though such successors had originally been parties to this Agreement. The word "Trustee," as used in this Agreement, means the Trustee or any successor Trustees acting hereunder, and shall include both the single and the plural number. 10. Compensation and Reimbursement of Trustee. WLR Foods shall pay the Trustee an Acceptance Fee of $1,000 upon its execution hereof and, thereafter, upon each anniversary of this Agreement, WLR Foods shall pay the Trustee an annual fee of $750. The Trustee shall have the right to incur and pay such reasonable expenses and charges, to employ and pay such agents, attorneys, and counsel as it may deem necessary and proper to effectuate this Agreement. All such expenses or charges incurred by and due to the Trustee shall be reimbursed by WLR Foods. 11. Indemnification. WLR Foods shall indemnify and hold harmless each of Cuddy and the Trustee and their respective officers, directors, employees, shareholders, partners, agents, legal counsel and accountants (each an "Indemnitee" and together the "Indemnitees") to the fullest extent permitted by applicable law in effect on the date hereof or as such laws may from time to time be amended from and against any and all losses, claims, damages, liabilities and expenses (including attorneys' fees and expenses and any and all expenses whatsoever incurred in investigating, preparing or defending any action, suit, investigation or proceeding), and amounts paid in 38 settlement (together, "Losses") incurred by an Indemnitee if such Indemnitee is a party or is threatened to be made a party to any threatened, pending or completed action, suit, investigation or proceeding, whether civil, criminal, administrative or investigation in nature, arising from, caused by or in connection with the negotiation, execution, delivery and performance of this Agreement (including any other agreements entered into in connection herewith), other than as a result of the breach by the Indemnitee of any terms of this Agreement or such agreements. 12. Notice. (a) Unless otherwise specifically provided herein, any notice to or communication with any party hereto or the holders of the voting trust certificates hereunder shall be deemed to be sufficiently given or made if telecopied or delivered against receipt to the party to whom it is to be given at the following address (or such other address as the party shall have furnished in writing in accordance with this Section): (i) If to Cuddy or Cuddy International Corporation, at Cuddy International Corporation 465 Richmond Street, Suite 600 London, Ontario Canada N6A 5P4 Attn: President Fax No.: (519) 679-9355 (ii) If to WLR Foods, at WLR Foods, Inc. P.O. Box 7000 Broadway, VA 22815 Attn: President Fax No.: (703) 896-0498 (iii)It to the Trustee, at Crestar Bank Corporate Trust Administration 10th Floor 919 E. Main Street Richmond, VA 23219 Fax No.: 804-782-7855 (b) All distributions of cash, securities, or other property hereunder by the Trustee to the holders of voting trust certificates shall be made, in the Trustee's discretion, by overnight delivery to the addresses set forth above. 13. Modifications and Non-Waiver. This Agreement may be modified only by a written instrument executed by Cuddy, WLR Foods and the Trustee; provided, however, that the Trustee's consent shall not be necessary to modifications except as they expressly relate to its duties, fees, indemnification and right to resign or otherwise adversely affect the Trustee. No delay or failure by a party to exercise any right under this Agreement, and no partial or single exercise of that right, shall constitute a waiver of that or any other right, unless otherwise expressly provided herein. 39 14. Headings. Headings in this Agreement are for convenience only and shall not be used to interpret or construe its provisions. 15. Governing Law; Venue. This Agreement shall be governed and construed in accordance with the laws of the Commonwealth of Virginia applicable to agreements made and to be performed entirely within the Commonwealth. The Circuit Court of the County of Rockingham, Virginia or the United States District Court for the Western District of Virginia, Harrisonburg Division, as appropriate, shall have exclusive jurisdiction and venue over any claims or causes of action concerning this Agreement. 16. 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. 17. Binding Effect. The provisions of this Agreement shall be binding upon and inure to the benefit of each of the parties and their respective legal representatives, successors and assigns. 18. Securities Matters. The Trustee will cause all filings required to be made by it under applicable federal and state securities laws by reason of the Trustee's ownership or holding of the Shares or the performance of the Trustee's duties hereunder. The Trustee shall not be deemed to be, and neither WLR Foods nor Cuddy shall treat the Trustee as, a beneficial owner of any of the Shares for purposes of Section 13(d) or 13(g) of the Securities Exchange Act of 1934. IN WITNESS WHEREOF, the parties have caused this Voting Trust Agreement to be executed by their respective officers hereunto duly authorized as of the day and year first above written. CUDDY FARMS, INC., a North Carolina corporation By:________________________________________ Its President WLR FOODS, INC., a Virginia corporation By_________________________________________ Its President CRESTAR BANK By_________________________________________ Its _____________________ 20913 40 No.________________ Shares _____________ WLR Foods, Inc. a Virginia corporation Voting Trust Certificate for Common Stock This certifies that Cuddy Farms, Inc., or registered assigns, is entitled to all benefits arising from the deposit with the Trustee under the Voting Trust Agreement hereinafter mentioned of certificates for ____________ shares of WLR Foods, Inc., a Virginia corporation (WLR Foods), as provided in such Voting Trust Agreement and subject to the terms thereof. The registered holder hereof, or assigns, is entitled to receive payment equal to the amount of cash dividends, if any, received by the Trustee upon the number of shares of common stock of WLR Foods in respect of which this certificate is issued. Dividends received by the Trustee in WLR Foods' common stock shall be payable in voting trust certificates, in form similar hereto. Until the Trustee has delivered the stock held under such Voting Trust Agreement to the holders of the trust certificates, or to WLR Foods, as specified in such Voting Trust Agreement, the Trustee shall possess and be entitled to exercise all rights and powers of an absolute owner of such stock, including the right to vote thereon for every purpose according to and as restricted by the terms of the Voting Trust Agreement, and to execute consents in respect thereof for every purpose, it being expressly stipulated that no voting right passes to the owner hereof, or assigns, under this certificate or any agreement, expressed or implied. This certificate is issued, received, and held under, and the rights of the owner hereof are subject to, the terms of a Voting Trust Agreement dated August 29, 1994 by and between WLR Foods, Cuddy Farms, Inc., its successors and assigns, and Crestar Bank, Trustee and its successors, a copy of which is on file with WLR Foods, Inc. The holder of this certificate, by acceptance hereof, assents and is bound to all the provisions of the Voting Trust Agreement. In the event that the Trustee receives any dividend or distribution other than in cash or WLR Foods' common stock, the Trustee shall distribute the same to the registered holders of voting trust certificates pursuant to the provisions of the Voting Trust Agreement. The Voting Trust Agreement shall continue in full force and effect until the earlier of August 29, 1998, a change of control, and certain other events, as provided in the Voting Trust Agreement. Stock certificates for the number of shares of common stock then represented by this certificate, or the net proceeds in cash or property of such shares, shall be due and deliverable hereunder upon the termination of such Voting Trust Agreement as provided therein. Except as provided in the Voting Trust Agreement, this certificate is not transferable except that the holder hereof may pledge, mortgage or otherwise encumber the certificates and the beneficiary thereof may exercise its remedies with respect thereto; provided, however, that the person or persons in whose favor such certificates are transferred shall be bound by all of the provisions of the Voting Trust Agreement as though they were the holder and shall exercise the rights of this certificate only in accordance therewith. In the event of any transfer by virtue of a pledge, mortgage or encumbrance, the 41 certificates shall be transferable at the Trustee's principal office (set forth in the Voting Trust Agreement) on the books of the Trustee, by the registered owner thereof, either in person or by attorney thereto duly authorized, upon surrender thereof, according to the rules established for that purpose by the Trustee. This certificate shall not be valid for any purpose until duly signed by the Trustee. The word "Trustee" as used in this certificate means the Trustee or the successor trustee acting under such Voting Trust Agreement. In witness whereof the Trustee has signed this certificate on August 29, 1994. _____________________________________ Trustee (Form of Assignment): For value received ________________________ hereby assigns the within certificate, and all rights and interests represented thereby, to ______________________ and appoints __________________ attorney to transfer this certificate on the books of the Trustee mentioned therein, with full power of substitution. Dated: ____________________ ______________________________ _______________________________(SEAL) Witness EXCEPT AS PERMITTED BY OF THE VOTING TRUST AGREEMENT AND SUBJECT TO A PUT AND CALL AGREEMENT DATED AUGUST 29, 1994, THIS VOTING TRUST CERTIFICATE MAY NOT BE TRANSFERRED WITHOUT THE EXPRESS WRITTEN CONSENT OF WLR FOODS, INC. -----END PRIVACY-ENHANCED MESSAGE-----