-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, U7zPvh30flC5JuYBLPp1mzfrtWJIIsn2fj4VFBcemqk9KwXs5LvUOOuTwuuICgz0 UiuGD839UYKNjv1kv/LVuw== 0000897069-01-500403.txt : 20010828 0000897069-01-500403.hdr.sgml : 20010828 ACCESSION NUMBER: 0000897069-01-500403 CONFORMED SUBMISSION TYPE: SC 14D9/A PUBLIC DOCUMENT COUNT: 1 FILED AS OF DATE: 20010827 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: PIERRE FOODS INC CENTRAL INDEX KEY: 0000067494 STANDARD INDUSTRIAL CLASSIFICATION: BAKERY PRODUCTS [2050] IRS NUMBER: 560945643 STATE OF INCORPORATION: NC FISCAL YEAR END: 0306 FILING VALUES: FORM TYPE: SC 14D9/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-32920 FILM NUMBER: 1724191 BUSINESS ADDRESS: STREET 1: 9990 PRINCETON RD CITY: CINCINNATI STATE: OH ZIP: 45246 BUSINESS PHONE: 8283040027 MAIL ADDRESS: STREET 1: 9990 PRINCETON RD CITY: CINCINNATI STATE: OH ZIP: 45246 FORMER COMPANY: FORMER CONFORMED NAME: FRESH FOODS INC DATE OF NAME CHANGE: 19980513 FORMER COMPANY: FORMER CONFORMED NAME: WESTERN STEER MOM N POPS INC DATE OF NAME CHANGE: 19880719 FORMER COMPANY: FORMER CONFORMED NAME: WSMP INC DATE OF NAME CHANGE: 19920703 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: PIERRE FOODS INC CENTRAL INDEX KEY: 0000067494 STANDARD INDUSTRIAL CLASSIFICATION: BAKERY PRODUCTS [2050] IRS NUMBER: 560945643 STATE OF INCORPORATION: NC FISCAL YEAR END: 0306 FILING VALUES: FORM TYPE: SC 14D9/A BUSINESS ADDRESS: STREET 1: 9990 PRINCETON RD CITY: CINCINNATI STATE: OH ZIP: 45246 BUSINESS PHONE: 8283040027 MAIL ADDRESS: STREET 1: 9990 PRINCETON RD CITY: CINCINNATI STATE: OH ZIP: 45246 FORMER COMPANY: FORMER CONFORMED NAME: FRESH FOODS INC DATE OF NAME CHANGE: 19980513 FORMER COMPANY: FORMER CONFORMED NAME: WESTERN STEER MOM N POPS INC DATE OF NAME CHANGE: 19880719 FORMER COMPANY: FORMER CONFORMED NAME: WSMP INC DATE OF NAME CHANGE: 19920703 SC 14D9/A 1 dkm60.txt AMENDMENT NO. 2 TO SCHEDULE 14D-9 SECURITIES AND EXCHANGE COMMISSION Washington, D.C. Schedule 14D-9 Solicitation/Recommendation Statement under Section 14(d)(4) of the Securities Exchange Act of 1934 Amendment No. 2 Pierre Foods, Inc. -------------------------------- (Name of Subject Company) Pierre Foods, Inc. -------------------------------- (Name of Persons Filing Statement) Common Stock, No Par Value (Title of Class of Securities) 720830 10 8 ---------------------------- (CUSIP Number of Class of Securities) Pamela M. Witters Chief Financial Officer, Secretary and Treasurer Pierre Foods, Inc. 9990 Princeton Road Cincinnati, Ohio 45246 (513) 874-8741 ----------------------------- (Name, address and telephone numbers of person authorized to receive notice and communications on behalf of the persons filing statement) Copy to: Patrick Daugherty, Esq. Foley & Lardner 150 West Jefferson Avenue Suite 1000 Detroit, Michigan 48226 (313) 963-6200 |X| Check the box if the filing relates solely to preliminary communications made before the commencement of a tender offer. This Schedule 14D-9, Amendment No. 2, is being filed to report the receipt on August 23, 2001, by Patrick Daugherty, counsel to the Special Committee, of a letter from David M. Kies, counsel to William E. Simon & Company and Triton Partners ("Simon/Triton") together with letters from a majority in interest of the holders of the 10-3/4% Senior Notes Due 2006 of Pierre Foods, Inc. (the "Notes"), stating that they were prepared to consent to a supplemental indenture exempting the offer of Simon/Triton from the change in control provisions contained in the indenture governing the Notes. Mr. Kies' letter and the Noteholder consents were delivered in response to a request made by the Special Committee in its letter dated August 21, 2001, to Simon/Triton. This Schedule 14D-9, Amendment No. 2 also reports the delivery by Patrick Daugherty on August 24, 2001, of a letter to J. Andrew Rahl, Jr., counsel to a group of Noteholders, requesting a meeting with such group to discuss the restructuring of Pierre Foods' debt. 2 SULLIVAN & CROMWELL Telephone: 1-212-558-4000 Facsimile: 1-212-558-3588 125 Broad Street New York, NY 10004-2498 --------------- Los Angeles - Palo Alto - Washington D.C. Frankfurt - London - Paris Beijing - Hong Kong - Tokyo Melbourne August 23, 2001 Patrick Daugherty, Esq., Foley & Lardner, 150 West Jefferson Avenue, Suite 1000, Detroit, MI 48226-4416 Re: Pierre Foods, Inc. Dear Patrick: In accordance with the request of the Special Committee, I enclose herewith a proposed form of Supplemental Indenture together with written evidence of the support of a majority in interest of noteholders therefor. I can also confirm that we have once again reviewed the Indenture and the Notes and are prepared to provide a written opinion that the holders of a majority in principal amount of the Notes have the authorization to approve the Supplemental Indenture and that the Supplemental Indenture, once duly executed and delivered by both the Trustee and the Company, would be valid. My clients look forward to a final decision from the Special Committee. Very truly yours, /s/ David M. Kies David M. Kies NY12526:31365 3 Form of Bondholder Consent August 22, 2001 William E. Simon & Sons, L.L.C Attn: Mr. Erik M.W. Caspersen 310 South Street Morristown, NJ 07962 FAX: 973-829-0840 Triton Partners Attn: Mr. Daniel J. Arbess 565 Fifth Avenue New York, NY 10017 FAX: 212-792-2174 Dear Sirs: Reference is made to you letter to the Special Committee of the Board of Directors of Pierre Foods, Inc. dated July 18, 2001 as filed with the Securities and Exchange Commission on Form SC to-C on that same date. With respect to the transaction described in that letter, we are prepared to consent to a supplemental indenture which will exempt this proposed transaction from the Change in Control provisions of Section 4.14 of the Indenture governing the Notes. This offer to consent only applies to the waiver of the Change of the Control Provision and the consent offer will expire on December 31, 2001 if a supplemental indenture has not been executed at that time. Sincerely, Name: Title: Firm: Amount of Notes Held: 4 FOLEY & LARDNER ATTORNEYS AT LAW BRUSSELS 150 West Jefferson, Suite 1000 ORLANDO CHICAGO Detroit, Michigan 48226-4416 SACRAMENTO DEL MAR TELEPHONE: (313) 963-6200 SAN DIEGO DENVER FACSIMILE: (313) 963-9308 SAN FRANCISCO DETROIT www.foleylardner.com TALLAHASSEE JACKSONVILLE -------------------- TAMPA LOS ANGELES WASHINGTON, D.C. MADISON WEST PALM BEACH MILWAUKEE WRITER'S DIRECT LINE (313) 442-6495 EMAIL ADDRESS CLIENT/MATTER NUMBER Pdaugherty@foleylaw.com 038714-0102 - ----------------------- August 24, 2001 By Fax: (212) 278-1733 J. Andrew Rahl, Jr., Esq. Anderson Kill & Olick, P.C. 1251 Avenue of the Americas New York, NY 10020-1182 Re: Pierre Foods, Inc. Dear Andy: As you know, I and my firm are counsel to the Special Committee of the Board of Directors of Pierre Foods, Inc. We also are securities counsel to Pierre Foods. In this dual capacity, I am writing to confirm my request for a meeting with you and those of your clients that hold the 10-3/4% Senior Notes Due 2006 of Pierre Foods, and with your clients' financial advisor, in order that representatives of the Special Committee and of Pierre Foods might present to them a proposal to restructure Pierre Foods' debt and, ideally, negotiate that proposal to a successful conclusion. The previously announced overture by William E. Simon & Sons and Triton Partners, with which you are familiar, does not envision a restructuring of Pierre Foods' debt; and Triton has opposed any such restructuring in its discussions with the Special Committee. Your clients, in contrast, appear receptive to a restructuring proposal. The Special Committee believes that a restructuring could benefit the company and its shareholders in several ways. Of particular significance, a restructuring has the potential to greatly increase the value of the stock in public hands, as concern about the company's ability to service and repay the Notes is seen as a depressing factor on the value and price of the stock. Accordingly, the Special Committee is motivated to pursue negotiations with your clients. In fairness to Simon and Triton, these negotiations should commence promptly. We are mindful that your financial advisor will need to obtain and evaluate considerable Pierre Foods financial information. Pierre Foods will expedite the delivery of that information. We suggest J. Andrew Rahl, Jr., Esq. August 24, 2001 Page 6 that, next week (August 27-31), you should obtain and analyze substantially all that you need to negotiate a restructuring agreement, with a view to meeting as soon as possible afterward in order to negotiate that agreement. Please call me to discuss engagement letters, logistics and any other matters of concern to your clients. Very truly yours, /s/ Patrick Patrick Daugherty cc: Mr. Bobby G. Holman Mr. Bruce E. Meisner Mr. E. Edwin Bradford Mr. David R. Clark David M. Kies, Esq. -----END PRIVACY-ENHANCED MESSAGE-----