--------------------------------------------------------------------------------
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------------------
SCHEDULE 13D
Under the Securities Exchange Act of 1934
IBP, INC.
(Name of Issuer)
Common Stock
$0.05 PAR VALUE
(Title of Class of Securities)
-----------------------
449223106
(CUSIP Number)
George R. Bason, Jr.
Davis Polk & Wardwell
450 Lexington Avenue
New York, New York 10017
Tel. No.: 212 450 4340
(Name, Address and Telephone Number of
Person Authorized to Receive Notices
and Communications)
October 1, 2000
(Date of Event which Requires Filing of
this Statement)
-----------------------
If the filing person has previously filed a statement on Schedule 13G
to report the acquisition which is the subject of this Schedule 13D, and is
filing this statement because of Rule 13d-1(b)(3) or (4), check the
following: [ ]
Check the following box if a fee is being paid with this statement.
[X]
--------------------------------------------------------------------------------
<PAGE>
SCHEDULE 13D
CUSIP No. 449223106 Page 1 of 21 Pages
--------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Rawhide Holdings Corporation
--------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [X]
--------------------------------------------------------------------------------
3 SEC USE ONLY
--------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
Not applicable
--------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e) [ ]
--------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DE
--------------------------------------------------------------------------------
7 SOLE VOTING POWER
-0-
------------------------------------------------------
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY OWNED
BY EACH REPORTING 17,239,353 - See Item 5
PERSON WITH ------------------------------------------------------
9 SOLE DISPOSITIVE POWER
-0-
------------------------------------------------------
10 SHARED DISPOSITIVE POWER
-0-
--------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
17,239,353 - See Item 5
--------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* [ ]
--------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
16.33% - See Item 5
--------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
HC,CO
--------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
SCHEDULE 13D
CUSIP No. 449223106 Page 2 of 21 Pages
--------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Rawhide Acquisition Corporation
--------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [X]
--------------------------------------------------------------------------------
3 SEC USE ONLY
--------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
Not applicable
--------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e) [ ]
--------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DE
--------------------------------------------------------------------------------
7 SOLE VOTING POWER
-0-
------------------------------------------------------
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY OWNED
BY EACH REPORTING 17,239,353 - See Item 5
PERSON WITH ------------------------------------------------------
9 SOLE DISPOSITIVE POWER
-0-
------------------------------------------------------
10 SHARED DISPOSITIVE POWER
-0-
--------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
17,239,353 - See Item 5
--------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* [ ]
--------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
16.33% - See Item 5
--------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
CO
--------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
SCHEDULE 13D
CUSIP No. 449223106 Page 3 of 21 Pages
--------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
DLJ Merchant Banking Partners III, L.P.
--------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [X]
--------------------------------------------------------------------------------
3 SEC USE ONLY
--------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
Not applicable
--------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e) [ ]
--------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DE
--------------------------------------------------------------------------------
7 SOLE VOTING POWER
-0-
------------------------------------------------------
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY OWNED
BY EACH REPORTING 17,239,353 - See Item 5
PERSON WITH ------------------------------------------------------
9 SOLE DISPOSITIVE POWER
-0-
------------------------------------------------------
10 SHARED DISPOSITIVE POWER
-0-
--------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
17,239,353 - See Item 5
--------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* [ ]
--------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
16.33% - See Item 5
--------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
PN
--------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
SCHEDULE 13D
CUSIP No. 449223106 Page 4 of 21 Pages
--------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
DLJ Offshore Partners III, C.V.
--------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [X]
--------------------------------------------------------------------------------
3 SEC USE ONLY
--------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
Not applicable
--------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e) [ ]
--------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Netherlands Antilles
--------------------------------------------------------------------------------
7 SOLE VOTING POWER
-0-
------------------------------------------------------
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY OWNED
BY EACH REPORTING 17,239,353 - See Item 5
PERSON WITH ------------------------------------------------------
9 SOLE DISPOSITIVE POWER
-0-
------------------------------------------------------
10 SHARED DISPOSITIVE POWER
-0-
--------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
17,239,353 - See Item 5
--------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* [ ]
--------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
16.33% - See Item 5
--------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
PN
--------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
SCHEDULE 13D
CUSIP No. 449223106 Page 5 of 21 Pages
--------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
DLJ Merchant Banking III, L.P.
--------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [X]
--------------------------------------------------------------------------------
3 SEC USE ONLY
--------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
Not applicable
--------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e) [ ]
--------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DE
--------------------------------------------------------------------------------
7 SOLE VOTING POWER
-0-
------------------------------------------------------
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY OWNED
BY EACH REPORTING 17,239,353 - See Item 5
PERSON WITH ------------------------------------------------------
9 SOLE DISPOSITIVE POWER
-0-
------------------------------------------------------
10 SHARED DISPOSITIVE POWER
-0-
--------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
17,239,353 - See Item 5
--------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* [ ]
--------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
16.33% - See Item 5
--------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
PN
--------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
SCHEDULE 13D
CUSIP No. 449223106 Page 6 of 21 Pages
--------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
DLJ Merchant Banking III, Inc.
--------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [X]
--------------------------------------------------------------------------------
3 SEC USE ONLY
--------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
Not applicable
--------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e) [ ]
--------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DE
--------------------------------------------------------------------------------
7 SOLE VOTING POWER
-0-
------------------------------------------------------
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY OWNED
BY EACH REPORTING 17,239,353 - See Item 5
PERSON WITH ------------------------------------------------------
9 SOLE DISPOSITIVE POWER
-0-
------------------------------------------------------
10 SHARED DISPOSITIVE POWER
-0-
--------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
17,239,353 - See Item 5
--------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* [ ]
--------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
16.33% - See Item 5
--------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
CO
--------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
SCHEDULE 13D
CUSIP No. 449223106 Page 7 of 21 Pages
--------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
DLJ ESC II, L.P.
--------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [X]
--------------------------------------------------------------------------------
3 SEC USE ONLY
--------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
Not applicable
--------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e) [ ]
--------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DE
--------------------------------------------------------------------------------
7 SOLE VOTING POWER
-0-
------------------------------------------------------
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY OWNED
BY EACH REPORTING 17,239,353 - See Item 5
PERSON WITH ------------------------------------------------------
9 SOLE DISPOSITIVE POWER
-0-
------------------------------------------------------
10 SHARED DISPOSITIVE POWER
-0-
--------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
17,239,353 - See Item 5
--------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* [ ]
--------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
16.33% - See Item 5
--------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
PN
--------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
SCHEDULE 13D
CUSIP No. 449223106 Page 8 of 21 Pages
--------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
DLJMB Funding III, Inc.
--------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [X]
--------------------------------------------------------------------------------
3 SEC USE ONLY
--------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
Not applicable
--------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e) [ ]
--------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DE
--------------------------------------------------------------------------------
7 SOLE VOTING POWER
-0-
------------------------------------------------------
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY OWNED
BY EACH REPORTING 17,239,353 - See Item 5
PERSON WITH ------------------------------------------------------
9 SOLE DISPOSITIVE POWER
-0-
------------------------------------------------------
10 SHARED DISPOSITIVE POWER
-0-
--------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
17,239,353 - See Item 5
--------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* [ ]
--------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
16.33% - See Item 5
--------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
CO
--------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
SCHEDULE 13D
CUSIP No. 449223106 Page 9 of 21 Pages
--------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
DLJ LBO Plans Management Corporation
--------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [X]
--------------------------------------------------------------------------------
3 SEC USE ONLY
--------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
Not applicable
--------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e) [ ]
--------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DE
--------------------------------------------------------------------------------
7 SOLE VOTING POWER
-0-
------------------------------------------------------
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY OWNED
BY EACH REPORTING 17,239,353 - See Item 5
PERSON WITH ------------------------------------------------------
9 SOLE DISPOSITIVE POWER
-0-
------------------------------------------------------
10 SHARED DISPOSITIVE POWER
-0-
--------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
17,239,353 - See Item 5
--------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* [ ]
--------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
16.33% - See Item 5
--------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
CO
--------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
SCHEDULE 13D
CUSIP No. 449223106 Page 10 of 21 Pages
--------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
DLJ Capital Investors, Inc.
--------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [X]
--------------------------------------------------------------------------------
3 SEC USE ONLY
--------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
Not applicable
--------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e) [ ]
--------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DE
--------------------------------------------------------------------------------
7 SOLE VOTING POWER
-0-
------------------------------------------------------
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY OWNED
BY EACH REPORTING 17,239,353 - See Item 5
PERSON WITH ------------------------------------------------------
9 SOLE DISPOSITIVE POWER
-0-
------------------------------------------------------
10 SHARED DISPOSITIVE POWER
-0-
--------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
17,239,353 - See Item 5
--------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* [ ]
--------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
16.33% - See Item 5
--------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
CO
--------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
SCHEDULE 13D
CUSIP No. 449223106 Page 11 of 21 Pages
--------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Donaldson Lufkin & Jenrette, Inc.
--------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [X]
--------------------------------------------------------------------------------
3 SEC USE ONLY
--------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
Not applicable
--------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e) [ ]
--------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DE
--------------------------------------------------------------------------------
7 SOLE VOTING POWER
-0-
------------------------------------------------------
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY OWNED
BY EACH REPORTING 17,239,353 - See Item 5
PERSON WITH ------------------------------------------------------
9 SOLE DISPOSITIVE POWER
-0-
------------------------------------------------------
10 SHARED DISPOSITIVE POWER
-0-
--------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
17,239,353 - See Item 5
--------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* [ ]
--------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
16.33% - See Item 5
--------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
HC, CO
--------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
SCHEDULE 13D
CUSIP No. 449223106 Page 12 of 21 Pages
--------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
AXA Financial, Inc.
--------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [ ]
--------------------------------------------------------------------------------
3 SEC USE ONLY
--------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
Not applicable
--------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e) [ ]
--------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DE
--------------------------------------------------------------------------------
7 SOLE VOTING POWER
See Item 5
------------------------------------------------------
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY OWNED
BY EACH REPORTING See Item 5
PERSON WITH ------------------------------------------------------
9 SOLE DISPOSITIVE POWER
See Item 5
------------------------------------------------------
10 SHARED DISPOSITIVE POWER
See Item 5
--------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
See Item 5
--------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* [ ]
--------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
See Item 5
--------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
CO, HC
--------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
SCHEDULE 13D
CUSIP No. 449223106 Page 13 of 21 Pages
--------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
AXA
--------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [ ]
--------------------------------------------------------------------------------
3 SEC USE ONLY
--------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
Not applicable
--------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e) [ ]
--------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
France
--------------------------------------------------------------------------------
7 SOLE VOTING POWER
See Item 5
------------------------------------------------------
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY OWNED
BY EACH REPORTING See Item 5
PERSON WITH ------------------------------------------------------
9 SOLE DISPOSITIVE POWER
See Item 5
------------------------------------------------------
10 SHARED DISPOSITIVE POWER
See Item 5
--------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
See Item 5 (not to be construed as an admission of beneficial
ownership)
--------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* [ ]
--------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
See Item 5
--------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
HC
--------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
SCHEDULE 13D
CUSIP No. 449223106 Page 14 of 21 Pages
--------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Finaxa
--------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [ ]
--------------------------------------------------------------------------------
3 SEC USE ONLY
--------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
Not applicable
--------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e) [ ]
--------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
France
--------------------------------------------------------------------------------
7 SOLE VOTING POWER
See Item 5
------------------------------------------------------
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY OWNED
BY EACH REPORTING See Item 5
PERSON WITH ------------------------------------------------------
9 SOLE DISPOSITIVE POWER
See Item 5
------------------------------------------------------
10 SHARED DISPOSITIVE POWER
See Item 5
--------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
See Item 5 (not to be construed as an admission of beneficial
ownership)
--------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* [ ]
--------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
See Item 5
--------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
HC
--------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
SCHEDULE 13D
CUSIP No. 449223106 Page 15 of 21 Pages
--------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
AXA Assurances I.A.R.D. Mutuelle
--------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [ ]
--------------------------------------------------------------------------------
3 SEC USE ONLY
--------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
Not applicable
--------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e) [ ]
--------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
France
--------------------------------------------------------------------------------
7 SOLE VOTING POWER
See Item 5
------------------------------------------------------
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY OWNED
BY EACH REPORTING See Item 5
PERSON WITH ------------------------------------------------------
9 SOLE DISPOSITIVE POWER
See Item 5
------------------------------------------------------
10 SHARED DISPOSITIVE POWER
See Item 5
--------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
See Item 5 (not to be construed as an admission of beneficial
ownership)
--------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* [ ]
--------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
See Item 5
--------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
IC
--------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
SCHEDULE 13D
CUSIP No. 449223106 Page 16 of 21 Pages
--------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
AXA Assurances Vie Mutuelle
--------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [ ]
--------------------------------------------------------------------------------
3 SEC USE ONLY
--------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
Not applicable
--------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e) [ ]
--------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
France
--------------------------------------------------------------------------------
7 SOLE VOTING POWER
See Item 5
------------------------------------------------------
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY OWNED
BY EACH REPORTING See Item 5
PERSON WITH ------------------------------------------------------
9 SOLE DISPOSITIVE POWER
See Item 5
------------------------------------------------------
10 SHARED DISPOSITIVE POWER
See Item 5
--------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
See Item 5 (not to be construed as an admission of beneficial
ownership)
--------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* [ ]
--------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
See Item 5
--------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
IC
--------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
SCHEDULE 13D
CUSIP No. 449223106 Page 17 of 21 Pages
--------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
AXA Courtage Assurance Mutuelle
--------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [ ]
--------------------------------------------------------------------------------
3 SEC USE ONLY
--------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
Not applicable
--------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e) [ ]
--------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
France
--------------------------------------------------------------------------------
7 SOLE VOTING POWER
See Item 5
------------------------------------------------------
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY OWNED
BY EACH REPORTING See Item 5
PERSON WITH ------------------------------------------------------
9 SOLE DISPOSITIVE POWER
See Item 5
------------------------------------------------------
10 SHARED DISPOSITIVE POWER
See Item 5
--------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
See Item 5 (not to be construed as an admission of beneficial
ownership)
--------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* [ ]
--------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
See Item 5
--------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
IC
--------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
SCHEDULE 13D
CUSIP No. 449223106 Page 18 of 21 Pages
--------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
AXA Conseil Vie Assurance Mutuelle
--------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [ ]
--------------------------------------------------------------------------------
3 SEC USE ONLY
--------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
Not applicable
--------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e) [ ]
--------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
France
--------------------------------------------------------------------------------
7 SOLE VOTING POWER
See Item 5
------------------------------------------------------
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY OWNED
BY EACH REPORTING See Item 5
PERSON WITH ------------------------------------------------------
9 SOLE DISPOSITIVE POWER
See Item 5
------------------------------------------------------
10 SHARED DISPOSITIVE POWER
See Item 5
--------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
See Item 5 (not to be construed as an admission of beneficial
ownership)
--------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* [ ]
--------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
See Item 5
--------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
IC
--------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
SCHEDULE 13D
CUSIP No. 449223106 Page 19 of 21 Pages
--------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Claude Bebear, as AXA Voting Trustee
--------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [ ]
--------------------------------------------------------------------------------
3 SEC USE ONLY
--------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
Not applicable
--------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e) [ ]
--------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Citizen of France
--------------------------------------------------------------------------------
7 SOLE VOTING POWER
See Item 5
------------------------------------------------------
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY OWNED
BY EACH REPORTING See Item 5
PERSON WITH ------------------------------------------------------
9 SOLE DISPOSITIVE POWER
See Item 5
------------------------------------------------------
10 SHARED DISPOSITIVE POWER
See Item 5
--------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
See Item 5 (not to be construed as an admission of beneficial
ownership)
--------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* [ ]
--------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
See Item 5
--------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
IN
--------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
SCHEDULE 13D
CUSIP No. 449223106 Page 20 of 21 Pages
--------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Patrice Garnier, as AXA Voting Trustee
--------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [ ]
--------------------------------------------------------------------------------
3 SEC USE ONLY
--------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
Not applicable
--------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e) [ ]
--------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Citizen of France
--------------------------------------------------------------------------------
7 SOLE VOTING POWER
See Item 5
------------------------------------------------------
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY OWNED
BY EACH REPORTING See Item 5
PERSON WITH ------------------------------------------------------
9 SOLE DISPOSITIVE POWER
See Item 5
------------------------------------------------------
10 SHARED DISPOSITIVE POWER
See Item 5
--------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
See Item 5 (not to be construed as an admission of beneficial
ownership)
--------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* [ ]
--------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
See Item 5
--------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
IN
--------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
SCHEDULE 13D
CUSIP No. 449223106 Page 21 of 21 Pages
--------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Henri de Clermont, as AXA Voting Trustee
--------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [ ]
--------------------------------------------------------------------------------
3 SEC USE ONLY
--------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
Not applicable
--------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e) [ ]
--------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Citizen of France
--------------------------------------------------------------------------------
7 SOLE VOTING POWER
See Item 5
------------------------------------------------------
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY OWNED
BY EACH REPORTING See Item 5
PERSON WITH ------------------------------------------------------
9 SOLE DISPOSITIVE POWER
See Item 5
------------------------------------------------------
10 SHARED DISPOSITIVE POWER
See Item 5
--------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
See Item 5 (not to be construed as an admission of beneficial
ownership)
--------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* [ ]
--------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
See Item 5
--------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
IN
--------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
Item 1. Security and Issuer.
The class of equity securities to which this statement relates is the
common stock, $0.05 par value per share (the "Shares"), of IBP, inc., a Delaware
corporation ("IBP"). The principal executive offices of IBP are located at 800
Stevens Port Drive, Dakota Dunes, South Dakota 57049.
Item 2. Identity and Background.
This Schedule 13D is being filed jointly on behalf of the following
persons (collectively, the "Reporting Persons"): (1) Rawhide Holdings
Corporation, a Delaware corporation, ("Rawhide Holdings"), (2) Rawhide
Acquisition Corporation, a Delaware corporation and wholly-owned subsidiary of
Rawhide Holdings ("Rawhide Acquisition "); (3) DLJ Merchant Banking Partners
III, L.P., a Delaware corporation ("Partners III"); (4) DLJ Offshore Partners
III, C.V., a Netherlands Antilles limited partnership ("Offshore III"); (5)
DLJMB Funding III, Inc., a Delaware corporation ("Funding III"); (6) DLJ
Merchant Banking III, L.P., a Delaware limited partnership ("MBIII LP"); (7) DLJ
Merchant Banking III, Inc., a Delaware corporation ("MBIII Inc."); (8) DLJ ESC
II L.P., a Delaware limited partnership ("ESC II"); (9) DLJ LBO Plans Management
Corporation, a Delaware corporation ("LBO") (10) DLJ Capital Investors, Inc., a
Delaware corporation ("DLJCI" and together with the previously listed entities,
the "DLJ Entities"); (11) Donaldson, Lufkin & Jenrette, Inc., a Delaware
corporation ("DLJ"); (12) AXA Financial, Inc., a Delaware corporation ("AXF");
(13) AXA, a societe anonyme organized under the laws of France ("AXA"); (14)
Finaxa, a societe anonyme organized under the laws of France; (15) AXA
Assurances I.A.R.D. Mutuelle, a mutual insurance company organized under the
laws of France; (16) AXA Assurances Vie Mutuelle, a mutual insurance company
organized under the laws of France; (17) AXA Courtage Assurance Mutuelle
(formerly known as Uni Europe Assurance Mutuelle), a mutual insurance company
organized under the laws of France; (18) AXA Conseil Vie Assurance Mutuelle
(formerly known as Alpha Assurances Vie Mutuelle), a mutual insurance company
organized under the laws of France; and (19) Claude Bebear, Patrice Garnier and
Henri de Clermont- Tonnerre, trustees (the "AXA Voting Trustees") of a voting
trust (the "AXA Voting Trust") established pursuant to a Voting Trust Agreement
by and among AXA and the AXA Voting Trustees dated as of May 12, 1992, as
amended on January 22, 1997.
Partners III, Offshore III, Funding III, and ESC II are collectively
referred to as the "DLJ Funds".
Partners III is a Delaware limited partnership which makes investments
for long term appreciation. MBIII LP is the Associate General Partner of
Partners III. MBIII Inc. is the Managing General Partner of Partners III. MBIII
LP and MBIII Inc. make all of the investment decisions on behalf of Partners
III.
All of Rawhide Holding's voting securities are now owned by Partners
III. Upon consummation of the Merger referred to below, the voting securities of
Rawhide Holdings are expected to be owned by the DLJ Funds,
Archer-Daniels-Midland Company ("ADM"), Booth Creek Partners Limited III, LLLP
("Booth Creek"), Jeffrey J. Joyce, ("Joyce", and together with Booth Creek, the
"Booth Creek Investors"), Robert L. Peterson ("Peterson"), Richard L. Bond
("Bond"), other members of IBP management to be named and other investors to be
named (which may include one or more existing stockholders of IBP).
Offshore III is a Netherlands Antilles limited partnership which makes
investments for long term appreciation. MBIII LP is the Associate General
Partner of Offshore III. MBIII Inc. is the Advisory General Partner of Offshore
III. MBIII LP and MBIII Inc. make all of the investment decisions on behalf of
Offshore III.
MBIII LP is a Delaware limited partnership and is a registered
investment adviser. As the Associate General Partner of Partners III and
Offshore III, MBIII LP, in conjunction with MBIII Inc., participates in
investment decisions made on behalf of these entities. MBIII Inc. is the
Managing General Partner of MBIII LP.
MBIII Inc. is a Delaware corporation and is a registered investment
adviser. As the Managing General Partner of Partners III, and the Advisory
General Partner Offshore III, MBIII Inc. is responsible for the day to day
management of these entities and, in conjunction with MBIII LP, participates in
investment decisions made on behalf of these entities. MBIII Inc. is a wholly
owned subsidiary of DLJCI.
ESC II is a Delaware limited partnership and "employee securities
company" as defined in the Investment Company Act of 1940, as amended. LBO, as
the Managing General Partner of ESC II, makes all of the investment decisions on
behalf of ESC II.
1
<PAGE>
LBO is a Delaware corporation and a registered investment advisor. LBO
is a wholly owned subsidiary of DLJCI. As the Managing General Partner of ESC
II, LBO is responsible for the day-to-day management of ESC II.
Funding III is a Delaware corporation which makes investments for long
term appreciation generally side- by-side with Partners III. Funding III is a
wholly owned subsidiary of DLJCI.
DLJCI is a Delaware corporation and is a holding company. DLJCI is a
wholly owned subsidiary of DLJ.
DLJ is a publicly held Delaware corporation. DLJ directly owns all of
the capital stock of DLJCI. DLJ, acting on its own behalf or through its
subsidiaries, is a registered broker/dealer and registered investment advisor
engaged in investment banking, institutional trading and research, investment
management and financial and correspondent brokerage services.
AXF is a Delaware corporation and is a holding company. As of March 1,
2000, AXF owns, directly or indirectly, 69.6% of DLJ. As of March 1, 2000,
approximately 60.3% of the outstanding common stock of AXF was beneficially
owned by AXA. For insurance regulatory purposes, to ensure that certain indirect
minority shareholders of AXA will not be able to exercise control over AXF and
certain of its insurance subsidiaries, the voting shares of AXF capital stock
beneficially owned by AXA and its subsidiaries have been deposited into the AXA
Voting Trust. For additional information regarding the AXA Voting Trust,
reference is made to the Schedule 13D filed by AXA with respect to AXF.
AXA is a holding company for an international group of insurance and
related financial service companies. As of March 1, 2000, approximately 20.3% of
the issued ordinary shares (representing approximately 31.9% of the voting
power) of AXA were directly or indirectly owned by Finaxa. As of March 1, 2000,
the Mutuelles AXA (as defined below), in addition to their indirect beneficial
ownership of AXA's ordinary shares through Finaxa, directly beneficially owned
approximately 3.0% of AXA's ordinary shares (representing approximately 4.8% of
the voting power). In addition, as of March 1, 2000, approximately 1.1% of the
ordinary shares of AXA without the power to vote were owned by certain
subsidiaries of AXA. As of March 1, 2000, AXA and its subsidiary, AXA
Participations Belgium, together owned approximately 1.5% of DLJ.
Finaxa is a holding company. As of March 1, 2000, approximately 60.7%
of the voting shares (representing approximately 70.7% of the voting power) of
Finaxa were owned by the Mutuelles AXA (one of which, AXA Assurances I.A.R.D.
Mutuelle, owned approximately 34.8% of the voting shares, representing
approximately 40.4% of the voting power), and approximately 22.3% of the voting
shares (representing approximately 13.3% of the voting power) of Finaxa were
owned by Paribas (now BNP Paribas), a French bank.
The "Mutuelles AXA" are AXA Assurances I.A.R.D. Mutuelle, AXA
Assurances Vie Mutuelle, AXA Courtage Assurance Mutuelle (formerly known as Uni
Europe Assurance Mutuelle) and AXA Conseil Vie Assurance Mutuelle (formerly
known as Alpha Assurances Vie Mutuelle). Each of the Mutuelles AXA is a mutual
insurance company organized under the laws of France.
Claude Bebear, Patrice Garnier and Henri de Clermont-Tonnerre, the AXA
Voting Trustees, exercise all voting rights with respect to the shares of AXF
capital stock beneficially owned by AXA and its subsidiaries that have been
deposited in the AXA Voting Trust. The business address, citizenship and present
principal occupation of each of the AXA Voting Trustees are set forth on
Schedule H attached hereto.
The address of the principal business and office of each of the DLJ
Entities and DLJ is 277 Park Avenue, New York, New York 10172. The address of
the principal business and principal office of AXF is 1290 Avenue of the
Americas, New York, New York 10104.
The address of the principal business and principal office of AXA and
the AXA Voting Trustees is 25, avenue Matignon, 75008 Paris, France. The address
of Finaxa is 23, avenue Matignon, 75008 Paris, France; of each of AXA Assurances
I.A.R.D. Mutuelle, AXA Assurances Vie Mutuelle and AXA Conseil Vie Assurances
Mutuelle is 370, rue Saint-Honore, 75001 Paris, France; and of AXA Courtage
Assurance Mutuelle is 26, rue Louis-le-Grand, 75002 Paris, France.
The name, business address, citizenship, present principal occupation
or employment and the name and business address of any corporation or
organization in which each such employment is conducted, of each executive
officer or member, as applicable, of the Management Board, Supervisory Board, or
the Conseil d'Administration
2
<PAGE>
(French analogue of a Board of Directors) of DLJ, those DLJ Entities that are
corporations, AXF, AXA, Finaxa and the Mutuelles AXA are set forth on Schedules
A through N, respectively, attached hereto.
During the past five (5) years, neither any of the Reporting Persons
nor, to the best knowledge of any of the Reporting Persons, any of the other
persons listed on Schedules A through N attached hereto, has been (i) convicted
in a criminal proceeding (excluding traffic violations or similar misdemeanors)
or (ii) a party to a civil proceeding of a judicial or administrative body of
competent jurisdiction and as a result of such proceeding was or is subject to a
judgment, decree or final order enjoining future violations of, or prohibiting
or mandating activities subject to United States federal or state securities
laws or finding any violation with respect to such laws.
Item 3. Source and Amount of Funds or Other Consideration.
Rawhide Holdings and Rawhide Acquisition have entered into the Voting
Agreement ("Voting Agreement") described in the response to Item 4. Neither
Rawhide Holdings nor Rawhide Acquisition nor any of the other persons listed in
the response to Item 2 has expended any funds in connection with the Voting
Agreement.
Item 4. Purpose of Transaction.
On October 1, 2000, IBP, Rawhide Holdings and Rawhide Acquisition
entered into an Agreement and Plan of Merger (the "Merger Agreement," attached
hereto and made a part hereof as Exhibit 3). The Merger Agreement provides,
among other things, for the merger of Rawhide Acquisition with and into IBP (the
"Merger"), with IBP as the surviving corporation (the "Surviving Corporation").
The Merger contemplates that (i) each Share held by IBP or any subsidiary of IBP
as treasury stock or owned by Rawhide Holdings or any subsidiary of Rawhide
Holdings immediately prior to the Merger will be cancelled and no payment will
be made with respect thereto; (ii) each share of Rawhide Acquisition's common
stock will be converted into and become one Share; and (iii) each Share
outstanding immediately prior to the Merger will be cancelled, extinguished and
converted into and become a right to receive $22.25 in cash per share (other
than those shares as to which dissenters' rights are perfected). The Merger will
become effective at such time as the certificate of merger is duly filed with
the Secretary of State of the State of Delaware or at such later time as is
specified in the certificate of merger (the "Effective Time"). From and after
the Effective Time, the Surviving Corporation will possess all the property,
rights, privileges, immunities, powers and franchises and be subject to all of
the debts, liabilities, obligations, restrictions, disabilities and duties of
IBP and Rawhide Acquisition, all as provided under Delaware Law. The Merger is
subject to customary conditions, including approval and adoption of the Merger
Agreement by the stockholders of IBP. Rawhide Holdings and Rawhide Acquisition
have agreed not to acquire any Shares prior to the closing or the termination of
the Merger Agreement, other than Shares beneficially owned by ADM or the Booth
Creek Investors.
Shortly after the consummation of the Merger, the registration of the
Shares under the Exchange Act will be terminated and the Shares will be
delisted from the New York Stock Exchange. After the Merger, it is expected
that the DLJ Funds will directly beneficially own approximately 61.6% of the
outstanding shares of common stock of Rawhide Holdings. Rawhide Holdings will
own 100% of the outstanding shares of common stock of the Surviving
Corporation.
In connection with the Merger, on October 1, 2000, ADM and the Booth
Creek Investors, stockholders of IBP (the "Stockholders"), entered into the
Voting Agreement with Rawhide Holdings and Rawhide Acquisition (attached hereto
and made a part hereof as Exhibit 4). Pursuant to the Voting Agreement, each
Stockholder has agreed, among other things, to vote its Shares (representing in
the aggregate approximately 16.33% of the outstanding Shares) in favor of
approval of the Merger Agreement.
During the period (the "Agreement Period") beginning on October 1, 2000
and ending on the earlier of (i) the Effective Time (as defined in the Merger
Agreement), (ii) the date of any substantive amendment to the Merger Agreement
(including, without limitation, any amendment that increases the Merger
Consideration (as defined in the Merger Agreement)), which has not been approved
in writing by the Stockholders and (iii) the date of termination of the Merger
Agreement, each Stockholder has agreed to vote its Shares to approve and adopt
the Merger Agreement, the Merger and all agreements related to the Merger and
any actions directly or reasonably related thereto at any meeting or meetings of
the stockholders of IBP, and at any adjournment thereof or pursuant to action by
written consent, at which such Merger Agreement and other related agreements (or
any amended version or versions thereof), or such other actions, are submitted
for the consideration and vote of the stockholders of IBP. The Stockholders have
appointed Rawhide Holdings as their proxy during the Agreement Period to vote
their Shares for and in their name in the above manner.
3
<PAGE>
Each Stockholder has agreed that during the Agreement Period, it will
not vote any of its Shares in favor of the approval of any other merger,
consolidation, sale of assets, reorganization, recapitalization, liquidation or
winding up of IBP or any other extraordinary transaction involving IBP or any
matters related to or in connection therewith, or any corporate action relating
to or the consummation of which would either frustrate the purposes of, or
prevent or delay the consummation of, the transactions contemplated by the
Merger Agreement.
Each Stockholder has agreed that during the Agreement Period, he will
not, directly or indirectly, (i) take any action to solicit, initiate or
encourage any Acquisition Proposal (as defined in the Merger Agreement), (ii)
engage in negotiations or discussions with, or disclose any nonpublic
information relating to IBP or any subsidiary or afford access to the
properties, books or records of IBP or any subsidiary to, or otherwise assist,
facilitate or encourage, any third party that may be considering making, or has
made, an Acquisition Proposal, or (iii) acquire beneficial ownership (as defined
in Rule 13d-3 of the Securities and Exchange Act of 1934) of any Shares in
addition to those Shares set forth in the Voting Agreement (other than pursuant
to or as a result of the Voting Agreement).
The parties to the Voting Agreement contemplate that, promptly
following the Merger, the Board of Directors will be changed so as to consist of
nine directors, one of whom will be nominated by ADM, one of whom will be
nominated by the Booth Creek Investors, one of whom will be Peterson, one of
whom will be Bond (in the case of Peterson and Bond, so long as each remains an
executive officer of IBP) and the remainder of whom (including the Chairman)
will be nominated by MBIII Inc. and certain of its affiliates. In addition,
under certain circumstances, George N. Gillett, Jr. may be appointed as Vice
Chairman of the Surviving Corporation.
ADM and the Booth Creek Investors have also entered into a Letter
Agreement dated October 1, 2000 with MBIII Inc. (attached hereto and made a part
hereof as Exhibit 5), whereby MBIII Inc. has agreed to purchase, immediately
prior to the Merger, certain Shares held by ADM and the Booth Creek Investors at
$22.25 per share subject to the occurrence of certain events specified therein.
Under the terms of the Letter Agreement, MBIII Inc. has agreed to purchase
3,051,400 Shares held by ADM and 2,143,966 Shares held by the Booth Creek
Investors.
Subject to market conditions, the Merger Agreement and other factors,
the DLJ Funds or other affiliates of DLJ may acquire or dispose of Shares from
time to time in future open-market, privately negotiated or other transactions
and may agree with IBP or the Stockholders to amend the Merger Agreement or the
Voting Agreement. In addition, Rawhide Holdings, the DLJ Funds or other
affiliates of DLJ may enter into agreements with third parties (which may
include existing stockholders of IBP) relating to acquisitions of securities to
be issued by the Surviving Corporation or Rawhide, or may effect other similar
agreements or transactions.
At the Effective Time the Shares will become eligible for termination
of registration and will subsequently cease to be listed on any national
securities exchange.
Item 5. Interest in Securities of the Issuer.
Rawhide Holdings and Rawhide Acquisition, pursuant to the Voting
Agreement, have obtained the agreement of ADM and the Booth Creek Investors to
vote in favor of the adoption and approval of the Merger Agreement (as described
in Item 4), and, for the purposes of Rule 13d-3 promulgated under the Exchange
Act, may be deemed to beneficially own, 17,239,353 Shares (the "Rawhide
Shares"), representing, for the purposes of Rule 13d-3, approximately 16.33% of
the outstanding Shares of (IBP). Rawhide Holdings and Rawhide Acquisition
disclaim beneficial ownership of the Rawhide Shares.
Each of the DLJ Entities may be deemed to beneficially own the Rawhide
Shares. However, each of the DLJ Entities disclaims beneficial ownership of the
Rawhide Shares.
As the sole stockholder of DLJCI, DLJ may be deemed, for purposes of
Rule 13d-3 under the Act, to beneficially own indirectly the Rawhide Shares that
may be deemed to be owned beneficially by DLJCI. Because of AXF's ownership
interest in DLJ, AXF may be deemed, for purposes of Rule 13d-3 under the Act, to
beneficially own indirectly the Rawhide Shares that may be deemed to be
beneficially owned indirectly by DLJ. Each of DLJ and AXF disclaims beneficial
ownership of the Rawhide Shares.
Because of AXA's ownership interest in AXF, and the AXA Voting
Trustees' power to vote the AXF shares placed in the AXA Voting Trust, each of
AXA and the AXA Voting Trustees may be deemed, for purposes of Rule 13d-3 under
the Act, to beneficially own indirectly the Rawhide Shares that AXF may be
deemed to
4
<PAGE>
beneficially own indirectly. Because of the direct and indirect ownership
interest in AXA of Finaxa and the Mutuelles AXA, each of Finaxa and the
Mutuelles AXA may be deemed, for purposes of Rule 13d-3 under the Act, to
beneficially own indirectly the Rawhide Shares that AXA may be deemed to
beneficially own indirectly. AXA, Finaxa, the Mutuelles AXA, and the AXA Voting
Trustees expressly disclaim beneficial ownership of any of the Rawhide Shares.
In addition, in the ordinary course of their respective businesses,
certain subsidiaries of DLJ hold an aggregate of approximately 197,130 Shares,
and certain subsidiaries of AXF (other than DLJ and its subsidiaries) hold an
aggregate of approximately 799,892 Shares, in each case in investment advisory
and brokerage accounts.
Item 6. Contracts, Arrangements, Understandings or Relationships with
Respect to Securities of the Issuer.
See response to Item 4.
A copy of each of the Merger Agreement, Voting Agreement and Side
Letter are attached hereto as Exhibits 3, 4 and 5, respectively, and are
incorporated herein by reference.
Except for the agreements described above or in the response to Item 4,
to the best knowledge of the Reporting Persons, there are no contracts,
arrangements, understandings or relationships (legal or otherwise) between the
persons enumerated in Item 2, and any other person, with respect to any
securities of IBP, including, but not limited to, transfer or voting of any of
the securities, finder's fees, joint ventures, loan or option arrangements, puts
or calls, guarantees of profits, division of profits or loss, or the giving or
withholding of proxies.
Item 7. Material to be Filed as Exhibits.
Exhibit 1: Joint Filing Agreement among the Reporting Persons
Exhibit 2: Powers of Attorney
Exhibit 3: Agreement and Plan of Merger dated as of October 1, 2000
among IBP, Inc., Rawhide Holdings Corporation and Rawhide Acquisition
Corporation.
Exhibit 4: Voting Agreement dated October 1, 2000 among Rawhide
Holdings Corporation, Rawhide Acquisition Corporation, Archer-Daniels-Midland
Company, Booth Creek Partners Limited III, LLLP and Jeffrey Joyce.
Exhibit 5: Letter Agreement dated October 1, 2000 among DLJ Merchant
Banking III, Inc., Archer- Daniels-Midland Company, Booth Creek Partners Limited
III, LLLP and Jeffery Joyce.
5
<PAGE>
SIGNATURES
After reasonable inquiry and to the best knowledge and belief of the
undersigned, the undersigned certifies that the information set forth in this
statement is true, complete and correct.
Date: October 11, 2000
Rawhide Holdings Corporation
By: /s/ Ari Benacerraf
----------------------------------
Name: Ari Benacerraf
Title: President
6
<PAGE>
After reasonable inquiry and to the best knowledge and belief of the
undersigned, the undersigned certifies that the information set forth in this
statement is true, complete and correct.
Date: October 11, 2000
Rawhide Acquisition Corporation
By: /s/ Ari Benacerraf
----------------------------------
Name: Ari Benacerraf
Title: President
7
<PAGE>
After reasonable inquiry and to the best knowledge and belief of the
undersigned, the undersigned certifies that the information set forth in this
statement is true, complete and correct.
Date: October 11, 2000
DLJ Merchant Banking Partners III, L.P.
By DLJ Merchant Banking III, Inc.,
as Managing General Partner
By: /s/ Ivy Dodes
-----------------------------------
Name: Ivy Dodes
Title: Vice President
8
<PAGE>
After reasonable inquiry and to the best knowledge and belief of the
undersigned, the undersigned certifies that the information set forth in this
statement is true, complete and correct.
Date: October 11, 2000
DLJ Offshore Partners III, C.V.
By DLJ Merchant Banking III, Inc.,
as Advisory General Partner
By: /s/ Ivy Dodes
-----------------------------------
Name: Ivy Dodes
Title: Vice President
9
<PAGE>
After reasonable inquiry and to the best knowledge and belief of the
undersigned, the undersigned certifies that the information set forth in this
statement is true, complete and correct.
Date: October 11, 2000
DLJ Merchant Banking III, L.P.
By DLJ Merchant Banking III, Inc.,
as Managing General Partner
By: /s/ Ivy Dodes
-----------------------------------
Name: Ivy Dodes
Title: Vice President
10
<PAGE>
After reasonable inquiry and to the best knowledge and belief of the
undersigned, the undersigned certifies that the information set forth in this
statement is true, complete and correct.
Date: October 11, 2000
DLJ Merchant Banking III, Inc.
By: /s/ Ivy Dodes
-----------------------------------
Name: Ivy Dodes
Title: Vice President
11
<PAGE>
After reasonable inquiry and to the best knowledge and belief of the
undersigned, the undersigned certifies that the information set forth in this
statement is true, complete and correct.
Date: October 11, 2000
DLJ ESC II L.P.
By DLJ LBO Plans Management Corporation,
as Managing General Partner
By: /s/ Ivy Dodes
-----------------------------------
Name: Ivy Dodes
Title: Vice President
12
<PAGE>
After reasonable inquiry and to the best knowledge and belief of the
undersigned, the undersigned certifies that the information set forth in this
statement is true, complete and correct.
Date: October 11, 2000
DLJMB Funding III, Inc.
By: /s/ Ivy Dodes
-----------------------------------
Name: Ivy Dodes
Title: Vice President
13
<PAGE>
After reasonable inquiry and to the best knowledge and belief of the
undersigned, the undersigned certifies that the information set forth in this
statement is true, complete and correct.
Date: October 11, 2000
DLJ LBO Plans Management Corporation
By: /s/ Ivy Dodes
-----------------------------------
Name: Ivy Dodes
Title: Vice President
14
<PAGE>
After reasonable inquiry and to the best knowledge and belief of the
undersigned, the undersigned certifies that the information set forth in this
statement is true, complete and correct.
Date: October 11, 2000
DLJ Capital Investors, Inc.
By: /s/ Ivy Dodes
-----------------------------------
Name: Ivy Dodes
Title: Vice President
15
<PAGE>
After reasonable inquiry and to the best knowledge and belief of the
undersigned, the undersigned certifies that the information set forth in this
statement is true, complete and correct.
Date: October 11, 2000
Donaldson, Lufkin & Jenrette, Inc.
By: /s/ Anthony Daddino
-------------------------------
Name: Anthony Daddino
Title: Chief Financial Officer
16
<PAGE>
After reasonable inquiry and to the best knowledge and belief of the
undersigned, the undersigned certifies that the information set forth in this
statement is true, complete and correct.
Date: October 11, 2000
AXA Financial, Inc.
By: /s/ Alvin H. Fenichel
-------------------------------------------
Name: Alvin H. Fenichel
Title: Senior Vice President and Controller
17
<PAGE>
After reasonable inquiry and to the best knowledge and belief of the
undersigned, the undersigned certifies that the information set forth in this
statement is true, complete and correct.
Date: October 11, 2000
AXA
Finaxa
AXA Assurances I.A.R.D. Mutuelle
AXA Assurances Vie Mutuelle
AXA Courtage Assurance Mutuelle
AXA Conseil Vie Assurance Mutuelle
Claude Bebear, as AXA Voting Trustee
Patrice Garnier, as AXA Voting Trustee
Henri de Clermont-Tonnerre, as AXA Voting Trustee
Signed on behalf of each of the above
By: /s/ Alvin H. Fenichel
----------------------------------------------
Name: Alvin H. Fenichel
Title: Attorney-in-fact
18
<PAGE>
Schedule A
Executive Officers and Directors
of
Rawhide Holdings Corporation
The names of the Directors and the names and titles of the Executive
Officers of Rawhide Holdings Corporation ("Rawhide Holdings") and their
principal occupations are set forth below. The Director's or Executive Officer's
business address is that of Rawhide at 277 Park Avenue, New York, New York
10172. Unless otherwise indicated, each occupation set forth opposite an
individual's name refers to Rawhide Holdings and each individual is a United
States citizen.
Name, Business Address Present Principal Occupation
---------------------- ----------------------------
* Ari Benacerraf President and Treasurer; Principal, DLJ
Merchant Banking III, Inc.
* OhSang Kwon Vice President and Secretary; Vice President,
DLJ Merchant Banking III, Inc.
_________________________
* Director
19
<PAGE>
Schedule B
Executive Officers and Directors
of
Rawhide Acquisition Corporation
The names of the Directors and the names and titles of the Executive
Officers of Rawhide Acquisition Corporation ("Rawhide Acquisition") and their
principal occupations are set forth below. The Director's or Executive Officer's
business address is that of Rawhide at 277 Park Avenue, New York, New York
10172. Unless otherwise indicated, each occupation set forth opposite an
individual's name refers to Rawhide Acquisition and each individual is a United
States citizen.
Name, Business Address Present Principal Occupation
---------------------- ----------------------------
* Ari Benacerraf President and Treasurer; Principal, DLJ
Merchant Banking III, Inc.
* OhSang Kwon Vice President and Secretary; Vice President,
DLJ Merchant Banking III, Inc.
_________________________
* Director
20
<PAGE>
Schedule C
Executive Officers and Directors
of
DLJ Merchant Banking III, Inc.
The names of the Directors and the names and titles of the Executive
Officers of DLJ Merchant Banking III, Inc. ("MBIII Inc.") and their principal
occupations are set forth below. The Director's or Executive Officer's business
address is that of MBIII Inc. at 277 Park Avenue, New York, New York 10172.
Unless otherwise indicated, each occupation set forth opposite an individual's
name refers to MBIII Inc. and each individual is a United States citizen.
Name, Business Address Present Principal Occupation
---------------------- ----------------------------
* Lawrence M.v.D. Schloss Chairman
* Nicole S. Arnaboldi Managing Director
* Thompson Dean Managing Partner
Carlos Garcia Managing Director
* Peter T. Grauer Managing Director
* David L. Jaffe Managing Director
* Hamilton E. James Managing Director; Chairman, Banking Group,
Managing Director, Donaldson, Lufkin &
Jenrette, Inc.
* Karl R. Wyss Managing Director
* Reid Perper Managing Director
Susan Schnabel Managing Director
Ivey Dodes Senior Vice President and Assistant Secretary
Edward Poletti Principal and Controller
Michael Iskow Principal
Majorie White Secretary and Treasurer
Stuart Flamberg Director of Taxes
Mark Competiello Vice President and Tax Manager
_________________________
* Director
21
<PAGE>
Schedule D
Executive Officers and Directors
of
DLJMB Funding, III, Inc.
The names of the Directors and the names and titles of the Executive
Officers of DLJ MB Funding, III, Inc. ("Funding III") and their business
addresses and principal occupations are set forth below. If no address is given,
the Director's or Executive Officer's business address is that of Funding III at
277 Park Avenue, New York, New York 10172. Unless otherwise indicated, each
occupation set forth opposite an individual's name refers to Funding III and
each individual is a United States citizen.
Name, Business Address Present Principal Occupation
---------------------- ----------------------------
* Anthony F. Daddino President; Executive Vice President,
Donaldson, Lufkin & Jenrette, Inc.
* Charles J. Hendrickson Treasurer; Senior Vice President and
Treasurer, Donaldson, Lufkin & Jenrette, Inc.
* Marjorie S. White Secretary; Vice President and Secretary,
Donaldson, Lufkin & Jenrette, Inc.
Nicole S. Arnaboldi Chief Operating Officer
Ivy B. Dodes Senior Vice President
Edward A. Poletti Senior Vice President and Controller
Michael S. Iskow Senior Vice President
Mark A. Competiello Vice President and Tax Manager
Stuart S. Flamberg Vice President and Director of Taxes
_________________________
* Director
22
<PAGE>
Schedule E
Executive Officers and Directors
of
DLJ LBO Plans Management Corporation
The names of the Directors and the names and titles of the Executive
Officers of DLJ LBO Plans Management Corporation ("LBO") and their business
addresses and principal occupations are set forth below. Each Director's or
Executive Officer's business address is that of LBO at 277 Park Avenue, New
York, New York 10172. Unless otherwise indicated, each occupation set forth
opposite an individual's name refers to LBO and each individual is a United
States citizen.
Name, Business Address Present Principal Occupation
---------------------- ----------------------------
* Anthony F. Daddino President; Executive Vice President
and Chief Financial Officer,
Donaldson, Lufkin & Jenrette, Inc.
Vincent DeGiaimo Vice President; Senior Vice
President and Managing Director,
Donaldson, Lufkin & Jenrette, Inc.
* Marjorie S. White Vice President and Secretary; Vice
President, Donaldson, Lufkin &
Jenrette, Inc.
Mark A. Competiello Vice President and Tax Manager
Ivy B. Dodes Vice President and Assistant
Secretary
John S. Ficara Vice President
Stuart S. Flamberg Director of Taxes
Charles J. Hendrickson Treasurer
Matthew Kelly Vice President
Edward A. Poletti Vice President and Treasurer
Osamu Walanabe Vice President and Treasurer
Arthur Zuckerman Vice President
David Wilson Senior Vice President
James D. Allen Vice President
Richard A. Scardina Vice President
_________________________
* Director
23
<PAGE>
Schedule F
Executive Officers and Directors
of
DLJ Capital Investors, Inc.
The names of the Directors and the names and titles of the Executive
Officers of DLJ Capital Investors, Inc. ("DLJCI") and their business addresses
and principal occupations are set forth below. If no address is given, the
Director's or Executive Officer's business address is that of DLJCI at 277 Park
Avenue, New York, New York 10172. Unless otherwise indicated, each occupation
set forth opposite an individual's name refers to DLJCI and each individual is a
United States citizen.
Name, Business Address Present Principal Occupation
---------------------- ----------------------------
* John S. Chalsty Chairman; Chairman, Donaldson, Lufkin &
Jenrette, Inc.
* Hamilton E. James Chief Executive Officer; Chairman, Banking
Group, Managing Director, Donaldson, Lufkin
& Jenrette, Inc.
* Joe L. Roby Chief Operating Officer; President and Chief
Executive Officer, Donaldson, Lufkin &
Jenrette, Inc.
* Anthony F. Daddino Executive Vice President; Executive Vice
President and Chief Financial Officer,
Donaldson, Lufkin & Jenrette, Inc.
Marjorie S. White Secretary; Vice President and Secretary,
Donaldson, Lufkin & Jenrette, Inc.
Charles J. Hendrickson Treasurer
Stuart S. Flamberg Director of Taxes
Mark A. Competiello Vice President and Tax Manager
_________________________
* Director
24
<PAGE>
Schedule G
Executive Officers and Directors
of
Donaldson, Lufkin & Jenrette, Inc.
The names of the Directors and the names and titles of the Executive
Officers of Donaldson, Lufkin & Jenrette, Inc. ("DLJ") and their business
addresses and principal occupations are set forth below. If no address is given,
the Director's or Executive Officer's business address is that of DLJ at 277
Park Avenue, New York, New York 10172. Unless otherwise indicated, each
occupation set forth opposite an individual's name refers to DLJ and each
individual is a United States citizen.
Name, Business Address Present Principal Occupation
---------------------- ----------------------------
* John S. Chalsty Chairman
* Joe L. Roby President and Chief Executive Officer
* Henri de Castries (1) Chairman of the Management Board,
AXA AXA
23, avenue Matignon
75008 Paris, France
* Denis Duverne (1) Senior Vice President - International
AXA Life, AXA
23, avenue Matignon
75008 Paris, France
* Louis Harris Chairman and Chief Executive Officer,
LH Research LH Research (research)
152 East 38th Street
New York, New York 10016-2605
* Henri G. Hottinguer (3) Chairman of the Supervisory Board of
Credit Suisse Hottinguer Paris
43, rue Taitbout
75009 Paris, France
* W. Edwin Jarmain (2) President, Jarmain Group Inc. (private
Jarmain Group Inc. investment holding company)
Suite 2525, Box 36
121 King Street, West
Toronto, Ontario
M5H 3T9 Canada
* Francis Jungers Retired
19880 NW Nestucca Drive
Portland, Oregon 97229
* Edward D. Miller President and Chief Executive Officer,
1290 Avenue of the Americas AXA Financial Inc.
New York, New York 10104
25
<PAGE>
Name, Business Address Present Principal Occupation
---------------------- ----------------------------
* W. J. Sanders, III Chairman and Chief Executive Officer,
Advanced Micro Devices, Inc. Advanced Micro Devices
901 Thompson Place
Sunnyvale, CA 94086
* Stanley B. Tulin Executive Vice President and Chief
Financial Officer, AXA Financial Inc.
* Hamilton E. James Chairman, Banking Group
* Anthony F. Daddino Executive Vice President and Chief
Financial Officer
* David DeLucia Head, Fixed Income Division
* Stuart M. Robbins Managing Director, Global Institutional
Equities Group
* Jane Mack Gould Senior Vice President and Portfolio
Manager, Alliance
* Michael Hegarty Vice Chairman and Chief Operating
Officer, AXA Financial
_________________________
* Director
(1) Citizen of the Republic of France
(2) Citizen of Canada
(3) Citizen of Switzerland
26
<PAGE>
Schedule H
Executive Officers and Directors
of
AXA Financial, Inc.
The names of the Directors and the names and titles of the Executive
Officers of AXA Financial, Inc. ("AXF") and their business addresses and
principal occupations are set forth below. If no address is given, the
Director's or Executive Officer's business address is that of AXF at 1290 Avenue
of the Americas, New York, New York 10104. Unless otherwise indicated, each
occupation set forth opposite an individual's name refers to AXF and each
individual is a United States citizen.
Name, Business Address Present Principal Occupation
---------------------- ----------------------------
* Claude Bebear (1) Chairman of the Supervisory Board, AXA
AXA
25, avenue Matignon
75008 Paris, France
* John S. Chalsty Chairman, Donaldson, Lufkin & Jenrette,
Donaldson, Lufkin & Jenrette, Inc. Inc. (investment banking)
277 Park Avenue
New York, NY 10172
* Francoise Colloc'h (1) Member of the AXA Management Board and
AXA Group Executive President, AXA
25, avenue Matignon
75008 Paris, France
* Henri de Castries (1) Chairman of the Board; Chairman of the
AXA Management Board and Chief Executive
25, avenue Matignon Officer, AXA
75008 Paris, France
* Claus-Michael Dill Chairman of the Management Board, AXA
Gereonsdriesch 9-11 Colonia Konzern AG
Postfach 10-7-26
50670 Cologne, Germany
* Joseph L. Dionne Retired Chairman of the Board and Chief
198 N. Wilton Road Executive Officer, The McGraw-Hill
New Canaan, CT 06840 Companies (publishing)
* Jean-Rene Fourtou (1) Vice Chairman of the Management Board,
Aventis Aventis
25 Quai Paul Doumer
92408 Courbevoie Cedex
France
Robert E. Garber Executive Vice President and General
Counsel; Executive Vice President and
Chief Legal Officer, The Equitable Life
Assurance Society of the United States
27
<PAGE>
Name, Business Address Present Principal Occupation
---------------------- ----------------------------
* Donald J. Greene, Esq. Of Counsel, LeBoeuf, Lamb, Greene &
LeBoeuf, Lamb, Greene & MacRae, L.L.P. (law firm)
& MacRae, L.L.P.
125 West 55th Street
New York, NY 10019
* Anthony J. Hamilton (2) Group Chairman and Chief Executive
Fox-Pitt, Kelton Group Limited Officer, Fox-Pitt, Kelton Group Limited
35 Wilson Street (investment banking firm)
London, England EC2M 2SJ
* John T. Hartley Retired Chairman and Chief Executive
Harris Corporation Officer, currently Director, Harris
1025 NASA Boulevard Corporation (manufacturer of electronic,
Melbourne, FL 32919 telephone and copying systems)
* John H. F. Haskell, Jr. Senior Advisor, Warburg Dillon Read LLC
Warburg Dillon Read LLC (investment banking firm)
299 Park Avenue
New York, NY 10171
* Michael Hegarty Senior Vice Chairman and Chief Operating
Officer; President and Chief Operating
Officer, The Equitable Life Assurance
Society of the United States
* Nina Henderson Corporate Vice President, BestFoods (food
BestFoods manufacturer)
700 Sylvan Avenue
Englewood, NJ 07632
* W. Edwin Jarmain (3) President, Jarmain Group Inc. (private
Jarmain Group Inc. investment holding company)
Suite 2525
121 King Street West
Toronto, Ontario M5H 3T9
Canada
* Edward D. Miller President and Chief Executive Officer;
Chairman and Chief Executive Officer, The
Equitable Life Assurance Society of the
United States
Peter D. Noris Executive Vice President and Chief
Investment Officer; Executive Vice
President and Chief Investment Officer,
The Equitable Life Assurance Society of
the United States
* Didier Pineau-Valencienne(1) Vice Chairman, Credit Suisse First Boston
64, rue de Miromesnil (investment banking firm); Honorary
75008 Paris, France Chairman, Schneider and Square D
28
<PAGE>
Name, Business Address Present Principal Occupation
---------------------- ----------------------------
* George J. Sella, Jr. Retired Chairman and Chief Executive
American Cyanamid Company Officer, American Cyanamid Company
P.O. Box 397 (manufacturer of pharmaceutical products
Newton, NJ 07860 and agricultural products)
Jose Suquet Senior Executive Vice President; Senior
Executive Vice President and Chief
Distribution Officer, The Equitable Life
Assurance Society of the United States
* Peter J. Tobin Dean, Peter J. Tobin College of Business
College of Business Administration, St. John's University
Administration (education)
St. John's University
8000 Utopia Parkway
Bent Hall
Jamaica, NY 11439
Stanley B. Tulin Vice Chairman of the Board and Chief
Financial Officer; Vice Chairman of the
Board and Chief Financial Officer, The
Equitable Life Assurance Society of the
United States
Gregory G. Wilcox Executive Vice President; Executive Vice
President, Equitable Life
* Dave H. Williams Chairman, Alliance Capital Management
Alliance Capital Corporation (investment adviser)
Management Corporation
1345 Avenue of the Americas
New York, NY 10105
_________________________
* Director
(1) Citizen of the Republic of France
(2) Citizen of United Kingdom
(3) Citizen of Canada
29
<PAGE>
Schedule I
Members of the Management Board, Supervisory Board and the Executive Officers
of
AXA
The names and titles of the Members of the Management Board, the
Supervisory Board and the Executive Officers of AXA and their business addresses
and principal occupations are set forth below. If no address is given, the
Member's business is that of AXA 25, avenue Matignon, 75008 Paris, France.
Unless otherwise indicated, each occupation set forth opposite an individual's
name refers to AXA and each individual is a citizen of the Republic of France.
Members of the Management Board
Name, Business Address Present Principal Occupation
---------------------- ----------------------------
Henri de Castries Chairman of the Management Board
Edward Miller Vice Chairman of the Management
1290 Avenue of the Americas Board; President and Chief Executive
New York, NY 10104 Officer, AXA Financial; Chairman &
Chief Executive Officer, The Equitable
Life Assurance Society of the United
States
Claude Tendil Vice Chairman of the Management
Board; Chairman and Chief Executive
Officer of the French Insurance
Companies
Gerard de La Martiniere Group Executive President Finance,
Control and Strategy
Francoise Colloc'h Group Executive President, Human
Resources, Communications and
Synergies
30
<PAGE>
Members of the Supervisory Board
Name, Business Address Present Principal Occupation
---------------------- ----------------------------
Claude Bebear Chairman of the Supervisory Board
Antoine Bernheim General Partner of Lazard Freres
Lazard Freres (investment banking)
121, Bd Haussmann
75008 PARIS
Jacques Calvet Vice Chairman of the Supervisory
7, rue de Tilsitt Board of Galeries Lafayette
75017 PARIS (commerce)
Henri de Clermont-Tonnerre Chairman of the Supervisory Board of
ERSA Qualis SCA (transportation)
90, rue de Miromesnil
75008 PARIS
David Dautresme General Partner of Lazard Freres
Lazard Freres (investment banking)
121, boulevard Haussmann
75008 PARIS
Jean-Rene Fourtou Vice Chairman of the Management
Aventis Board of Aventis (manufacturer of
67000 Strasbourg chemicals and agricultural products)
Michel Francois-Poncet Director of BNP Paribas (financial
BNP Paribas services and banking)
3, rue d'Antin
75002 PARIS
Patrice Garnier Retired
Anthony J. Hamilton(1) General Partner of Fox-Pitt, Kelton,
Fox-Pitt, Kelton Group Ltd. Ltd. (investment banking firm)
35 Wilson Street
London EC2M 2SJ
ENGLAND
Henri Hottinguer(2) Chairman of the Supervisory Board of
Credit Suisse Hottinguer Paris Credit Suisse Hottinguer Paris
43, rue Taitbout
75009 PARIS
31
<PAGE>
Name, Business Address Present Principal Occupation
---------------------- ----------------------------
Richard Jenrette(3) Senior Advisor of Donaldson, Lufkin
DLJ & Jenrette (investment banking)
277 Park Avenue
New York, NY 10172 - USA
Henri Lachmann Chairman and Chief Executive Officer
SCHNEIDER Electric of Schneider Electric (electric
64-70, Av. Jean-Baptiste Clement equipment)
92646 BOULOGNE
CEDEX
Gerard Mestrallet Chairman and Chief Executive Officer
Suez - Lyonnaise des Eaux of Suez Lyonnaise des Eaux (finance)
1, rue d'Astorg
75008 PARIS
Friedel Neuber Chairman of the Supervisory Board of
Westdeutsche Landesbank Preussag AG (industry)
Gironzentrale
Herzogstrasse 15
D-40217
DUSSELDORF
GERMANY
Alfred von Oppenheim Chairman of the Supervisory Board of
SAL OPPENHEIM Jr. & Cie SAL Oppenheim Jr. & Cie
Unter Sachsenhausen 4
50667 KOLN
("llemagne)
Michel Pebereau Chairman and Chief Executive Officer
B.N.P. Paribas of B.N.P. Paribas (banking)
16, boulevard des Italiens
75002 PARIS
Didier Pineau-Valencienne Honorary Chairman of Schneider
64, rue de Miromesnil Electric (electric equipment)
75008 Paris, France
Bruno Roger Senior Manager of Lazard Freres
Lazard Freres (investment banking)
121, boulevard Haussman
75008 PARIS
_________________
(1) Citizen of the United Kingdom
(2) Citizen of Switzerland
(3) Citizen of the United States of America
32
<PAGE>
Executive Officers
Name, Business Address Present Principal Occupation
---------------------- ----------------------------
Claude Bebear Chairman of the Supervisory Board
Jean-Luc Bertozzi Executive Officer of AXA France
Tour AXA Assurances
1, place des Saisons
92083 PARIS LA DEFENSE
Donald Brydon(1) Chief Executive of AXA Investment
AXA Investment Managers Managers Europe
60 Gracechurch Street
London EC3V 0HR
U.K.
Henri de Castries Chairman of the Management Board of AXA
Francoise Colloc'h Member of the Management Board;
Group Executive President, Human
Resources, Communications and
Synergies
Michael Hegarty(3) Senior Vice Chairman and Chief
AXA Financial, Inc. Operating Officer of AXA Financial, Inc.;
1290 Avenue of the Americas President and Chief Operating Officer of
New York, NY 10104 The Equitable Life Assurance Society of
USA the United States
Claus-Michael Dill(4) Chairman of the Management Board of
AXA Colonia Konzern AXA Colonia Konzern AG
Gereondriesch 9-11
50670 Koln
Germany
Gerard de La Martiniere Member of the Management Board;
Group Executive President Finance,
Control and Strategy
Edward Miller (3) Vice Chairman of the Management
AXA Financial, Inc. Board; President and Chief Executive
1290 Avenue of the Americas Officer of AXA Financial, Inc.; Chairman
New York, NY 10104 and Chief Executive Officer of the
USA Equitable Life Assurance Society of the
United States
33
<PAGE>
Name, Business Address Present Principal Occupation
---------------------- ----------------------------
Jean-Marie Nessi Chairman and Chief Executive Officer of
AXA Re AXA Reassurance
39, rue de colisee
75008 PARIS
Michel Pinault Head of Asia-Pacific Business Unit
Claude Tendil Member of the Management Board;
Chairman and Chief Executive Officer of
the Insurance Companies in France
Mark Wood Managing Director of Sun Life &
SLPH Provincial Holdings (insurance)
107 Cheapside
London EC2V 6DU
U.K.
Alfred Bouckaert (5) Chief Executive Officer of AXA Royale
25 boulevard du Souverain Belge
1170 Bruxelles
Belgium
Claude Cargou Chief Information Officer
Denis Duverne Group Executive Vice President Finance,
Control and Strategy
Les Owen (9) Managing Director of AXA Asia Pacific
AXA Asia Pacific Holdings Holdings
447 Collins Street
Melbourne - Victoria 3000
Australia
Patrick Thourot Chief of the Central Actuarial Department
___________________
(1) Citizen of the United Kingdom
(2) Citizen of Switzerland
(3) Citizen of the United States of America
(4) Citizen of Germany
(5) Citizen of Belgium
34
<PAGE>
Schedule J
Executive Officers and
Members of Conseil d'Administration
of
FINAXA
The names of the Members of Conseil d'Administration and the names and
titles of the Executive Officers of Finaxa and their business addresses and
principal occupations are set forth below. If no address is given, the Member's
or Executive Officer's business address is that of Finaxa at 23, avenue
Matignon, 75008 Paris, France. Unless otherwise indicated, each occupation set
forth opposite an individual's name refers to Finaxa and each individual is a
citizen of the Republic of France.
Name, Business Address Present Principal Occupation
---------------------- ----------------------------
* Claude Bebear Chairman and Chief Executive Officer;
Chairman of the Supervisory Board, AXA
* Henri de Castries Chairman of the Management Board of AXA
AXA
* Henri de Clermont-Tonnerre Chairman of the Supervisory Board,
ERSA Qualis SCA (transportation)
90 rue de Miromensnil
75008 Paris, France
* Jean-Rene Fourtou Vice Chairman of the Management Board of
Permanent representative of Avertis (manufacturer of chemicals and
AXA Assurances agricultural products)
I.A.R.D. Mutuelle
Aventis
6700 Strasbourg, France
* Pierre de Waziers Companies Manager (services)
Societe Gramont
25 rue Sainte Lucie
75018 Paris, FRANCE
* Henri Hottinguer (1) Chairman of the Supervisory Board of
Credit Suisse Paris Credit Suisse Hottinguer Paris (banking)
HOTTINGUER
43, rue Taitbout
75009 Paris, France
* Paul Hottinguer (1) Chairman of Financiere Hottinguer
Financiere HOTTINGUER (banking)
43, rue Taitbout
75009 Paris, France
* Henri Lachmann Chairman and Chief Executive Officer,
SCHNEIDER Schneider Electric (electric equipment)
64-70, Av. Jean-Baptiste Clement
92646 Boulgone Cedex
35
<PAGE>
Name, Business Address Present Principal Occupation
---------------------- ----------------------------
* Michael Francois-Poncet Director, Banque Paribas
BNP Paribas (banking)
3, rue d'Antin
75002 Paris, France
* Christien Manset Chairman and Chief Executive Officer of
7, rue Meryerbeer Compagnie Financiere Ottomane
75009 Paris, France
* Georges Rousseau Retired
2, rue des Mouettes
76130 Mont Saint Aignan, France
Emilio Ybarra (2) Chairman, Banco Bilbao Vizcaya (banking)
Paseo de la Castillone, 8
28046 Madrid, Spain
* Gerard de la Martiniere Chief Executive Officer; Member of the
AXA Management Board of AXA
__________________
* Member, Conseil d'Administration
(1) Citizen of Switzerland
(2) Citizen of Spain
36
<PAGE>
Schedule K
Executive Officers and
Members of Conseil d'Administration
of
AXA ASSURANCES I.A.R.D. MUTUELLE
The names of the Members of Conseil d'Administration and the names and
titles of the Executive Officers of AXA Assurances I.A.R.D. Mutuelle and their
business addresses and principal occupations are set forth below. If no address
is given, the Member's or Executive Officer's business address is that of AXA
Assurances I.A.R.D. Mutuelle at 370, rue Saint-Honore, 75001 Paris, France.
Unless otherwise indicated, each occupation set forth opposite an individual's
name refers to AXA Assurances I.A.R.D. Mutuelle and each individual is a citizen
of the Republic of France.
Name, Business Address Present Principal Occupation
---------------------- ----------------------------
* Claude Bebear Chairman; Chairman of the Supervisory
AXA Board of AXA
25, avenue Matignon
75008 PARIS
* Henri Lachmann Vice President; Chairman and Chief
SCHNEIDER Electric Executive Officer of Schneider Electric
64-70, Av. Jean-Baptiste Clement (electric equipment)
92646 BOULOGNE CEDEX
* Claude Tendil Vice Chairman of the Management Board of
AXA AXA; Chairman and Chief Executive
25, avenue Matignon Officer - French Insurance companies
75008 PARIS
Francois Pierson Executive Officer of AXA France
Tour AXA Assurances
1, place des Saisons
92083 PARIS LA DEFENSE
* Henri de Castries Chairman of the Management Board of AXA
AXA
25, avenue Matignon
* Jean-Rene Fourtou Vice Chairman of the Management Board of
Aventis Aventis (manufacturer of chemicals and
67000 Strasbourg agricultural products)
* Francois Richer Retired
* Georges Rousseau Retired
2, rue des Mouettes
76130 Mont Saint Aignan, France
* Francis Vaudour Chief Executive Officer, Segafredo
14, boulevard Industriel Zanetti France S.A. (coffee importing
76301 Sotteville les Rouen, and processing)
France
37
<PAGE>
Name, Business Address Present Principal Occupation
---------------------- ----------------------------
* Jean-Pierre Chaffin Representing Chairman of Federation de la Matallurgie
ASSSE Federation de la Metallurgie
CFE-CGC
5, rue La Bruyere
75009 PARIS
* Jean de Ribes Manager
Fortuny Fortune
Conseil
5 avenue Percier
75008 PARIS
* Octave Manset President of Compagnie Financiere
BMW France Ottomane
78886 St. Quentin en Yuelynes
* Pierre de Waziers Companies Manager (services)
Societe Gramont
25 rue Sainte Lucie
75018 Paris, FRANCE
_______________
* Member, Conseil d'Administration
38
<PAGE>
Schedule L
Executive Officers and
Members of Conseil d'Administration
of
AXA ASSURANCES VIE MUTUELLE
The names of the Members of Conseil d'Administration and the names and
titles of the Executive Officers of AXA Assurances Vie Mutuelle and their
business addresses and principal occupations are set forth below. If no address
is given, the Member's or Executive Officer's business address is that of AXA
Assurances Vie Mutuelle at 370, rue Saint-Honore, 75001 Paris, France. Unless
otherwise indicated, each occupation set forth opposite an individual's name
refers to AXA Assurances Vie Mutuelle and each individual is a citizen of the
Republic of France.
Name, Business Address Present Principal Occupation
---------------------- ----------------------------
* Claude Bebear Chairman; Chairman of the Supervisory
AXA Board of AXA
25, avenue Matignon
75008 PARIS
* Henri Lachmann Vice President; Chairman and Chief
SCHNEIDER Electric Executive Officer of Schneider Electric
64-70, Av. Jean-Baptiste Clement (electric equipment)
92646 BOULOGNE CEDEX
* Claude Tendil Vice Chairman of the Management Board of
AXA AXA; Chairman and Chief Executive
25, avenue Matignon Officer - French Insurance companies
75008 PARIS
Francois Pierson Executive Officer of AXA France
Tour AXA Assurances
1, place des Saisons
92083 PARIS LA DEFENSE
* Henri de Castries Chairman of the Management Board of AXA
AXA
25, avenue Matignon
75008 PARIS
* Jean-Rene Fourtou Vice Chairman of the Management Board of
Aventis Aventis (manufacturer of chemicals and
67000 Strasbourg agricultural products)
* Henri de Clermont-Tonnerre Chairman of the Supervisory Board of
ERSA Qualis SCA (transportation)
90, rue de Miromesnil
75008 PARIS
* Francois Richer Retired
* Georges Rousseau Retired
39
<PAGE>
Name, Business Address Present Principal Occupation
---------------------- ----------------------------
* Jean-Pierre Chaffin Representing Chairman
ASSSE Federation de la Metallurgie
CFE-CGC
5, rue La Bruyere
75009 PARIS
* Jean de Ribes Manager
Fortuny Fourtune
Conseil
5 avenue Percier
75008 PARIS
* Octave Manset President of Compagnie Financiere
BMW France Ottomane
78886 St. Quentin en Yuelynes
* Pierre de Waziers Companies Manager (services)
Societe Gramont
25 rue Sainte Lucie
75018 Paris, FRANCE
--------------
* Member, Conseil d'Administration
40
<PAGE>
Schedule M
Executive Officers and
Members of Conseil d'Administration
of
AXA COURTAGE ASSURANCE MUTUELLE
The names of the Members of Conseil d'Administration and the names and
titles of the Executive Officers of AXA Courtage Assurance Mutuelle and their
business addresses and principal occupations are set forth below. If no address
is given, the Member's or Executive Officer's business address is that of AXA
Courtage Assurance Mutuelle at 26, rue de Louis-le-Grand, 75002 Paris, France.
Unless otherwise indicated, each occupation set forth opposite an individual's
name refers to AXA Courtage Assurance Mutuelle and each individual is a citizen
of the Republic of France.
Name, Business Address Present Principal Occupation
---------------------- ----------------------------
* Claude Bebear Chairman; Chairman of the Supervisory
AXA Board of AXA
25, avenue Matignon
75008 PARIS
* Henri Lachmann Vice President; Chairman and Chief
SCHNEIDER Electric Executive Officer of Schneider Electric
64-70, Av. Jean-Baptiste Clement (electric equipment)
92646 BOULOGNE CEDEX
* Claude Tendil Vice Chairman of the Management Board of
AXA AXA; Chairman and Chief Executive
25, avenue Matignon Officer - French Insurance companies
75008 PARIS
Jacques Deparis Executive Officer of AXA Courtage
AXA Courtage I.A.R.D. and AXA Collectives
26, rue Louis le Grand
75002 PARIS
* Henri de Castries Chairman of the Management Board of AXA
AXA
25, avenue Matignon
75008 PARIS
* Jean-Rene Fourtou Vice Chairman of the Management Board of
Aventis Aventis (manufacturer of chemicals and
67000 Strasbourg agricultural products)
* Patrice Garnier Retired
* Francis Cordier Retired
* Georges Rousseau Retired
* Gerard Coutelle Retired
41
<PAGE>
Name, Business Address Present Principal Occupation
---------------------- ----------------------------
* Jean-Pierre Chaffin Representing Chairman
ASSSE Federation de la Metallurgie
CFE-CGC
5, rue La Bruyere
75009 PARIS
* Jean de Ribes Manager
Fortuny Fourtune
Conseil
5 avenue Percier
75008 PARIS
* Pierre de Waziers Companies Manager (services)
Societe Gramont
25 rue Sainte Lucie
75018 Paris, FRANCE
_______________
* Member, Conseil d'Administration
42
<PAGE>
Schedule N
Executive Officers and
Members of Conseil d'Administration
of
AXA CONSEIL VIE ASSURANCE MUTUELLE
The names of the Members of Conseil d'Administration and the names and
titles of the Executive Officers of AXA Conseil Vie Assurance Mutuelle and their
business addresses and principal occupations are set forth below. If no address
is given, the Member's or Executive Officer's business address is that of AXA
Conseil Vie Assurance Mutuelle at 370, rue Saint-Honore, 75001 Paris, France.
Unless otherwise indicated, each occupation set forth opposite an individual's
name refers to Alpha Assurances Vie Mutuelle and each individual is a citizen of
the Republic of France.
Name, Business Address Present Principal Occupation
---------------------- ----------------------------
* Claude Bebear Chairman; Chairman of the Supervisory
AXA Board of AXA
25, avenue Matignon
75008 PARIS
* Henri Lachmann Vice President; Chairman and Chief
SCHNEIDER Electric Executive Officer of Schneider Electric
64-70, Av. Jean-Baptiste Clement (electric equipment)
92646 BOULOGNE CEDEX
* Claude Tendil Vice Chairman of the Management Board of
AXA AXA; Chairman and Chief Executive
25, avenue Matignon Officer - French Insurance companies
75008 PARIS
* Henri de Castries Chairman of the Management Board of AXA
AXA
25, avenue Matignon
75008 PARIS
* Jean-Rene Fourtou Vice Chairman of the Management Board of
Aventis Aventis (manufacturer of chemicals and
67000 Strasbourg agricultural products)
* Partrice Garnier Retired
* Francis Vaudour Retired
* Henri de Clermont-Tonnerre Chairman of the Supervisory Board of
ERSA Qualis SCA (transportation)
90 rue de Miromesnil
75008 PARIS
* Pierre de Waziers Companies Manager (services)
Societe Gramont
25 rue Sainte Lucie
75018 Paris, FRANCE
_______________
* Member, Conseil d'Administration
43
<PAGE>
EXHIBIT 1
Joint Filing Agreement
In accordance with Rule 13d-1(k) under the Securities Exchange Act of 1934,
as amended, each of the persons named below agrees to the joint filing of a
Statement on Schedule 13D (including amendments thereto) with respect to the
common stock, par value $0.05, of IBP, inc., a Delaware corporation and further
agrees that this Joint Filing Agreement be included as an exhibit to such
filings provided that, as contemplated by Section 13d-1(k)(l)(ii), no person
shall be responsible for the completeness or accuracy of the information
concerning the other persons making the filing, unless such person knows or has
reason to believe that such information is inaccurate. This Joint Filing may be
executed in any number of counterparts, all of which together shall constitute
one and the same instrument.
Rawhide Holdings Corporation Rawhide Acquisition Corporation
By: /s/ Ari Benacerraf By: /s/ Ari Benacerraf
------------------ ------------------
Name: Ari Benacerraf Name: Ari Benacerraf
Title: President Title: President
DLJ Merchant Banking Partners III, L.P. DLJ ESC II, L.P.
by: DLJ Merchant Banking III, Inc. by: DLJ LBO Plans Management
its: Managing General Partner Corporation
its: Managing General Partner
By: /s/ Ivy Dodes
By: /s/ Ivy Dodes -------------
------------- Name: Ivy Dodes
Name: Ivy Dodes Title: Vice President
Title: Vice President
DLJMB Funding III, Inc.
DLJ Offshore Partners III, C.V.
by: DLJ Merchant Banking III, Inc. By: /s/ Ivy Dodes
its: Advisory General Partner -------------
Name: Ivy Dodes
Title: Vice President
By: /s/ Ivy Dodes
------------- DLJ Capital Investors, Inc.
Name: Ivy Dodes
Title: Vice President
By: /s/ Ivy Dodes
DLJ Merchant Banking III, L.P. -------------
by: DLJ Merchant Banking III, Inc. Name: Ivy Dodes
its: Managing General Partner Title: Vice President
DLJ LBO Plans Management Corporation
By: /s/ Ivy Dodes
------------- By: /s/ Ivy Dodes
Name: Ivy Dodes -------------
Title: Vice President Name: Ivy Dodes
Title: Vice President
DLJ Merchant Banking III, Inc.
Donaldson, Lufkin & Jenrette, Inc.
By: /s/ Ivy Dodes
------------- By: /s/ Anthony Daddino
Name: Ivy Dodes -------------------
Title: Vice President Name: Anthony Daddino
Title: Chief Financial Officer
44
<PAGE>
AXA Financial, Inc. AXA
Finaxa
AXA Assurances I.A.R.D. Mutuelle
By: /s/ Alvin H. Fenichel AXA Assurances Vie Mutuelle
--------------------- AXA Courtage Assurance Mutuelle
Name: Alvin H. Fenichel AXA Conseil Vie Assurance Mutuelle
Title: Senior Vice President Claude Bebear, as AXA Voting Trustee
and Controller Patrice Garnier, as AXA Voting Trustee
Henri de Clermont-Tonnerre, as AXA
Voting Trustee
Signed on behalf of each of the above
By: /s/ Alvin H. Fenichel
---------------------
Name: Alvin H. Fenichel
Title: Attorney-in-fact
45
<PAGE>
EXHIBIT 2
Power of Attorney
AXA, a societe anonyme organized under the laws of the Republic of
France (the "Corporation"), hereby constitutes and appoints each of Richard V.
Silver, Henry Q. Conley, Alvin H. Fenichel and Allen J. Zabusky, acting singly,
as the true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for the Corporation and in the name, place and
stead of the Corporation, in any and all capacities, to execute for and on
behalf of the Corporation, all Schedules 13D and Schedules 13G as required by
the Securities Exchange Act of 1934, as amended, and any and all amendments
thereto, and to file the same, with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission, the issuer
and relevant stock exchanges (individually, each a "Filing"); provided, however,
that unless specifically instructed in writing by the Corporation, this Power of
Attorney does not authorize any of the above-listed attorneys-in-fact and agents
of the Corporation (or any person substituted or resubstituted therefor) to
execute or file for or on behalf of the Corporation any Filing with respect to
(i) the Common Stock, par value $.01 per share, of The Equitable Companies
Incorporated, a Delaware corporation, or (ii) the Units Representing Assignments
of Beneficial Ownership of Limited Partnership Interests in Alliance Capital
Management L.P., a Delaware limited partnership. The Corporation hereby grants
to such attorneys-in-fact and agents of the Corporation full power and authority
to do and perform each and every act and thing requisite and necessary to be
done, as fully to all intents and purposes as the Corporation might or could,
and hereby ratifies and confirms all that said attorneys-in-fact and agents of
the Corporation or their substitute or substitutes may lawfully do or cause to
be done by virtue hereof.
The undersigned acknowledges that the foregoing attorneys-in-fact and
agents of the Corporation, in serving in such capacity at the request of the
undersigned, are not assuming any of the undersigned's responsibilities to
comply with Section 13(d) of the Securities Exchange Act of 1934.
The powers hereby conferred upon the said attorneys-in-fact and agents
shall continue in force until notice of the revocation of this Power of Attorney
has been received by the said attorneys-in-fact and agents of the Corporation.
IN WITNESS WHEREOF, the undersigned has hereunto subscribed this Power
of Attorney this 24 day of June, 1996.
AXA
By: /s/ Claude Bebear
-----------------
Name: Claude Bebear
Title: Chairman and Chief Executive Officer
46
<PAGE>
Power of Attorney
Finaxa, a societe anonyme organized under the laws of the Republic of
France (the "Corporation"), hereby constitutes and appoints each of Richard V.
Silver, Henry Q. Conley, Alvin H. Fenichel and Allen J. Zabusky, acting singly,
as the true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for the Corporation and in the name, place and
stead of the Corporation, in any and all capacities, to execute for and on
behalf of the Corporation, all Schedules 13D and Schedules 13G as required by
the Securities Exchange Act of 1934, as amended, and any and all amendments
thereto, and to file the same, with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission, the issuer
and relevant stock exchanges (individually, each a "Filing"); provided, however,
that unless specifically instructed in writing by the Corporation, this Power of
Attorney does not authorize any of the above-listed attorneys-in-fact and agents
of the Corporation (or any person substituted or resubstituted therefor) to
execute or file for or on behalf of the Corporation any Filing with respect to
(i) the Common Stock, par value $.01 per share, of The Equitable Companies
Incorporated, a Delaware corporation, or (ii) the Units Representing Assignments
of Beneficial Ownership of Limited Partnership Interests in Alliance Capital
Management L.P., a Delaware limited partnership. The Corporation hereby grants
to such attorneys-in-fact and agents of the Corporation full power and authority
to do and perform each and every act and thing requisite and necessary to be
done, as fully to all intents and purposes as the Corporation might or could,
and hereby ratifies and confirms all that said attorneys-in-fact and agents of
the Corporation or their substitute or substitutes may lawfully do or cause to
be done by virtue hereof.
The undersigned acknowledges that the foregoing attorneys-in-fact and
agents of the Corporation, in serving in such capacity at the request of the
undersigned, are not assuming any of the undersigned's responsibilities to
comply with Section 13(d) of the Securities Exchange Act of 1934.
The powers hereby conferred upon the said attorneys-in-fact and agents
shall continue in force until notice of the revocation of this Power of Attorney
has been received by the said attorneys-in-fact and agents of the Corporation.
IN WITNESS WHEREOF, the undersigned has hereunto subscribed this Power
of Attorney this 24 day of June, 1996.
FINAXA
By: /s/ Claude Bebear
-----------------
Name: Claude Bebear
Title: Chairman and Chief Executive Officer
47
<PAGE>
Power of Attorney
AXA Assurances I.A.R.D. Mutuelle, a mutual insurance company organized
under the laws of the Republic of France (the "Corporation"), hereby constitutes
and appoints each of Richard V. Silver, Henry Q. Conley, Alvin H. Fenichel and
Allen J. Zabusky, acting singly, as the true and lawful attorney-in-fact and
agent, with full power of substitution and resubstitution, for the Corporation
and in the name, place and stead of the Corporation, in any and all capacities,
to execute for and on behalf of the Corporation, all Schedules 13D and Schedules
13G as required by the Securities Exchange Act of 1934, as amended, and any and
all amendments thereto, and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, the issuer and relevant stock exchanges (individually, each a
"Filing"); provided, however, that unless specifically instructed in writing by
the Corporation, this Power of Attorney does not authorize any of the
above-listed attorneys-in-fact and agents of the Corporation (or any person
substituted or resubstituted therefor) to execute or file for or on behalf of
the Corporation any Filing with respect to (i) the Common Stock, par value $.01
per share, of the Equitable Companies Incorporated, a Delaware corporation, or
(ii) the Units Representing Assignments of Beneficial Ownership of Limited
Partnership Interests in Alliance Capital Management L.P., a Delaware limited
partnership. The Corporation hereby grants to such attorneys-in-fact and agents
of the Corporation full power and authority to do and perform each and every act
and thing requisite and necessary to be done, as fully to all intents and
purposes as the Corporation might or could, and hereby ratifies and confirms all
that said attorneys-in-fact and agents of the Corporation or their substitute or
substitutes may lawfully do or cause to be done by virtue hereof.
The undersigned acknowledges that the foregoing attorneys-in-fact and
agents of the Corporation, in serving in such capacity at the request of the
undersigned, are not assuming any of the undersigned's responsibilities to
comply with Section 13(d) of the Securities Exchange Act of 1934.
The powers hereby conferred upon the said attorneys-in-fact and agents
shall continue in force until notice of the revocation of this Power of Attorney
has been received by the said attorneys-in-fact and agents of the Corporation.
IN WITNESS WHEREOF, the undersigned has hereunto subscribed this Power
of Attorney this 24 day of June, 1996.
AXA ASSURANCES I.A.R.D. MUTUELLE
By: /s/ Claude Tendil
-----------------
Name: Claude Tendil
Title: Chief Executive Officer
48
<PAGE>
Power of Attorney
AXA Assurances Vie Mutuelle, a mutual insurance company organized under
the laws of the Republic of France (the "Corporation"), hereby constitutes and
appoints each of Richard V. Silver, Henry Q. Conley, Alvin H. Fenichel and Allen
J. Zabusky, acting singly, as the true and lawful attorney-in-fact and agent,
with full power of substitution and resubstitution, for the Corporation and in
the name, place and stead of the Corporation, in any and all capacities, to
execute for and on behalf of the Corporation, all Schedules 13D and Schedules
13G as required by the Securities Exchange Act of 1934, as amended, and any and
all amendments thereto, and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, the issuer and relevant stock exchanges (individually, each a
"Filing"); provided, however, that unless specifically instructed in writing by
the Corporation, this Power of Attorney does not authorize any of the
above-listed attorneys-in-fact and agents of the Corporation (or any person
substituted or resubstituted therefor) to execute or file for or on behalf of
the Corporation any Filing with respect to (i) the Common Stock, par value $.01
per share, of the Equitable Companies Incorporated, a Delaware corporation, or
(ii) the Units Representing Assignments of Beneficial Ownership of Limited
Partnership Interests in Alliance Capital Management L.P., a Delaware limited
partnership. The Corporation hereby grants to such attorneys-in-fact and agents
of the Corporation full power and authority to do and perform each and every act
and thing requisite and necessary to be done, as fully to all intents and
purposes as the Corporation might or could, and hereby ratifies and confirms all
that said attorneys-in-fact and agents of the Corporation or their substitute or
substitutes may lawfully do or cause to be done by virtue hereof.
The undersigned acknowledges that the foregoing attorneys-in-fact and
agents of the Corporation, in serving in such capacity at the request of the
undersigned, are not assuming any of the undersigned's responsibilities to
comply with Section 13(d) of the Securities Exchange Act of 1934.
The powers hereby conferred upon the said attorneys-in-fact and agents
shall continue in force until notice of the revocation of this Power of Attorney
has been received by the said attorneys-in-fact and agents of the Corporation.
IN WITNESS WHEREOF, the undersigned has hereunto subscribed this Power
of Attorney this 24 day of June, 1996.
AXA ASSURANCES VIE MUTUELLE
By: /s/ Claude Tendil
-----------------
Name: Claude Tendil
Title: Chief Executive Officer
49
<PAGE>
Power of Attorney
Uni Europe Assurance Mutuelle, a mutual insurance company organized
under the laws of the Republic of France (the "Corporation"), hereby constitutes
and appoints each of Richard V. Silver, Henry Q. Conley, Alvin H. Fenichel and
Allen J. Zabusky, acting singly, as the true and lawful attorney-in-fact and
agent, with full power of substitution and resubstitution, for the Corporation
and in the name, place and stead of the Corporation, in any and all capacities,
to execute for and on behalf of the Corporation, all Schedules 13D and Schedules
13G as required by the Securities Exchange Act of 1934, as amended, and any and
all amendments thereto, and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, the issuer and relevant stock exchanges (individually, each a
"Filing"); provided, however, that unless specifically instructed in writing by
the Corporation, this Power of Attorney does not authorize any of the
above-listed attorneys-in-fact and agents of the Corporation (or any person
substituted or resubstituted therefor) to execute or file for or on behalf of
the Corporation any Filing with respect to (i) the Common Stock, par value $.01
per share, of the Equitable Companies Incorporated, a Delaware corporation, or
(ii) the Units Representing Assignments of Beneficial Ownership of Limited
Partnership Interests in Alliance Capital Management L.P., a Delaware limited
partnership. The Corporation hereby grants to such attorneys-in-fact and agents
of the Corporation full power and authority to do and perform each and every act
and thing requisite and necessary to be done, as fully to all intents and
purposes as the Corporation might or could, and hereby ratifies and confirms all
that said attorneys-in-fact and agents of the Corporation or their substitute or
substitutes may lawfully do or cause to be done by virtue hereof.
The undersigned acknowledges that the foregoing attorneys-in-fact and
agents of the Corporation, in serving in such capacity at the request of the
undersigned, are not assuming any of the undersigned's responsibilities to
comply with Section 13(d) of the Securities Exchange Act of 1934.
The powers hereby conferred upon the said attorneys-in-fact and agents
shall continue in force until notice of the revocation of this Power of Attorney
has been received by the said attorneys-in-fact and agents of the Corporation.
IN WITNESS WHEREOF, the undersigned has hereunto subscribed this Power
of Attorney this 24 day of June, 1996.
UNI EUROPE ASSURANCE MUTUELLE
By: /s/ Claude Tendil
-----------------
Name: Claude Tendil
Title: Chief Executive Officer
50
<PAGE>
Power of Attorney
Alpha Assurances Vie Mutuelle, a mutual insurance company organized
under the laws of the Republic of France (the "Corporation"), hereby constitutes
and appoints each of Richard V. Silver, Henry Q. Conley, Alvin H. Fenichel and
Allen J. Zabusky, acting singly, as the true and lawful attorney-in-fact and
agent, with full power of substitution and resubstitution, for the Corporation
and in the name, place and stead of the Corporation, in any and all capacities,
to execute for and on behalf of the Corporation, all Schedules 13D and Schedules
13G as required by the Securities Exchange Act of 1934, as amended, and any and
all amendments thereto, and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, the issuer and relevant stock exchanges (individually, each a
"Filing"); provided, however, that unless specifically instructed in writing by
the Corporation, this Power of Attorney does not authorize any of the
above-listed attorneys-in-fact and agents of the Corporation (or any person
substituted or resubstituted therefor) to execute or file for or on behalf of
the Corporation any Filing with respect to (i) the Common Stock, par value $.01
per share, of The Equitable Companies Incorporated, a Delaware corporation, or
(ii) the Units Representing Assignments of Beneficial Ownership of Limited
Partnership Interests in Alliance Capital Management L.P., a Delaware limited
partnership. The Corporation hereby grants to such attorneys-in-fact and agents
of the Corporation full power and authority to do and perform each and every act
and thing requisite and necessary to be done, as fully to all intents and
purposes as the Corporation might or could, and hereby ratifies and confirms all
that said attorneys-in-fact and agents of the Corporation or their substitute or
substitutes may lawfully do or cause to be done by virtue hereof.
The undersigned acknowledges that the foregoing attorneys-in-fact and
agents of the Corporation, in serving in such capacity at the request of the
undersigned, are not assuming any of the undersigned's responsibilities to
comply with Section 13(d) of the Securities Exchange Act of 1934.
The powers hereby conferred upon the said attorneys-in-fact and agents
shall continue in force until notice of the revocation of this Power of Attorney
has been received by the said attorneys-in-fact and agents of the Corporation.
IN WITNESS WHEREOF, the undersigned has hereunto subscribed this Power
of Attorney this 24 day of June, 1996.
ALPHA ASSURANCES VIE MUTUELLE
By: /s/ Claude Tendil
-----------------
Name: Claude Tendil
Title: Chief Executive Officer
51
<PAGE>
Power of Attorney
Patrice Garnier, as a Voting Trustee (the "Trustee"), pursuant to a
Voting Trust Agreement dated as of May 12, 1992, by and among AXA, a societe
anonyme organized under the laws of Republic of France, and the Voting Trustees
identified therein, hereby constitutes and appoints each of Richard V. Silver,
Henry Q. Conley, Alvin H. Fenichel and Allen J. Zabusky, acting singly, as the
true and lawful attorney-in-fact and agent, with full power of substitution and
resubstitution, for the Trustee and in the name, place and stead of the Trustee,
in any and all capacities, to execute for and on behalf of the Trustee, all
Schedules 13D and Schedules 13G as required by the Securities Exchange Act of
1934, as amended, and any and all amendments thereto, and to file the same, with
all exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, the issuer and relevant stock exchanges
(individually, each a "Filing"); provided, however, that unless specifically
instructed in writing by the Trustee, this Power of Attorney does not authorize
any of the above-listed attorneys-in-fact and agents of the Trustee (or any
person substituted or resubstituted therefor) to execute or file for or on
behalf of the Trustee any Filing with respect to (i) the Common Stock, par value
$.01 per share, of The Equitable Companies Incorporated, a Delaware corporation
or (ii) the Units Representing Assignments of Beneficial Ownership of Limited
Partnership Interests in Alliance Capital Management L.P., a Delaware limited
partnership. The Trustee hereby grants to such attorneys-in-fact and agents of
the Trustee full power and authority to do and perform each and every act and
thing requisite and necessary to be done, as fully to all intents and purposes
as the Trustee might or could, and hereby ratifies and confirms all that said
attorneys-in- fact and agents of the Trustee or their substitute or substitutes
may lawfully do or cause to be done by virtue hereof.
The undersigned acknowledges that the foregoing attorneys-in-fact and
agents of the Trustee, in serving in such capacity at the request of the
undersigned, are not assuming any of the undersigned's responsibilities to
comply with Section 13 (d) of the Securities Exchange Act of 1934.
The powers hereby conferred upon the said attorneys-in-fact and agents
shall continue in force until notice of the revocation of this Power of Attorney
has been received by the said attorneys-in-fact and agents of the Trustee.
IN WITNESS WHEREOF, the undersigned has hereunto subscribed this Power
of Attorney this 24 day of June, 1996.
By: /s/ Patrice Garnier
-------------------
Name: Patrice Garnier
Title: Voting Trustee
52
<PAGE>
Power of Attorney
Claude Bebear, as a Voting Trustee (the "Trustee"), pursuant to a
Voting Trust Agreement dated as of May 12, 1992, by and among AXA, a societe
anonyme organized under the laws of the Republic of France, and the Voting
Trustees identified therein, hereby constitutes and appoints each of Richard V.
Silver, Henry Q. Conley, Alvin H. Fenichel and Allen J. Zabusky, acting singly,
as the true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for the Trustee and in the name, place and
stead of the Trustee, in any and all capacities, to execute for and on behalf of
the Trustee, all Schedules 13D and Schedules 13G as required by the Securities
Exchange Act of 1934, as amended, and any and all amendments thereto, and to
file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, the issuer and relevant
stock exchanges (individually, each a "Filing"); provided, however, that unless
specifically instructed in writing by the Trustee, this Power of Attorney does
not authorize any of the above-listed attorneys-in-fact and agents of the
Trustee (or any person substituted or resubstituted therefor) to execute or file
for or on behalf of the Trustee any Filing with respect to (i) the Common Stock,
par value $.01 per share, of The Equitable Companies Incorporated, a Delaware
corporation, or (ii) the Units Representing Assignments of Beneficial Ownership
of Limited Partnership Interests in Alliance Capital Management L.P., a Delaware
limited partnership. The Trustee hereby grants to such attorneys-in-fact and
agents of the Trustee full power and authority to do and perform each and every
act and thing requisite and necessary to be done, as fully to all intents and
purposes as the Trustee might or could, and hereby ratifies and confirms all
that said attorneys-in- fact and agents of the Trustee or their substitute or
substitutes may lawfully do or cause to be done by virtue hereof.
The undersigned acknowledges that the foregoing attorneys-in-fact and
agents of the Trustee, in serving in such capacity at the request of the
undersigned, are not assuming any of the undersigned's responsibilities to
comply with Section 13(d) of the Securities Exchange Act of 1934.
The powers hereby conferred upon the said attorneys-in-fact and agents
shall continue in force until notice of the revocation of this Power of Attorney
has been received by the said attorneys-in-fact and agents of the Trustee.
IN WITNESS WHEREOF, the undersigned has hereunto subscribed this Power
of Attorney this 24 day of June, 1996.
By: /s/ Claude Bebear
-----------------
Name: Claude Bebear
Title: Voting Trustee
53
<PAGE>
Power of Attorney
Henri de Clermont-Tonnerre, as Voting Trustee (the "Trustee"), pursuant
to a Voting Trust Agreement dated as of May 12, 1992, by and among AXA, a
societe anonyme organized under the laws of the Republic of France and the
Voting Trustees identified herein, hereby constitutes and appoints each of
Richard V. Silver, Henry Q. Conley, Alvin H. Fenichel and Allen J. Zabusky,
acting singly, as the true and lawful attorney-in-fact and agent, with full
power of substitution and resubstitution, for the Trustee and in the name, place
and stead of the Trustee, in any and all capacities, to execute for and on
behalf of the Trustee, all Schedules 13D and Schedules 13G as required by the
Securities Exchange Act of 1934, as amended, and any and all amendments thereto,
and to file the same, with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission, the issuer
and relevant stock exchanges (individually, each a "Filing"); provided, however,
that unless specifically instructed in writing by the Trustee, this Power of
Attorney does not authorize any of the above-listed attorneys-in-fact and agents
of the Trustee (or any person substituted or resubstituted therefor) to execute
or file for or on behalf of the Trustee any Filing with respect to (i) the
Common Stock, par value $.01 per share, of The Equitable Companies Incorporated,
a Delaware corporation, or (ii) the Units Representing Assignments of Beneficial
Ownership of Limited Partnership Interests in Alliance Capital Management L.P.,
a Delaware limited partnership. The Trustee hereby grants to such
attorneys-in-fact and agents of the Trustee full power and authority to do and
perform each and every act and thing requisite and necessary to be done, as
fully to all intents and purposes as the Trustee might or could, and hereby
ratifies and confirms all that said attorneys-in- fact and agents of the Trustee
or their substitute or substitutes may lawfully do or cause to be done by virtue
hereof.
The undersigned acknowledges that the foregoing attorneys-in-fact and
agents of the Trustee, in serving in such capacity at the request of the
undersigned, are not assuming any of the undersigned's responsibilities to
comply with Section 13(d) of the Securities Exchange Act of 1934.
The powers hereby conferred upon the said attorneys-in-fact and agents
shall continue in force until notice of the revocation of this Power of Attorney
has been received by the said attorneys-in-fact and agents of the Trustee.
IN WITNESS WHEREOF, the undersigned has hereunto subscribed this Power
of Attorney this 24 day of June, 1996.
By: /s/ Henri de Clermont-Tonnerre
------------------------------
Name: Henri de Clermont-Tonnerre
Title: Voting Trustee
54
<PAGE>
EXHIBIT 3
AGREEMENT AND PLAN OF MERGER
dated as of
October 1, 2000
among
IBP, INC.
RAWHIDE HOLDINGS CORPORATION
and
RAWHIDE ACQUISITION CORPORATION
<PAGE>
TABLE OF CONTENTS 1
----------------------
PAGE
ARTICLE 1
DEFINITIONS
SECTION 1.01. Definitions ....................................................2
ARTICLE 2
THE MERGER
SECTION 2.01. The Merger......................................................4
SECTION 2.02. Conversion of Shares............................................5
SECTION 2.03. Surrender and Payment...........................................5
SECTION 2.04. Dissenting Shares...............................................7
SECTION 2.05. Stock Options...................................................8
SECTION 2.06. Withholding Rights..............................................8
ARTICLE 3
THE SURVIVING CORPORATION
SECTION 3.01. Certificate of Incorporation....................................9
SECTION 3.02. Bylaws..........................................................9
SECTION 3.03. Directors and Officers..........................................9
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
SECTION 4.01. Corporate Existence and Power...................................9
SECTION 4.02. Corporate Authorization........................................10
SECTION 4.03. Governmental Authorization.....................................10
SECTION 4.04. Non-contravention..............................................10
SECTION 4.05. Capitalization.................................................11
SECTION 4.06. Subsidiaries...................................................11
SECTION 4.07. SEC Filings ...................................................12
SECTION 4.08. Financial Statements...........................................12
SECTION 4.09. Disclosure Documents...........................................13
SECTION 4.10. Absence of Certain Changes.....................................14
--------
1 The Table of Contents is not a part of this Agreement.
<PAGE>
PAGE
SECTION 4.11. No Undisclosed Material Liabilities............................15
SECTION 4.12. Litigation.....................................................16
SECTION 4.13. Taxes..........................................................16
SECTION 4.14. ERISA..........................................................18
SECTION 4.15. Labor Matters..................................................20
SECTION 4.16. Compliance with Laws...........................................21
SECTION 4.17. Licenses and Permits...........................................21
SECTION 4.18. Intellectual Property..........................................22
SECTION 4.19. Environmental Matters..........................................22
SECTION 4.20. Finders' Fees..................................................24
SECTION 4.21. Inapplicability of Certain Restrictions........................24
SECTION 4.22. Rights Plan ...................................................24
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF PARENT
SECTION 5.01. Corporate Existence and Power..................................25
SECTION 5.02. Corporate Authorization........................................25
SECTION 5.03. Governmental Authorization.....................................25
SECTION 5.04. Non-contravention..............................................25
SECTION 5.05. Disclosure Documents...........................................26
SECTION 5.06. Finders' Fees..................................................26
SECTION 5.07. Financing......................................................26
SECTION 5.08. Ownership of Shares............................................27
SECTION 5.09. Ownership of Parent Stock......................................27
ARTICLE 6
COVENANTS OF THE COMPANY
SECTION 6.01. Conduct of the Company.........................................28
SECTION 6.02. Stockholder Meeting; Proxy Material............................30
SECTION 6.03. Access to Information..........................................31
SECTION 6.04. Other Offers...................................................31
SECTION 6.05. Notices of Certain Events......................................34
SECTION 6.06. Resignation of Directors.......................................34
ARTICLE 7
COVENANTS OF PARENT
SECTION 7.01. SEC Filings....................................................34
SECTION 7.02. Confidentiality................................................35
SECTION 7.03. Voting of Shares...............................................35
2
<PAGE>
PAGE
SECTION 7.04. Director and Officer Liability.................................35
SECTION 7.05. Employee Matters...............................................35
SECTION 7.06. Financing......................................................35
SECTION 7.07. Other Arrangements.............................................36
SECTION 7.08. Obligations of Merger Co.......................................36
SECTION 7.09. Amendments to the Voting Agreement.............................36
SECTION 7.10. Acquisitions of Shares.........................................36
SECTION 7.11. Notices of Certain Events......................................36
ARTICLE 8
COVENANTS OF PARENT AND THE COMPANY
SECTION 8.01. Best Efforts...................................................37
SECTION 8.02. Certain Filings................................................37
SECTION 8.03. Public Announcements...........................................38
SECTION 8.04. Further Assurances.............................................38
ARTICLE 9
CONDITIONS TO THE MERGER
SECTION 9.01. Conditions to the Obligations of Each Party....................39
SECTION 9.02. Conditions to the Obligations of Parent and
Merger Co....................................................39
SECTION 9.03. Condition to the Obligation of the Company.....................41
ARTICLE 10
TERMINATION
SECTION 10.01. Termination...................................................42
SECTION 10.02. Effect of Termination.........................................43
ARTICLE 11
MISCELLANEOUS
SECTION 11.01. Notices.......................................................43
SECTION 11.02. Survival of Representations and Warranties....................45
SECTION 11.03. Amendments; No Waivers........................................45
SECTION 11.04. Expenses......................................................45
SECTION 11.05. Successors and Assigns; Benefit...............................45
SECTION 11.06. Governing Law.................................................46
SECTION 11.07. Counterparts; Effectiveness...................................46
3
<PAGE>
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER dated as of October 1, 2000 among IBP,
inc., a Delaware corporation (the "Company"), Rawhide Holdings Corporation, a
Delaware corporation ("Parent"), and Rawhide Acquisition Corporation, a Delaware
corporation and a wholly-owned subsidiary of Parent ("Merger Co.").
W I T N E S S E T H:
WHEREAS, as of the date of execution of this Agreement, all of the
outstanding capital stock of Parent is owned, in the aggregate, by DLJ Merchant
Banking Partners III, L.P. ("DLJMB");
WHEREAS, Parent and Merger Co. are unwilling to enter into this
Agreement unless, contemporaneously with the execution and delivery of this
Agreement, certain beneficial and record stockholders of the Company (the
"Stockholders") enter into a Voting Agreement and Irrevocable Proxy (the "Voting
Agreement") providing for certain actions relating to certain of the shares of
common stock of the Company owned by them; and
WHEREAS, Parent and the Company desire to make certain representations,
warranties, covenants and agreements in connection with the Merger (as defined
in Section 2.01) and also to prescribe certain conditions to the Merger;
NOW, THEREFORE, in consideration of the foregoing and the
representations, warranties, covenants and agreements herein contained, the
parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
SECTION 1.01. Definitions. Each of the following terms is defined in
the Section set forth opposite such term:
Term Section
---- -------
Acquisition Proposal............................... 6.04
Balance Sheet...................................... 4.08
Balance Sheet Date................................. 4.08
Code............................................... 4.14
1
<PAGE>
Term Section
---- -------
Common Stock....................................... 4.05
Company Disclosure Documents....................... 4.09
Company Proxy Statement............................ 4.09
Company Stockholder Meeting........................ 6.02
Company Securities................................. 4.05
Company 10-K....................................... 4.07
Company 10-Qs...................................... 4.07
Confidentiality Agreement.......................... 7.02
Delaware Law....................................... 2.01
Dissenting Shares.................................. 2.04
DLJ Bridge Fund.................................... 5.07
DLJ Senior Debt Fund............................... 5.07
DLJMB.............................................. recitals
DLJSC.............................................. 5.06
Effective Time..................................... 2.01
Exchange Act....................................... 4.03
Exchange Agent..................................... 2.03
Employee Plans..................................... 4.14
Environmental Laws................................. 4.19
Environmental Permits.............................. 4.19
ERISA.............................................. 4.14
ERISA Affiliate.................................... 4.14
Exchange Agent..................................... 2.03
Financing.......................................... 5.07
Financing Agreements............................... 5.07
Financing Entities................................. 5.07
Hazardous Substances............................... 4.19
HSR Act ........................................... 4.03
Intellectual Property Right........................ 4.18
International Plan................................. 4.14
Lien............................................... 4.04
Material Adverse Effect............................ 4.01
Merger ............................................ 2.01
Merger Co. Common Stock............................ 2.02
Merger Consideration............................... 2.02
Multiemployer Plan................................. 4.14
Option............................................. 2.05
Parent Disclosure Documents........................ 7.01
Payment Event...................................... 6.04
Permits............................................ 4.17
Person............................................. 2.03 and 6.04
2
<PAGE>
Term Section
---- -------
Pre-Closing Tax Period............................. 4.13
Preferred Stock.................................... 4.05
Representatives.................................... 6.03
Required Amounts................................... 5.07
Returns............................................ 4.13
SEC................................................ 4.07
Share.............................................. 2.01
Special Committee.................................. 2.01
Stockholders....................................... recitals
Subsidiary......................................... 4.06
Subsidiary Securities.............................. 4.06
Superior Proposal.................................. 6.04
Surviving Corporation.............................. 2.01
Surviving Corporation Common Stock................. 2.02
Tax Asset.......................................... 4.13
Termination Fee.................................... 6.04
Title IV Plan...................................... 4.14
Transaction Statement.............................. 7.01
Voting Agreement................................... recitals
ARTICLE 2
THE MERGER
SECTION 2.01. The Merger. (a) At the Effective Time (as defined below),
Merger Co. shall be merged (the "Merger") with and into the Company in
accordance with Delaware Law (as defined below), whereupon the separate
existence of Merger Co. shall cease, and the Company shall be the surviving
corporation (the "Surviving Corporation").
(b) As soon as practicable after satisfaction or, to the extent
permitted hereunder, waiver of all conditions to the Merger, the Company and
Merger Co. will file a certificate of merger with the Secretary of State of the
State of Delaware and make all other filings or recordings required by Delaware
Law in connection with the Merger. The Merger shall become effective at such
time as the certificate of merger is duly filed with the Secretary of State of
the State of Delaware or at such later date or time as is specified in the
certificate of merger (the "Effective Time").
3
<PAGE>
(c) From and after the Effective Time, the Surviving Corporation shall
possess all the property, rights, privileges, immunities, powers and franchises
and be subject to all of the debts, liabilities, obligations, restrictions,
disabilities and duties of the Company and Merger Co., all as provided under
Delaware Law.
(d) The Company hereby represents that its Board of Directors, at a
meeting duly called and held and acting on the unanimous recommendation of a
special committee of the Board of Directors of the Company comprised of all of
the members of the Board of Directors other than Messrs. Bond, Chalsty, Leman
and Peterson (the "Special Committee"), has with Messrs. Bond, Leman and
Peterson abstaining (i) unanimously determined that this Agreement and the
transactions contemplated hereby, including the Merger, are fair to and in the
best interest of the Company's stockholders, (ii) unanimously approved this
Agreement and the transactions contemplated hereby, including the Merger and the
Voting Agreement, which approval satisfies in full the requirements of Section
203 of the General Corporation Law of the State of Delaware (the "Delaware Law")
with respect to the transactions contemplated hereby, and (iii) unanimously
resolved to recommend approval and adoption of this Agreement and the Merger to
its stockholders. The Company further represents that J.P. Morgan Securities
Inc. has delivered to the Company's Board of Directors its written opinion that
the consideration to be paid in the Merger is fair to the holders of shares of
common stock of the Company, par value $0.05 per share (each, a "Share"), from a
financial point of view. The Company has been advised that all of its directors
and executive officers intend to vote all of their Shares in favor of approval
and adoption of this Agreement and the Merger.
SECTION 2.02. Conversion of Shares. At the Effective Time:
(a) each Share held by the Company or any Subsidiary as treasury stock
or owned by Parent or any subsidiary of Parent immediately prior to the
Effective Time shall be canceled, and no payment shall be made with respect
thereto;
(b) each share of common stock, par value $0.05 per share, of Merger
Co. ("Merger Co. Common Stock") outstanding immediately prior to the Effective
Time shall be converted into and become one share of common stock, par value
$0.05 per share ("Surviving Corporation Common Stock"), of the Surviving
Corporation with the same rights, powers and privileges as the shares so
converted; and
(c) each Share outstanding immediately prior to the Effective Time
shall, except as otherwise provided in Section 2.02(a) or as provided in Section
2.04 with respect to Shares as to which appraisal rights have been exercised, be
4
<PAGE>
converted into the right to receive in cash from Merger Co. an amount equal to
$22.25 (the "Merger Consideration").
SECTION 2.03. Surrender and Payment. (a) Prior to the mailing of the
Company Proxy Statement (as defined in Section 4.09), Parent shall appoint an
agent (the "Exchange Agent") for the purpose of exchanging certificates
representing Shares for the Merger Consideration. Parent shall cause Merger Co.
to make available to the Exchange Agent, as soon as reasonably practicable as of
or after the Effective Time, the Merger Consideration to be paid in respect of
the Shares. For purposes of determining the Merger Consideration to be made
available, Parent shall assume that no holder of Shares will perfect appraisal
rights with respect to such Shares. Promptly after the Effective Time, the
Surviving Corporation will send, or will cause the Exchange Agent to send, to
each holder of Shares at the Effective Time a letter of transmittal for use in
such exchange (which shall specify that the delivery shall be effected, and risk
of loss and title shall pass, only upon proper delivery of the certificates
representing Shares to the Exchange Agent).
(b) Each holder of Shares that have been converted into a right to
receive the Merger Consideration, upon surrender to the Exchange Agent of a
certificate or certificates representing such Shares, together with a properly
completed letter of transmittal covering such Shares, will be entitled to
receive the Merger Consideration payable in respect of such Shares. Until so
surrendered, each such certificate shall, after the Effective Time, represent
for all purposes, only the right to receive such Merger Consideration. No
interest will be paid or will accrue on the Merger Consideration.
(c) If any portion of the Merger Consideration is to be paid to a
Person other than the registered holder of the Shares represented by the
certificate or certificates surrendered in exchange therefor, it shall be a
condition to such payment that the certificate or certificates so surrendered
shall be properly endorsed or otherwise be in proper form for transfer and that
the Person requesting such payment shall pay to the Exchange Agent any transfer
or other taxes required as a result of such payment to a Person other than the
registered holder of such Shares or establish to the satisfaction of the
Exchange Agent that such tax has been paid or is not payable. For purposes of
this Agreement, "Person" means an individual, a corporation, a limited liability
company, a partnership, an association, a trust or any other entity or
organization, including a government or political subdivision or any agency or
instrumentality thereof.
(d) After the Effective Time, there shall be no further registration of
transfers of Shares. If, after the Effective Time, certificates representing
Shares
5
<PAGE>
are presented to the Surviving Corporation, they shall be canceled and exchanged
for the consideration provided for, and in accordance with the procedures set
forth, in this Article 2.
(e) Any portion of the Merger Consideration made available to the
Exchange Agent pursuant to Section 2.03(a) that remains unclaimed by the holders
of Shares six months after the Effective Time shall be returned to the Surviving
Corporation, upon demand, and any such holder who has not exchanged his Shares
for the Merger Consideration in accordance with this Section prior to that time
shall thereafter look only to the Surviving Corporation for payment of the
Merger Consideration in respect of his Shares. Notwithstanding the foregoing,
the Surviving Corporation shall not be liable to any holder of Shares for any
amount paid to a public official pursuant to applicable abandoned property laws.
Any amounts remaining unclaimed by holders of Shares two years after the
Effective Time (or such earlier date immediately prior to such time as such
amounts would otherwise escheat to or become property of any governmental
entity) shall, to the extent permitted by applicable law, become the property of
the Surviving Corporation free and clear of any claims or interest of any Person
previously entitled thereto.
(f) Any portion of the Merger Consideration made available to the
Exchange Agent pursuant to Section 2.03(a) to pay for Shares for which appraisal
rights have been perfected shall be returned to the Surviving Corporation, upon
demand.
SECTION 2.04. Dissenting Shares. Notwithstanding Section 2.02, Shares
which are issued and outstanding immediately prior to the Effective Time and
which are held by a holder who has not voted such Shares in favor of the Merger,
who shall have delivered a written demand for appraisal of such Shares in the
manner provided by the Delaware Law and who, as of the Effective Time, shall not
have effectively withdrawn or lost such right to appraisal ("Dissenting Shares")
shall not be converted into a right to receive the Merger Consideration. The
holders thereof shall be entitled only to such rights as are granted by Section
262 of the Delaware Law. Each holder of Dissenting Shares who becomes entitled
to payment for such Shares pursuant to Section 262 of the Delaware Law shall
receive payment therefor from the Surviving Corporation in accordance with the
Delaware Law; provided, however, that (i) if any such holder of Dissenting
Shares shall have failed to establish his entitlement to appraisal rights as
provided in Section 262 of the Delaware Law, (ii) if any such holder of
Dissenting Shares shall have effectively withdrawn his demand for appraisal of
such Shares or lost his right to appraisal and payment for his Shares under
Section 262 of the Delaware Law or (iii) if neither any holder of Dissenting
Shares nor the Surviving
6
<PAGE>
Corporation shall have filed a petition demanding a determination of the value
of all Dissenting Shares within the time provided in Section 262 of the Delaware
Law, such holder shall forfeit the right to appraisal of such Shares and each
such Share shall be treated as if it had been converted, as of the Effective
Time, into a right to receive the Merger Consideration, without interest
thereon, from the Surviving Corporation as provided in Section 2.02 hereof. The
Company shall give Parent prompt notice of any demands received by the Company
for appraisal of Shares, and Parent shall have the right to participate in all
negotiations and proceedings with respect to such demands. The Company shall
not, except with the prior written consent of Parent, make any payment with
respect to, or settle or offer to settle, any such demands.
SECTION 2.05. Stock Options. (a) At or immediately prior to the
Effective Time, each outstanding employee and director stock option to purchase
Shares (each an "Option") granted under any employee stock option or
compensation plan or arrangement of the Company shall be canceled, and each
holder of any such Option, whether or not then vested or exercisable, shall be
paid, subject to any required withholding of taxes, by the Surviving Corporation
promptly after the Effective Time for each such Option an amount determined by
multiplying (i) the excess, if any, of $22.25 per Share over the applicable
exercise price of such Option by (ii) the number of Shares such holder could
have purchased (assuming full vesting of all Options) had such holder exercised
such Option in full immediately prior to the Effective Time. Notwithstanding the
foregoing, the parties hereto may agree prior to the Effective Time that all or
a portion of the Options shall not be canceled as provided in the previous
sentence, but shall be converted into options to purchase stock of the Surviving
Corporation in compliance with the requirements of Section 424 of the Code and
the regulations thereunder.
(b) Prior to the Effective Time, the Company shall take all actions
necessary (to the extent permitted) to accomplish the transactions described in
Section 2.05(a), including, to the extent necessary, making any amendments to
the terms of any such employee stock option or compensation plan or arrangement
of the Company.
SECTION 2.06. Withholding Rights. Each of the Surviving Corporation and
Parent shall be entitled to deduct and withhold from the consideration otherwise
payable to any Person pursuant to this Article 2 such amount as it is required
to deduct and withhold with respect to the making of such payment under any
provision of federal, state, local or foreign tax law. If the Surviving
Corporation or Parent, as the case may be, so withholds amounts, such amounts
shall be treated for all purposes of this Agreement as having been paid to the
7
<PAGE>
holder of the Shares in respect of which the Surviving Corporation or Parent
made such deduction and withholding.
ARTICLE 3
THE SURVIVING CORPORATION
SECTION 3.01. Certificate of Incorporation. The certificate of
incorporation of the Company in effect at the Effective Time shall be the
certificate of incorporation of the Surviving Corporation until amended in
accordance with applicable law.
SECTION 3.02. Bylaws. The bylaws of Parent in effect at the Effective
Time shall be the bylaws of the Surviving Corporation until amended in
accordance with applicable law.
SECTION 3.03. Directors and Officers. From and after the Effective
Time, until successors are duly elected or appointed and qualified in accordance
with applicable law, (a) the directors of Merger Co. at the Effective Time shall
be the directors of the Surviving Corporation, and (b) the officers of the
Company at the Effective Time shall be the officers of the Surviving
Corporation.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to Parent as of the date hereof and
as of the Effective Time that:
SECTION 4.01. Corporate Existence and Power. The Company is a
corporation duly incorporated, validly existing and in good standing under the
laws of the State of Delaware, and has all corporate powers and all material
governmental licenses, authorizations, consents and approvals required to carry
on its business as now conducted. The Company is duly qualified to do business
as a foreign corporation and is in good standing in each jurisdiction where the
character of the property owned or leased by it or the nature of its activities
makes such qualification necessary, except for those jurisdictions where the
failure to be so qualified would not, individually or in the aggregate,
reasonably be expected to have a material adverse effect on the condition
(financial or otherwise), business, assets, liabilities or results of operations
of the Company and the Subsidiaries taken as a whole ("Material Adverse
Effect"). The Company has heretofore
8
<PAGE>
delivered to Parent true and complete copies of the Company's certificate of
incorporation and bylaws as currently in effect.
SECTION 4.02. Corporate Authorization. The execution, delivery and
performance by the Company of this Agreement and the consummation by the Company
of the transactions contemplated hereby are within the Company's corporate
powers and, except for the approval by the Company's stockholders by a majority
vote in connection with the consummation of the Merger, have been duly
authorized by all necessary corporate and stockholder action under the Company's
constituent documents and the Delaware Law. This Agreement constitutes a valid
and binding agreement of the Company.
SECTION 4.03. Governmental Authorization. The execution, delivery and
performance by the Company of this Agreement and the consummation of the Merger
by the Company require no action by or in respect of, or filing with, any
governmental body, agency, official or authority other than (a) the filing of a
certificate of merger in accordance with Delaware Law; (b) compliance with any
applicable requirements of the Hart-Scott-Rodino Antitrust Improvements Act of
1976 (the "HSR Act"); and (c) compliance with any applicable requirements of the
Securities Exchange Act of 1934, as amended, and the rules and regulations
promulgated thereunder (the "Exchange Act").
SECTION 4.04. Non-contravention. Except as set forth in Schedule 4.04,
the execution, delivery and performance by the Company of this Agreement and the
consummation by the Company of the transactions contemplated hereby do not and
will not (a) contravene or conflict with the certificate of incorporation or
bylaws of the Company, (b) assuming compliance with the matters referred to in
Section 4.03, contravene or conflict with or constitute a violation of any
provision of any law, regulation, judgment, writ, injunction, order or decree of
any court or governmental authority binding upon or applicable to the Company or
any Subsidiary or any of their properties or assets, (c) constitute a default
under or give rise to a right of termination, cancellation or acceleration of
any right or obligation of the Company or any Subsidiary or to a loss of any
benefit to which the Company or any Subsidiary is entitled under any provision
of any agreement, contract or other instrument binding upon the Company or any
Subsidiary or any license, franchise, permit or other similar authorization held
by the Company or any Subsidiary, or (d) result in the creation or imposition of
any Lien on any asset of the Company or any Subsidiary, except in the case of
clauses 4.04(b), 4.04(c) and 4.04(d) for any such violation, failure to obtain
any such consent or other action, default, right, loss or Lien that would not,
individually or in the aggregate, be reasonably expected to have a Material
Adverse Effect. For purposes of this
9
<PAGE>
Agreement, "Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset.
SECTION 4.05. Capitalization. The authorized capital stock of the
Company consists of 200,000,000 shares of common stock, par value $.05 per share
(the "Common Stock") and 25,000,000 shares of preferred stock, par value $1.00
per share (the "Preferred Stock"). As of the close of business on September 28,
2000, there were outstanding 105,575,778 shares of Common Stock and no shares of
Preferred Stock. As of the close of business on September 22, 2000, there were
outstanding stock options to purchase an aggregate of 4,986,039 Shares (of which
options to purchase an aggregate of 2,541,525 Shares were exercisable). All
outstanding shares of capital stock of the Company have been duly authorized and
validly issued and are fully paid and nonassessable. Except as set forth in
Schedule 4.05 and this Section and except for changes since September 29, 2000
resulting from the exercise of employee stock options outstanding on such date,
there are outstanding (a) no shares of capital stock or other voting securities
of the Company, (b) no securities of the Company convertible into or
exchangeable for shares of capital stock or voting securities of the Company,
and (c) no options or other rights to acquire from the Company or any
Subsidiary, and no obligation of the Company or any Subsidiary to issue, any
capital stock, voting securities or securities convertible into or exchangeable
for capital stock or voting securities of the Company (the items in clauses
4.05(a), 4.05(b) and 4.05(c) being referred to collectively as the "Company
Securities"). There are no outstanding obligations of the Company or any
Subsidiary to repurchase, redeem or otherwise acquire any Company Securities.
SECTION 4.06. Subsidiaries. (a) Each Subsidiary is a corporation duly
incorporated, validly existing and in good standing under the laws of its
jurisdiction of incorporation, has all corporate powers and all material
governmental licenses, authorizations, consents and approvals required to carry
on its business as now conducted and is duly qualified to do business as a
foreign corporation and is in good standing in each jurisdiction where the
character of the property owned or leased by it or the nature of its activities
makes such qualification necessary, except for those jurisdictions where failure
to be so qualified would not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect. For purposes of this Agreement,
"Subsidiary" means any corporation or other entity of which securities or other
ownership interests having ordinary voting power to elect a majority of the
board of directors or other persons performing similar functions are directly or
indirectly owned by the Company and/or one or more Subsidiaries. All
Subsidiaries and their respective jurisdictions of incorporation are identified
in Schedule 4.06.
10
<PAGE>
(b) Except as set forth in Schedule 4.06, all of the outstanding
capital stock of, or other ownership interests in, each Subsidiary, is owned by
the Company, directly or indirectly, free and clear of any Lien and free of any
other limitation or restriction (including any restriction on the right to vote,
sell or otherwise dispose of such capital stock or other ownership interests).
There are no outstanding (i) securities of the Company or any Subsidiary
convertible into or exchangeable for shares of capital stock or other voting
securities or ownership interests in any Subsidiary, and (ii) options or other
rights to acquire from the Company or any Subsidiary, and no other obligation of
the Company or any Subsidiary to issue, any capital stock, voting securities or
other ownership interests in, or any securities convertible into or exchangeable
for any capital stock, voting securities or ownership interests in, any
Subsidiary (the items in clauses 4.06(b)(i) and 4.06(b)(ii) being referred to
collectively as the "Subsidiary Securities"). There are no outstanding
obligations of the Company or any Subsidiary to repurchase, redeem or otherwise
acquire any outstanding Subsidiary Securities.
SECTION 4.07. SEC Filings. (a) The Company has delivered to Parent (i)
the Company's annual report on Form 10-K for the year ended December 25, 1999
(the "Company 10-K"), (ii) its quarterly report on Form 10-Q for its fiscal
quarter ended June 24, 2000 and its quarterly report on Form 10-Q for its fiscal
quarter ended March 25, 2000 (together, the "Company 10-Qs") , (iii) its proxy
or information statements relating to meetings of, or actions taken without a
meeting by, the stockholders of the Company held since January 1, 1998, and (iv)
all of its other reports, statements, schedules and registration statements
filed with the Securities and Exchange Commission (the "SEC") since January 1,
1998.
(b) As of its filing date, each such report or statement filed
pursuant to the Exchange Act did not contain any untrue statement of a material
fact or omit to state any material fact necessary in order to make the
statements made therein, in the light of the circumstances under which they were
made, not misleading.
(c) Each such registration statement, as amended or supplemented, if
applicable, filed pursuant to the Securities Act of 1933, as amended, as of the
date such statement or amendment became effective did not contain any 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.
SECTION 4.08. Financial Statements. The audited consolidated financial
statements of the Company included in the Company 10-K and the unaudited
consolidated financial statements of the Company included in the Company 10-Qs
each fairly present, in conformity with generally accepted accounting principles
11
<PAGE>
applied on a consistent basis (except as may be indicated in the notes thereto),
the consolidated financial position of the Company and its consolidated
subsidiaries as of the dates thereof and their consolidated results of
operations and changes in financial position for the periods then ended (subject
to normal year-end adjustments in the case of any unaudited interim financial
statements). For purposes of this Agreement, "Balance Sheet" means the
consolidated balance sheet of the Company as of December 25, 1999 set forth in
the Company 10-K and "Balance Sheet Date" means December 25, 1999.
SECTION 4.09. Disclosure Documents. (a) Each document required to be
filed by the Company with the SEC in connection with the transactions
contemplated by this Agreement (the "Company Disclosure Documents"), including,
without limitation, the proxy or information statement of the Company containing
information required by Regulation 14A under the Exchange Act and, if
applicable, Rule 13e-3 and Schedule 13E-3 under the Exchange Act (the "Company
Proxy Statement"), if any, to be filed with the SEC in connection with the
Merger and any amendments or supplements thereto will, when filed, comply as to
form in all material respects with the applicable requirements of the Exchange
Act except that no representation or warranty is made hereby with respect to any
information furnished to the Company by Parent in writing specifically for
inclusion in the Company Disclosure Documents.
(b) At the time the Company Proxy Statement or any amendment or
supplement thereto is first mailed to stockholders of the Company, at the time
such stockholders vote on adoption of this Agreement and at the Effective Time,
the Company Proxy Statement, as supplemented or amended, if applicable, will not
contain any untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements made therein, in the light of the
circumstances under which they were made, not misleading. At the time of the
filing of any Company Disclosure Document other than the Company Proxy Statement
and at the time of any distribution thereof, such Company Disclosure Document
will not contain any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements made therein, in the
light of the circumstances under which they were made, not misleading. The
representations and warranties contained in this Section 4.09(b) will not apply
to statements or omissions included in the Company Disclosure Documents based
upon information furnished to the Company in writing by Parent specifically for
use therein.
(c) The information with respect to the Company or any Subsidiary that
the Company furnishes in writing to Parent specifically for use in the Parent
Disclosure Documents (as defined in Section 7.01) will not, at the time of the
12
<PAGE>
filing thereof, at the time of any distribution thereof and at the time of the
meeting of the Company's stockholders, contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary in order to make the statements made therein, in the light of the
circumstances under which they were made, not misleading.
SECTION 4.10. Absence of Certain Changes. Except as set forth in
Schedule 4.10 hereto, the Company 10-K or the Company 10-Qs, since the Balance
Sheet Date, the Company and the Subsidiaries have conducted their business in
the ordinary course consistent with past practice and there has not been:
(a) any event, occurrence or development of a state of circumstances
or facts which has had or reasonably could be expected to have a Material
Adverse Effect;
(b) other than regular quarterly dividends in an amount not in excess
of $.025 per share per quarter, any declaration, setting aside or payment of any
dividend or other distribution with respect to any shares of capital stock of
the Company, or any repurchase, redemption or other acquisition by the Company
or any Subsidiary of any outstanding shares of capital stock or other securities
of, or other ownership interests in, the Company or any Subsidiary;
(c) any amendment of any material term of any outstanding security of
the Company or any Subsidiary that could reasonably be expected to be materially
adverse to the Company;
(d) any incurrence, assumption or guarantee by the Company or any
Subsidiary of any indebtedness for borrowed money other than in the ordinary
course of business and in amounts and on terms consistent with past practices;
(e) any creation or assumption by the Company or any Subsidiary of any
material Lien on any material asset other than in the ordinary course of
business consistent with past practices;
(f) any making of any material loan, advance or capital contributions
to or investment in any Person other than loans, advances or capital
contributions to or investments in wholly-owned Subsidiaries made in the
ordinary course of business consistent with past practices;
(g) any damage, destruction or other casualty loss (whether or not
covered by insurance) affecting the business or assets of the Company or any
13
<PAGE>
Subsidiary which, individually or in the aggregate, has had or would reasonably
be expected to have a Material Adverse Effect;
(h) any transaction or commitment made, or any contract or agreement
entered into, by the Company or any Subsidiary relating to its assets or
business (including the acquisition or disposition of any assets) or any
relinquishment by the Company or any Subsidiary of any contract or other right,
in either case, that has had or would reasonably be expected to have a Material
Adverse Affect, other than transactions and commitments in the ordinary course
of business consistent with past practice and those contemplated by this
Agreement;
(i) any change in any method of accounting or accounting practice by
the Company or any Subsidiary, except for any such change required by reason of
a concurrent change in generally accepted accounting principles;
(j) any (i) grant of any severance or termination pay to any director
or executive officer of the Company or any Subsidiary, (ii) entering into of any
employment, deferred compensation or other similar agreement (or any amendment
to any such existing agreement) with any director or executive officer of the
Company or any Subsidiary, (iii) material increase in benefits payable under any
existing severance or termination pay policies or employment agreements or (iv)
increase in compensation, bonus or other benefits payable to directors, officers
or employees of the Company or any Subsidiary, other than in the case of clauses
(iii) and (iv) in the ordinary course of business consistent with past practice;
(k) any labor dispute, other than routine individual grievances, or
any activity or proceeding by a labor union or representative thereof to
organize any employees of the Company or any Subsidiary, which employees were
not subject to a collective bargaining agreement at the Balance Sheet Date, or
any lockouts, strikes, slowdowns, work stoppages or threats thereof by or with
respect to such employees which have had or could reasonably be expected to have
a Material Adverse Effect; or
(l) any cancellation of any licenses, sublicenses, franchises, permits
or agreements to which the Company or any Subsidiary is a party, or any
notification to the Company or any Subsidiary that any party to any such
arrangements intends to cancel or not renew such arrangements beyond its
expiration date as in effect on the date hereof, which cancellation or
notification, individually or in the aggregate, has had or reasonably could be
expected to have a Material Adverse Effect.
14
<PAGE>
SECTION 4.11. No Undisclosed Material Liabilities. Except as set forth
in Schedule 4.11, the Company 10-K or the Company 1O-Qs, there are no
liabilities of the Company or any Subsidiary of any kind whatsoever, whether
accrued, contingent, absolute, determined, determinable or otherwise, and there
is no existing condition, situation or set of circumstances which could
reasonably be expected to result in such a liability, other than:
(a) liabilities disclosed or provided for in the Balance Sheet;
(b) liabilities incurred in the ordinary course of business
consistent with past practice since the Balance Sheet Date or as otherwise
specifically contemplated by this Agreement;
(c) liabilities under this Agreement; and
(d) other liabilities which individually or in the aggregate do not
and could not reasonably be expected to have a Material Adverse Effect.
SECTION 4.12. Litigation. Except as set forth in Schedule 4.12, the
Company 10-K or the Company 10-Qs, there is no action, suit, investigation or
proceeding (or any basis therefor) pending against, or to the knowledge of the
Company threatened against or affecting, the Company or any Subsidiary or any of
their respective properties before any court or arbitrator or any governmental
body, agency or official which could reasonably be expected to have a Material
Adverse Effect, or which as of the date hereof in any manner challenges or seeks
to prevent enjoin, alter or materially delay the Merger or any of the other
transactions contemplated hereby.
SECTION 4.13. Taxes. (a) Except as set forth in Schedule 4.13 or as
would not reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect:
(i) all tax returns, statements, reports and forms (including
estimated tax returns and reports and information returns and reports)
required to be filed with any taxing authority with respect to any tax
period (or portion thereof) ending on or before the Effective Time (a
"Pre- Closing Tax Period") by or on behalf of the Company or any
Subsidiary of the Company (collectively, the "Returns"), were filed
when due (including any applicable extension periods) in accordance
with all applicable laws; as of the time of filing, the Returns were
true and complete in all material respects;
15
<PAGE>
(ii) the Company and its Subsidiaries have timely paid, or
withheld and remitted to the appropriate taxing authority, all taxes
shown as due and payable on the Returns that have been filed;
(iii) the charges, accruals and reserves for taxes with respect
to the Company and any Subsidiary for any Pre-Closing Tax Period
(including any Pre-Closing Tax Period for which no Return has yet been
filed) reflected on the Balance Sheet (excluding any provision for
deferred income taxes) are adequate to cover such taxes as of the
Balance Sheet Date;
(iv) there is no claim (including under any indemnification or
tax-sharing agreement), audit, action, suit, proceeding, or
investigation now pending or threatened in writing against or in
respect of any tax or "tax asset" of the Company or any Subsidiary.
For purposes of this Section 4.13, the term "tax asset" shall include
any net operating loss, net capital loss, investment tax credit,
foreign tax credit, charitable deduction or any other credit or tax
attribute which could be carried forward or back to reduce taxes;
(v) there are no Liens for taxes upon the assets of the Company
or its Subsidiaries except for Liens for current taxes not yet due;
and
(vi) neither the Company nor any Subsidiary is currently under
any obligation to pay any amounts of the type described in clause (ii)
or (iii) of the definition of "tax", regardless of whether such tax is
imposed on the Company or any Subsidiary.
(b) For purposes of this Section 4.13, "tax" means (i) any tax,
governmental fee or other like assessment or charge of any kind whatsoever
(including, but not limited to, withholding on amounts paid to or by any
Person), together with any interest, penalty, addition to tax or additional
amount imposed by any governmental authority responsible for the imposition of
any such tax (domestic or foreign), (ii) in the case of the Company or any
Subsidiary, liability for the payment of any amount of the type described in
clause (i) as a result of being or having been before the Effective Time a
member of an affiliated, consolidated, combined or unitary group (other than
such a group of which the Company or any of its Subsidiaries is the common
parent), or a party to any agreement or arrangement, as a result of which
liability of the Company or any Subsidiary to a taxing authority is determined
or taken into account with reference to the liability of any other Person, and
(iii) liability of the Company or any Subsidiary for the payment of any amount
as a result of being party to any tax
16
<PAGE>
sharing agreement or with respect to the payment of any amount of the type
described in (i) or (ii) as a result of any existing express obligation
(including, but not limited to, an indemnification obligation).
SECTION 4.14. ERISA. (a) Schedule 4.14 contains a correct and complete
list identifying each material "employee benefit plan", as defined in Section
3(3) of the Employee Retirement Income Security Act of 1974 ("ERISA"), each
employment, severance or similar contract, plan, arrangement or policy and each
other plan or arrangement (written or oral) providing for compensation, bonuses,
profit-sharing, stock option or other stock related rights or other forms of
incentive or deferred compensation, vacation benefits, insurance (including any
self-insured arrangements), health or medical benefits, employee assistance
program, disability or sick leave benefits, workers' compensation, supplemental
unemployment benefits, severance benefits and post-employment or retirement
benefits (including compensation, pension, health, medical or life insurance
benefits) which is maintained, administered or contributed to by the Company or
any Subsidiary and covers any employee or former employee of the Company or any
Subsidiary, or with respect to which the Company or any Subsidiary has any
liability with respect to any employee or former employee of the Company or any
Subsidiary (other than any such plan, contract, policy or arrangement that is an
International Plan, as defined below). Copies of such plans (and, if applicable,
related trust or funding agreements or insurance policies) and all amendments
thereto and written interpretations thereof have been made available to Parent
together with the most recent annual report (Form 5500 including, if applicable,
Schedule B thereto) and tax return (Form 990) prepared in connection with any
such plan or trust. Such plans are referred to collectively herein as the
"Employee Plans". For purposes of this Section 4.14, "ERISA Affiliate" of any
Person means any other Person which, together with such Person, would be treated
as a single employer under Section 414 of the Internal Revenue Code of 1986, as
amended (the "Code").
(b) Schedule 4.14 separately identifies each Employee Plan that is
subject to Title IV of ERISA (other than a Multiemployer Plan, as defined below)
(a "Title IV Plan"). Schedule 4.14 separately identifies each Employee Plan
which is a multiemployer plan, as defined in Section 3(37) of ERISA (a
"Multiemployer Plan"). Except as would not reasonably be expected to have a
Material Adverse Affect, if a "complete withdrawal" by Seller and all of its
ERISA Affiliates were to occur as of the Closing Date with respect to all
Multiemployer Plans, to the knowledge of the Company, none of the Company, any
Subsidiary or any of their ERISA Affiliates would incur any withdrawal liability
under Title IV of ERISA.
17
<PAGE>
(c) A current favorable Internal Revenue Service determination letter
is in effect with respect to each Employee Plan which is intended to be
qualified under Section 401(a) of the Code (or the relevant remedial amendment
period has not expired with respect to such Employee Plan), and the Company
knows of no circumstance giving rise to a material likelihood that such letter
could be revoked by the Internal Revenue Service. The Company has made available
to Parent copies of the most recent Internal Revenue Service determination
letters with respect to each such Plan. Each Employee Plan has been maintained
in compliance with its terms and with the requirements prescribed by any and all
statutes, orders, rules and regulations, including but not limited to ERISA and
the Code, which are applicable to such Plan, other than any non-compliance which
would not reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect. No events have occurred with respect to any Employee
Plan that would reasonably be expected to result in payment or assessment of any
material excise taxes under Sections 4972, 4975, 4976, 4977, 4979, 4980B, 4980D,
4980E or 5000 of the Code, other than any excise taxes which would not
reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect.
(d) The consummation of the transactions contemplated by this
Agreement will not (either alone or together with any termination of employment)
entitle any employee or independent contractor of the Company or any Subsidiary
to severance pay or accelerate the time of payment or vesting or trigger any
payment of funding (through a grantor trust or otherwise) of material
compensation or benefits under, materially increase the amount payable or
trigger any other material obligation pursuant to, any Employee Plan.
(e) Neither the Company nor any Subsidiary has any liability in
respect of post-retirement health, medical or life insurance benefits for
retired, former or current employees of the Company or its Subsidiaries except
for coverage under Section 4980B of the Code or coverage the full cost of which
is paid for by the retired, former or current employee.
(f) There has been no amendment to, written interpretation or
announcement (whether or not written) by the Company or any of its Affiliates
relating to, or change in employee participation or coverage under, an Employee
Plan which would increase the expense of maintaining such Employee Plan above
the level of the expense incurred in respect thereof for the fiscal year ended
December 25, 1999, except for any such increase which would not reasonably be
expected to have a Material Adverse Effect.
18
<PAGE>
(g) Neither the Company nor any Subsidiary is a party to or subject
to, or is currently negotiating in connection with entering into, any collective
bargaining agreement or other contract or understanding with a labor union or
labor organization.
(h) Except for any failures which would not be reasonably expected to
have a Material Adverse Effect, all contributions and payments accrued under
each Employee Plan, determined in accordance with prior funding and accrual
practices, as adjusted to include proportional accruals for the period ending as
of the date hereof, have been discharged and paid on or prior to the date hereof
except to the extent reflected as a liability on the Balance Sheet.
(i) Schedule 4.14(i) identifies each International Plan (as defined
below) covering 100 employees or more. The Company has furnished to Parent
copies of each International Plan. Each International Plan has been maintained
in compliance with its terms and with the requirements prescribed by any and all
applicable statutes, orders, rules and regulations (including any special
provisions relating to qualified plans where such Plan was intended to so
qualify) and has been maintained in good standing with applicable regulatory
authorities, other than any non-compliance which would not reasonably be
expected to have, individually or in the aggregate, a Material Adverse Effect.
There has been no amendment to, written interpretation of or announcement
(whether or not written) by the Company or any Subsidiary relating to, or change
in employee participation or coverage under, any International Plan that would
increase the expense of maintaining such International Plan above the level of
expense incurred in respect thereof for the most recent fiscal year ended prior
to the date hereof, except for any such increase which would not reasonably be
expected to have a Material Adverse Effect. For purposes of this Section,
"International Plan" means any employment, severance or similar contract or
arrangement (whether or not written) or any plan, policy, fund, program or
arrangement or contract providing for severance, insurance coverage (including
any self-insured arrangements), workers' compensation, disability benefits,
supplemental unemployment benefits, vacation benefits, pension or retirement
benefits or for deferred compensation, profit-sharing, bonuses, stock options,
stock appreciation rights or other forms of incentive compensation or
post-retirement insurance, compensation or benefits that (i) is intended
primarily for the benefit of employees or beneficiaries based outside the U.S.,
(ii) is entered into, maintained, administered or contributed to by the Company
or any Subsidiary and (iii) covers any employee or former employee of the
Company or any Subsidiary.
SECTION 4.15. Labor Matters. Except as set forth in Schedule 4.15 and
except for such matters as would not, individually or in the aggregate,
reasonably
19
<PAGE>
be expected to have a Material Adverse Effect, there are no (i) labor strikes,
disputes, slowdowns, representation or certification campaigns or work stoppages
or other concerted activities with respect to employees of any of the Company or
any Subsidiary pending, or to the knowledge of the Company, threatened against
or affecting the Company or any Subsidiary, (ii) grievance or arbitration
proceedings, decisions, side letters, letter agreements, letters of
understanding or settlement agreements arising out of collective bargaining
agreements to which the Company or any Subsidiary is a party, (iii) unfair labor
practice complaints pending or, to the knowledge of the Company, threatened
against the Company or any Subsidiary, or (iv) activities or proceedings of any
labor union or employee association to organize any such employees.
(b) Except to the extent set forth in Schedule 4.15 and except for such
matters as would not, individually or in the aggregate, have a Material Adverse
Effect, the Company and its Subsidiaries are in compliance with all applicable
laws respecting employment and employment practices, terms and conditions of
employment and wages and hours.
(c) Except to the extent set forth in Schedule 4.15 and except for such
matters as would not, individually or in the aggregate, reasonably be expected
to have a Material Adverse Effect, there are no pending administrative matters
with any federal, provincial, state or local agencies regarding (i) violations
or alleged violations of any federal, provincial, state or local wage and hour
law or any federal, provincial, state or local law with respect to
discrimination on the basis of race, color, creed, national origin, religion or
any other basis under such federal, provincial, state or local law, (ii) any
claimed violation of Title VII of the 1964 Civil Rights Act, as amended, (iii)
any allegation or claim arising out of Executive Order 11246 or any other
applicable order relating to governmental contractors or state contractors, or
(iv) any violation or alleged violation of the Age Discrimination and Employment
Act, as amended, or any other federal, provincial, state or local statute or
ordinance, or any other applicable laws with respect to wages, hours, employment
practices and terms and conditions of employment.
SECTION 4.16. Compliance with Laws. Except to the extent set forth in
Schedules 4.11, 4.12 and 4.19, neither the Company nor any Subsidiary is in
violation of, or has since January 1, 1999 violated, and to the knowledge of the
Company none is under investigation with respect to or has been threatened to be
charged with or given notice of any violation of, any applicable law, rule,
regulation, judgment, injunction, order or decree, except for violations that
have not had and would not reasonably be expected to have, individually or in
the aggregate, a Material Adverse Effect.
20
<PAGE>
SECTION 4.17. Licenses and Permits. Except as set forth on Schedule
4.17 and except where the failure of the following to be true would not
reasonably be expected to have, either individually or in the aggregate, a
Material Adverse Effect, (i) the Company or its Subsidiaries own, hold or
possess adequate right to use all material licenses, franchises, permits,
certificates, approvals or other similar authorizations affecting, or relating
in any way to, the assets or business of the Company and its Subsidiaries (the
"Permits") required in connection with the operation of the business of the
Company and its Subsidiaries, (ii) the Permits are valid and in full force and
effect, (iii) neither the Company nor any Subsidiary is in default under, and no
condition exists that with notice or lapse of time or both would constitute a
default under, the Permits and (iv) none of the Permits will be terminated or
impaired or become terminable, in whole or in part, as a result of the
transactions contemplated hereby.
SECTION 4.18. Intellectual Property. Except as set forth in Schedule
4.18, the Company and the Subsidiaries own or possess adequate licenses or other
rights to use all Intellectual Property Rights necessary to conduct the business
now operated by them, except where the failure to own or possess such licenses
or rights has not had and would not be reasonably likely to have a Material
Adverse Effect and, to the knowledge of the Company, the Intellectual Property
Rights of the Company and the Subsidiaries do not conflict with or infringe upon
any Intellectual Property Rights of others to the extent that, if sustained,
such conflict or infringement has had and would be reasonably likely to have a
Material Adverse Effect. For purposes of this Agreement, "Intellectual Property
Right" means any trademark, service mark, trade name, mask work, copyright,
patent, software license, other data base, invention, trade secret, know-how
(including any registrations or applications for registration of any of the
foregoing) or any other similar type of proprietary intellectual property right.
SECTION 4.19. Environmental Matters. (a) Except for such matters,
individually or in the aggregate, as would not be reasonably expected to have a
Material Adverse Effect or as set forth in Schedule 4.19, the Company 10-K or
the Company 10-Qs:
(i) no notice, notification, demand, request for information,
citation, summons or order has been received, no complaint has been
filed, no penalty has been assessed, and no investigation, action,
claim, suit, proceeding or review (or any basis therefor) is pending
or, to the knowledge of the Company or any Subsidiary, is threatened by
any governmental entity or other Person with respect to any matters
relating to the Company or any Subsidiary and relating to or arising
out of any Environmental Law;
21
<PAGE>
(ii) there are no liabilities of or relating to the Company or
any Subsidiary of any kind whatsoever whether accrued, contingent,
absolute, determined, determinable or otherwise, arising under or
relating to any Environmental Law, and there are no facts, conditions,
situations or set of circumstances that could reasonably be expected
to result in or be the basis for any such liability;
(iii) the Company and its Subsidiaries are and have been in
compliance with all Environmental Laws and have obtained and are in
compliance with all Environmental Permits; and
(iv) no Hazardous Substance has been discharged, disposed of,
dumped, injected, pumped, deposited, spilled, leaked, emitted or
released at any property now or previously owned, leased or operated
by the Company or any Subsidiary.
For purposes of this Section 4.19(a), the "Company" and "Subsidiary"
shall include any entity which is, in whole or in part, a predecessor of the
Company or any Subsidiary.
(b) Since January 1, 1997, except as set forth in Schedule 4.19, there
has been no written environmental investigation, study, audit, test, review or
other analysis conducted of which the Company has knowledge in relation to the
current or prior business of the Company or any Subsidiary or any property or
facility now or previously owned, leased or operated by the Company or any
Subsidiary which has not been delivered (to the extent the Company has
possession thereof) to Parent at least five days prior to the date hereof.
(c) Except as set forth in Schedule 4.19, neither the Company nor any
Subsidiary owns, leases or operates or has owned, leased or operated any real
property, or conducts or has since January 1, 1997 conducted any operations, in
New Jersey or Connecticut.
(d) For purposes of this Section 4.19, the following terms shall have
the meanings set forth below:
"Environmental Laws" means any federal, state, provincial, local and
foreign law (including, without limitation, common law), treaty, judicial
decision, regulation, rule, judgment, order, decree, injunction, permit or
governmental restriction or requirement or any agreement or contract with any
governmental authority or other third party, relating to human health and
safety, the environment
22
<PAGE>
or to pollutants, contaminants, wastes or chemicals or any toxic, radioactive,
ignitable, corrosive, reactive or otherwise hazardous substances, wastes or
materials.
"Environmental Permits" means all permits, licenses, franchises,
certificates, approvals and other similar authorizations of governmental
authorities relating to or required by Environmental Laws and affecting the
business of the Company or any of its Subsidiaries as currently conducted.
"Hazardous Substances" means any pollutant, contaminant, waste or
chemical or any toxic, radioactive, ignitable, corrosive, reactive or otherwise
hazardous substance, waste or material, or any substance, waste or material
having any constituent elements displaying of the foregoing characteristics,
including, without limitation, petroleum, its derivatives, by-products and other
hydrocarbons, which in any event is regulated under Environmental Laws.
SECTION 4.20. Finders' Fees. Except for J.P. Morgan Securities Inc., a
copy of whose engagement agreement has been provided to Parent, there is no
investment banker, broker, finder or other intermediary which has been retained
by or is authorized to act on behalf of the Company or any Subsidiary who might
be entitled to any fee or commission from Parent or any of its affiliates upon
consummation of the transactions contemplated by this Agreement.
SECTION 4.21. Inapplicability of Certain Restrictions. The Company has
taken all action necessary to exempt the Merger, this Agreement, and the
transactions contemplated hereby from Section 203 of the Delaware Law. Except to
the extent otherwise provided in the condition set forth in Section 9.03(c), the
adoption of this Agreement by the affirmative vote of the holders of Shares
entitling such holders to exercise at least a majority of the voting power of
the Shares is the only vote of holders of any class or series of the capital
stock of the Company required to adopt this Agreement, or to approve the Merger
or any of the other transactions contemplated hereby and no higher or additional
vote is required pursuant to the Company's Certificate of Incorporation or
otherwise.
SECTION 4.22. Rights Plan. The Company has not entered into, and its
Board of Directors has not adopted or authorized the adoption of, a shareholder
rights or similar agreement.
23
<PAGE>
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF PARENT
Parent represents and warrants to the Company as of the date hereof and
as of the Effective Time that:
SECTION 5.01. Corporate Existence and Power. Each of Parent and Merger
Co. is a corporation duly incorporated, validly existing and in good standing
under the laws of Delaware and has all corporate powers and all material
governmental licenses, authorizations, consents and approvals required to carry
on its business as now conducted. Since the date of its incorporation, neither
Parent nor Merger Co. has engaged in any activities other than in connection
with or as contemplated by this Agreement or in connection with arranging any
financing required to consummate the transactions contemplated hereby.
SECTION 5.02. Corporate Authorization. The execution, delivery and
performance by Parent and Merger Co. of this Agreement and the consummation
by Parent and Merger Co. of the transactions contemplated hereby are within the
corporate powers of Parent and Merger Co. and have been duly authorized by all
necessary corporate and stockholder action. This Agreement constitutes a valid
and binding agreement of each of Parent and Merger Co..
SECTION 5.03. Governmental Authorization. The execution, delivery and
performance by Parent and Merger Co. of this Agreement and the consummation by
Parent and Merger Co. of the transactions contemplated by this Agreement require
no action by or in respect of, or filing with, any governmental body, agency,
official or authority other than (a) the filing of a certificate of merger in
accordance with Delaware Law, (b) compliance with any applicable requirements of
the HSR Act; and (c) compliance with any applicable requirements of the Exchange
Act.
SECTION 5.04. Non-contravention. The execution, delivery and
performance by Parent and Merger Co. of this Agreement and the consummation by
Parent and Merger Co. of the transactions contemplated hereby do not and will
not (a) contravene or conflict with the certificate of incorporation or bylaws
of Parent or Merger Co., (b) assuming compliance with the matters referred to in
Section 5.03, contravene or conflict with any provision of law, regulation,
judgment, order or decree binding upon Parent or Merger Co., or (c) constitute a
default under or give rise to any right of termination, cancellation or
acceleration of any right or obligation of Parent or Merger Co. or to a loss of
any benefit to which Parent or Merger Co. is entitled under any agreement,
contract or other instrument binding upon Parent or Merger Co..
24
<PAGE>
SECTION 5.05. Disclosure Documents. (a) The information with respect to
Parent and its subsidiaries that Parent furnishes to the Company in writing
specifically for use in any Company Disclosure Document will not contain, any
untrue statement of a material fact or omit to state any material fact necessary
in order to make the statements made therein, in the light of the circumstances
under which they were made, not misleading (i) in the case of the Company Proxy
Statement at the time the Company Proxy Statement or any amendment or supplement
thereto is first mailed to stockholders of the Company, at the time the
stockholders vote on adoption of this Agreement and at the Effective Time, and
(ii) in the case of any Company Disclosure Document other than the Company Proxy
Statement, at the time of the filing thereof and at the time of any distribution
thereof.
(b) The Parent Disclosure Documents, when filed, will comply as to
form in all material respects with the applicable requirements of the Exchange
Act and will not at the time of the filing thereof, at the time of any
distribution thereof or at the time of the meeting of the Company's
stockholders, contain any untrue statement of a material fact or omit to state
any material fact necessary to make the statements made therein, in the light of
the circumstances under which they were made, not misleading, provided, that
this representation and warranty will not apply to statements or omissions in
the Parent Disclosure Documents based upon information furnished to Parent in
writing by the Company specifically for use therein.
SECTION 5.06. Finders' Fees. Except for Donaldson, Lufkin & Jenrette
Securities Corporation ("DLJSC"), whose fees will be paid by Parent, there is no
investment banker, broker, finder or other intermediary who might be entitled to
any fee or commission from the Company or any of its affiliates upon
consummation of the transactions contemplated by this Agreement.
SECTION 5.07. Financing. The Company has received copies of (a) a
commitment letter dated October 1, 2000 from DLJMB and certain of its affiliated
funds and entities, and certain other Persons pursuant to which each of the
foregoing has committed, subject to the terms and conditions set forth therein,
to purchase equity securities and debt securities of Parent for an aggregate
amount equal to $1,194.2 million, (b) a letter dated October 1, 2000 from DLJ
Bridge Finance Inc. ("DLJ Bridge Fund") pursuant to which DLJ Bridge Fund has
committed, subject to the terms and conditions set forth therein, to purchase
senior unsecured bridge notes of Merger Co. in the aggregate principal amount of
up to $500.0 million and senior subordinated bridge notes of Merger Co. in the
aggregate principal amount of up to $400.0 million, and (c) a letter dated
October 1, 2000 from DLJ Capital Funding, Inc. ("DLJ Senior Debt Fund") pursuant
to
25
<PAGE>
which DLJ Senior Debt Fund has committed, subject to the terms and conditions
set forth therein, to enter into one or more credit agreements providing for
senior terms loans to Merger Co. of up to an aggregate of $1,150.0 million and
senior revolving loans of up to $500.0 million. As used in this Agreement, the
aforementioned entities shall hereinafter be referred to as the "Financing
Entities," the commitments referred to above shall be referred to as the
"Financing Agreements" and the financing to be provided thereunder shall be
referred to as the "Financing." The aggregate proceeds of the Financing are in
an amount sufficient to consummate the transactions contemplated hereby,
including, without limitation, to pay the Merger Consideration, to repay certain
existing indebtedness of the Company and its Subsidiaries, together with any
interest, premium or penalties payable in connection therewith, but excluding
the 7.95% senior notes due 2010, the 7.45% senior notes due 2007, the 6.125%
senior notes due 2006, and the 7.125% senior notes due 2026 and certain existing
capital leases, to provide a reasonable amount of working capital financing and
to pay related fees and expenses (such amounts, the "Required Amounts"). As of
the date hereof, none of the letters relating to the Financing referred to above
has been withdrawn and Parent does not know of any facts or circumstances that
may reasonably be expected to result in any of the conditions set forth in the
letters relating to the Financing not being satisfied. Parent believes that the
Financing will not create any liability to the directors and stockholders of the
Company under any federal or state fraudulent conveyance or transfer law. Parent
further believes that, upon the consummation of the transactions contemplated
hereby, including, without limitation, the Financing, (i) the Surviving
Corporation (A) will not be insolvent, (B) will not be left with unreasonably
small capital and (C) will not have incurred debts beyond its ability to pay
such debts as they mature, and (ii) the capital of the Company will not be
impaired.
SECTION 5.08. Ownership of Shares. (a) As of the date hereof, neither
Parent nor Merger Co. beneficially owns any Shares, other than pursuant to or as
a result of (i) the Voting Agreement and (ii) that certain letter agreement
dated as of the date hereof by and among DLJ Merchant Banking III, Inc. and the
Stockholders, substantially in the form furnished to Parent.
(b) As of the date hereof, the Stockholders do not beneficially own
any Shares except pursuant to, as a result of, or as disclosed in the Voting
Agreement (including the schedules thereto).
SECTION 5.09. Ownership of Parent Stock. (a) As of the date of
execution of this Agreement, the proposed equity commitment of each proposed
shareholder of Parent as of the Effective Time is as set forth in Schedule
5.09(a).
26
<PAGE>
(b) Except as set forth in Schedule 5.09(b), as of the date hereof,
there are no arrangements, understandings or agreements between any of Parent,
Merger Co., DLJMB or any of their affiliates on the one hand, and any directors,
officers or employees of the Company or any Subsidiary or any stockholder of the
Company on the other hand, relating to the transactions contemplated hereby.
ARTICLE 6
COVENANTS OF THE COMPANY
SECTION 6.01. Conduct of the Company. From the date hereof until the
Effective Time, the Company and the Subsidiaries shall conduct their business in
the ordinary course consistent with past practice and shall use their reasonable
best efforts to preserve intact their business organizations and relationships
with third parties and to keep available the services of their present officers
and employees. Without limiting the generality of the foregoing, from the date
hereof until the Effective Time and unless consented to in writing by Parent,
the Company will not and will cause its Subsidiaries not to:
(a) adopt or propose any change in its certificate of incorporation or
bylaws;
(b) except pursuant to existing agreements or arrangements, or as
specifically permitted by this Agreement:
(i) acquire (by merger, consolidation or acquisition of stock or
assets) any corporation, partnership or other business organization or
division thereof for an amount in excess of $20 million in the
aggregate, or sell, lease or otherwise dispose of a subsidiary or an
amount of assets or securities for an amount in excess of $125 million
in the aggregate;
(ii) make any investment in an amount in excess of $20 million in
the aggregate whether by purchase of stock or securities,
contributions to capital or any property transfer, or purchase for an
amount in excess of $20 million in the aggregate, any property or
assets of any other individual or entity;
(iii) other than in the ordinary course of business consistent
with past practice, waive, release, grant, or transfer any rights of
material value;
27
<PAGE>
(iv) other than in the ordinary course of business consistent
with past practice, modify or change in any material respect any
existing material license, lease, contract, or other document;
(v) incur, assume or prepay an amount of long-term or short-term
debt in excess of $125 million in the aggregate (net of cash and
marketable securities);
(vi) assume, guarantee, endorse or otherwise become liable or
responsible (whether directly, contingently or otherwise) for the
obligations of any other person (other than any Subsidiary) which, are
in excess of $10 million in the aggregate;
(vii) make any loans, advances or capital contributions to, or
investments in, any other person which are in excess of $20 million in
the aggregate; or
(viii) authorize any new capital expenditures which, individually
or in the aggregate, would cause total capital expenditures for the
calendar year 2000 and the first quarter of calendar year 2001 to
exceed $565 million.
(c) split, combine or reclassify any shares of its capital stock,
declare, set aside or pay any dividend or other distribution (whether in cash,
stock or property or any combination thereof) in respect of its capital stock
except regular quarterly dividends, other than cash dividends and distributions
by a wholly owned subsidiary of the Company to the Company or to a subsidiary
all of the capital stock which is owned directly or indirectly by the Company,
or, other than consistent with its past practice of acquiring Shares to meet its
obligation to reserve and issue Shares under any stock option or compensation
plan or arrangement of the Company, redeem, repurchase or otherwise acquire or
offer to redeem, repurchase, or otherwise acquire any of its securities or any
securities of its Subsidiaries;
(d) except as specifically permitted by this Agreement, adopt or amend
any material bonus, profit sharing, compensation, severance, termination, stock
option, pension, retirement, deferred compensation, employment or employee
benefit plan, agreement, trust, plan, fund or other arrangement for the benefit
and welfare of any director, officer or employee, or (except for normal
increases in the ordinary course of business that are consistent with past
practices and that, in the aggregate, do not result in a material increase in
benefits or compensation expense to the Company) increase in any manner the
compensation or fringe benefits of
28
<PAGE>
any director, officer or employee or pay any benefit not required by any
existing plan or arrangement (including, without limitation, the granting of
stock options or stock appreciation rights or the removal of existing
restrictions in any benefit plans or agreements);
(e) except as set forth in Schedule 6.01, pay, discharge or satisfy
any material claims, liabilities or obligations (whether absolute, accrued,
asserted or unasserted, contingent or otherwise) other than the payment,
discharge or satisfaction in the ordinary course of business, consistent with
past practices, of liabilities reflected or reserved against in the consolidated
financial statements of the Company or incurred in the ordinary course of
business, consistent with past practices;
(f) other than in the ordinary course of business consistent with past
practice and except as set forth in Schedule 6.01, make or change any material
tax election or settle or compromise any material income tax liability;
(g) except as set forth in Schedule 6.01, approve any new labor
agreements;
(h) take any action other than in the ordinary course of business and
consistent with past practices with respect to accounting policies or
procedures;
(i) agree or commit to do any of the foregoing; or
(j) knowingly take or agree or commit to take any action that would
make any representation and warranty of the Company hereunder inaccurate in any
material respect at, or as of any time prior to, the Effective Time.
SECTION 6.02. Stockholder Meeting; Proxy Material. The Company shall
cause a meeting of its stockholders (the "Company Stockholder Meeting") to be
duly called and held as soon as reasonably practicable for the purpose of voting
on the approval and adoption of this Agreement and the Merger. Subject to
Section 6.04, the Board of Directors of the Company shall recommend approval and
adoption of this Agreement and the Merger by the Company's stockholders and
shall not withdraw such recommendation. In connection with such meeting, the
Company (a) will promptly prepare and file with the SEC, will use its reasonable
best efforts to have cleared by the SEC and will thereafter mail to its
stockholders as promptly as practicable the Company Proxy Statement and all
other proxy materials for such meeting, (b) subject to Section 6.04, will use
its reasonable best efforts to obtain the necessary approvals by its
stockholders of this Agreement and
29
<PAGE>
the transactions contemplated hereby and (c) will otherwise comply with all
legal requirements applicable to such meeting.
SECTION 6.03. Access to Information. From the date hereof until the
Effective Time, the Company will (a) give Parent and its counsel, financial
advisors, auditors and other authorized representatives (collectively, the
"Representatives") reasonable access during normal business hours to the
offices, properties, books and records of the Company and the Subsidiaries, (b)
provide the Representatives access to and the right to consult with
representatives of the Company handling any labor negotiations with any union
representing employees of the Company, (c) furnish to Parent and the
Representatives such financial and operating data and other information as such
Persons may reasonably request in order to complete the transactions
contemplated hereby and (d) instruct the Company's employees, counsel and
financial advisors to cooperate with Parent in its investigation of the business
of the Company and the Subsidiaries; provided that (i) any information provided
to Parent or the Representatives pursuant to this Section shall be subject to
the Confidentiality Agreement and (ii) Parent shall inform the Representatives
receiving such information of the terms of the Confidentiality Agreement and
shall be responsible for any breach by such Representatives of such
Confidentiality Agreement; and provided further that no investigation pursuant
to this Section shall affect any representation or warranty given by the Company
to Parent hereunder.
SECTION 6.04. Other Offers. (a) Neither the Company nor any of its
Subsidiaries shall (whether directly or indirectly through advisors, agents or
other intermediaries), nor shall the Company or any of its Subsidiaries
authorize or permit any of its or their officers, directors, agents,
representatives, advisors or Subsidiaries to (x) solicit, initiate or take any
action to facilitate or encourage the submission of inquiries, proposals or
offers from any Person (as defined below) (other than Parent) relating to any
Acquisition Proposal, or agree to or endorse any Acquisition Proposal, (y) enter
into or participate in any discussions or negotiations regarding any Acquisition
Proposal, or furnish to any Person any information with respect to its business,
properties or assets in connection with any Acquisition Proposal or (z) grant
any waiver or release under any standstill or similar agreement with respect to
any class of equity securities of the Company or any of its Subsidiaries;
provided, however, that the foregoing shall not prohibit the Company (either
directly or indirectly through advisors, agents or other intermediaries) from
(i) furnishing information pursuant to a confidentiality letter deemed
appropriate by the Special Committee (a copy of which shall be provided for
informational purposes only to Parent) concerning the Company and its
businesses, properties or assets to a Person who in the judgment of the Special
30
<PAGE>
Committee has made a bona fide Acquisition Proposal, (ii) engaging in
discussions or negotiations with such a Person who in the judgment of the
Special Committee has made a bona fide Acquisition Proposal, (iii) following
receipt of a bona fide Acquisition Proposal, taking and disclosing to its
stockholders a position contemplated by Rule 14e-2(a) under the Exchange Act or
otherwise making disclosure to its stockholders, (iv) following receipt of an
Acquisition Proposal, failing to make or withdrawing or modifying its
recommendation referred to in Section 6.02 and/or (v) taking any non-appealable,
final action ordered to be taken by the Company by any court of competent
jurisdiction but in each case referred to in the foregoing clauses (i), (ii) and
(iv) only if (i) the Company has complied with the terms of this Section 6.04,
(ii) the Company has received an unsolicited Acquisition Proposal which the
Board of Directors of the Company determines in good faith is reasonably likely
to result in a Superior Proposal, and (iii) the Company shall have delivered to
Parent a prior written notice advising Parent that it intends to take such
action. The Company will immediately cease and cause its advisors, agents and
other intermediaries to cease any and all existing activities, discussions or
negotiations with any parties conducted heretofore with respect to any of the
foregoing. For purposes of this Section 6.04, the term "Person" means any
person, corporation, entity or "group," as defined in Section 13(d) of the
Exchange Act, other than Parent or any of its affiliates.
"Acquisition Proposal" means any offer or proposal for a merger,
reorganization, consolidation, share exchange, business combination or other
similar transaction involving the Company or any of its Subsidiaries or any
proposal or offer to acquire, directly or indirectly, securities representing
more than 50% of the voting power of the Company, or a substantial portion of
the assets of the Company and its Subsidiaries taken as a whole, other than the
Merger contemplated by this Agreement.
"Superior Proposal" means any bona fide written Acquisition Proposal
which (i) the Board of Directors of the Company determines in good faith (after
consultation with a financial advisor of nationally recognized reputation and
taking into account all the terms and conditions of the Acquisition Proposal) is
(a) more favorable to the Company and its stockholders from a financial point of
view than the transaction contemplated hereunder, and (b) reasonably capable of
being completed, including a conclusion that its financing, to the extent
required, is then committed or is in the good faith judgment of the Board of
Directors of the Company, reasonably capable of being financed by the Person
making such Acquisition Proposal.
31
<PAGE>
(b) If a Payment Event (as hereinafter defined) occurs, the Company
shall pay to Parent, if pursuant to (x) below, simultaneously with the
occurrence of such Payment Event or, if pursuant to (y) below, within two
business days following such Payment Event, a fee of $59,000,000 (the
"Termination Fee").
"Payment Event" means (x) the termination of this Agreement by the
Company or Parent pursuant to Sections 10.01 (d) or (e); or (y) the termination
of this Agreement pursuant to Section 10.01(b) or (f) if at the time of such
termination (or, in the case of a termination pursuant to Section 10.01(f), at
the time of the stockholders meeting), there shall have been outstanding an
Acquisition Proposal pursuant to which stockholders of the Company would receive
cash, securities or other consideration having an aggregate value in excess of $
22.25 per Share, and within six months of any such termination described in
clause (y) above the Company enters into a definitive agreement for or
consummates such Acquisition Proposal or another Acquisition Proposal with a
higher per Share value than such Acquisition Proposal.
(c) Upon the termination of this Agreement pursuant to Sections
10.01(d), (e) or (f) the Company shall reimburse Parent and its affiliates not
later than two business days after submission of reasonable documentation
thereof for 100% of their documented out-of-pocket fees and expenses (including,
without limitation, the reasonable fees and expenses of their counsel and
investment banking fees), actually incurred by any of them or on their behalf in
connection with this Agreement and the transactions contemplated hereby and the
arrangement of, obtaining the commitment to provide or obtaining the Financing
for the transactions contemplated by this Agreement (including fees payable to
the Financing Entities and their respective counsel) subject to a maximum
reimbursement amount of $7,500,000.
(d) The Company acknowledges that the agreements contained in this
Section 6.04 are an integral part of the transactions contemplated by this
Agreement, and that, without these agreements, neither Parent nor Merger Co.
would enter into this Agreement; accordingly, if the Company fails to promptly
pay any amount due pursuant to this Section 6.04, and, in order to obtain such
payment, the other party commences a suit which results in a judgment against
the Company for the fee or fees and expenses set forth in this Section 6.04, the
Company shall also pay to Parent its costs and expenses incurred in connection
with such litigation.
(e) This Section 6.04 shall survive any termination of this Agreement,
however caused, except a termination pursuant to Section 10.01(a) or (c).
32
<PAGE>
SECTION 6.05. Notices of Certain Events. The Company shall promptly
notify Parent of:
(a) any notice or other communication from any Person alleging that
the consent of such Person is or may be required in connection with the
transactions contemplated by this Agreement;
(b) any notice or other communication from any governmental or
regulatory agency or authority in connection with the transactions contemplated
by this Agreement;
(c) any actions, suits, claims, investigations or proceedings
commenced or, to the best of its knowledge threatened against, relating to or
involving or otherwise affecting the Company or any Subsidiary which, if pending
on the date of this Agreement, would have been required to have been disclosed
pursuant to Section 4.12 or which relate to the consummation of the transactions
contemplated by this Agreement.
SECTION 6.06. Resignation of Directors. Prior to the Effective Time,
the Company shall deliver to Parent evidence satisfactory to Parent of the
resignation of all directors of the Company (except as requested by Parent)
effective at the Effective Time.
ARTICLE 7
COVENANTS OF PARENT
Parent agrees that:
SECTION 7.01. SEC Filings. As soon as practicable after the date of
announcement of the execution of the Merger Agreement, Parent shall file
(separately, or as part of the Company Proxy Statement) with the SEC, if
required, a Rule 13E-3 Transaction Statement (the "Transaction Statement") with
respect to the Merger (together with any supplements or amendments thereto,
collectively the "Parent Disclosure Documents"). Parent and the Company each
agrees to correct any information provided by it for use in the Parent
Disclosure Documents if and to the extent that it shall have become false or
misleading in any material respect. Parent agrees to take all steps necessary to
cause the Parent Disclosure Documents as so corrected to be filed with the SEC
and to be disseminated to holders of Shares, in each case as and to the extent
required by applicable federal securities laws. The Company and its counsel
shall be given an opportunity to review and comment on each Parent Disclosure
Document prior to its being filed with the SEC.
33
<PAGE>
SECTION 7.02. Confidentiality. The Confidentiality Agreement dated July
5, 2000 between the Company and DLJ Merchant Banking III, Inc. (the
"Confidentiality Agreement") shall continue in full force and effect prior to
the Effective Time and after any termination of this Agreement.
SECTION 7.03. Voting of Shares. Parent agrees to vote all Shares
beneficially owned by it in favor of adoption of this Agreement at the Company
Stockholder Meeting.
SECTION 7.04. Director and Officer Liability. For six years after the
Effective Time, Parent will cause the Surviving Corporation to indemnify and
hold harmless the present and former officers and directors of the Company in
respect of acts or omissions occurring prior to the Effective Time to the extent
provided under the Company's articles of incorporation and bylaws in effect on
the date hereof; provided that such indemnification shall be subject to any
limitation imposed from time to time under applicable law. For six years after
the Effective Time, Parent will cause the Surviving Corporation to use its best
efforts to provide officers' and directors' liability insurance in respect of
acts or omissions occurring prior to the Effective Time covering each such
Person currently covered by the Company's officers' and directors' liability
insurance policy on terms with respect to coverage and amount no less favorable
than those of such policy in effect on the date hereof, provided that if the
aggregate annual premiums for such insurance at any time during such period
shall exceed 200% of the per annum rate of premium paid by the Company in its
last full fiscal year for such insurance, then Parent shall cause the Surviving
Corporation to provide only such coverage as shall then be available at an
annual premium equal to 200% of such rate.
SECTION 7.05. Employee Matters. Parent agrees that, for at least one
year from the Effective Time, subject to applicable law, the Surviving
Corporation and its Subsidiaries will provide benefits to its employees which
will, in the aggregate, be comparable to those currently provided by the Company
and its Subsidiaries to their employees (other than any stock option or other
equity based incentive plan currently provided by the Company); provided,
however, that this Section 7.05 shall not apply to any employees represented for
purposes of collective bargaining. Notwithstanding the foregoing, nothing herein
shall otherwise limit the Surviving Corporation's right to amend, modify or
terminate any Employee Plan.
SECTION 7.06. Financing. Parent shall use its reasonable best efforts
to obtain the Financing. In the event that any portion of such Financing becomes
unavailable, regardless of the reason therefor, Parent will use its reasonable
best
34
<PAGE>
efforts to obtain alternative financing on substantially comparable or more
favorable terms from other sources.
SECTION 7.07. Other Arrangements. Parent shall promptly notify the
Company of any arrangements, understandings or agreements entered into prior to
the Company Stockholder Meeting between Parent, Merger Co., DLJMB or any of
their affiliates on the one hand, and any directors, officers or employees of
the Company or any Subsidiary or any stockholder of the Company on the other
hand, relating to the transactions contemplated hereby
SECTION 7.08. Obligations of Merger Co.. Parent will take all action
necessary to cause Merger Co. to perform its obligations under this Agreement
and to consummate the Merger on the terms and conditions set forth in this
Agreement.
SECTION 7.09. Amendments to the Voting Agreement. Neither Parent nor
Merger Co. will agree to any amendment of, or waiver of compliance with, clauses
4(iii) or 15 of the Voting Agreement, without the prior written consent of the
Company.
SECTION 7.10. Acquisitions of Shares. Neither Parent nor Merger Co.
will acquire any Shares prior to the Closing or the termination of this
Agreement, other than Shares owned beneficially by any Stockholder.
SECTION 7.11. Notices of Certain Events. Parent shall promptly notify
the Company of:
(a) any notice or other communication from any Person alleging that
the consent of such Person is or may be required in connection with the
transactions contemplated by this Agreement;
(b) any notice or other communication from any governmental or
regulatory agency or authority in connection with the transactions contemplated
by this Agreement;
(c) any actions, suits, claims, investigations or proceedings
commenced or, to the best of its knowledge threatened against, relating to or
involving or otherwise affecting Parent or any of its subsidiaries which relate
to the consummation of the transactions contemplated by this Agreement.
35
<PAGE>
ARTICLE 8
COVENANTS OF PARENT AND THE COMPANY
The parties hereto agree that:
SECTION 8.01. Best Efforts. Subject to the terms and conditions of this
Agreement, each party will use its reasonable best efforts to take, or cause to
be taken, all actions and to do, or cause to be done, all things necessary,
proper or advisable under applicable laws and regulations to consummate the
transactions contemplated by this Agreement. Subject to Section 6.04, each party
shall also refrain from taking, directly or indirectly, any action contrary to
or inconsistent with the provisions of this Agreement, including action which
would impair such party's ability to consummate the Merger and the other
transactions contemplated hereby. Without limiting the foregoing, the Company
and its Board of Directors shall use their reasonable best efforts to (a) take
all action necessary so that no state takeover statute or similar statute or
regulation is or becomes applicable to the Merger or any of the other
transactions contemplated by this Agreement and (b) if any state takeover
statute or similar statute or regulation becomes applicable to any of the
foregoing, take all action necessary so that the Merger and the other
transactions contemplated by this Agreement may be consummated as promptly as
practicable on the terms contemplated by this Agreement and otherwise to
minimize the effect of such statute or regulation on the Merger and the other
transactions contemplated by this Agreement. Each of Parent and the Company
shall use its best efforts to eliminate any impediment under any antitrust,
competition or trade regulation laws that may be asserted by any governmental
entity with respect to the Merger so as to enable the Closing to occur as soon
as reasonably practicable, which, in the case of Parent, shall be construed to
include the reallocation of the proposed ownership by stockholders of Parent
other than DLJMB and its affiliates so as to address any such impediment.
SECTION 8.02. Certain Filings. (a) The Company and Parent shall use
their respective reasonable best efforts to take or cause to be taken, (i) all
actions necessary, proper or advisable by such party with respect to the prompt
preparation and filing with the SEC of the Company Disclosure Documents and the
Parent Disclosure Documents, and (ii) such actions as may be required to have
the Company Proxy Statement cleared by the SEC, in each case as promptly as
practicable.
(b) The Company agrees to provide all necessary and reasonable
cooperation, in connection with the arrangement of any financing to be
consummated contemporaneous with the consummation of the Merger including
without limitation, (x) allowing the participation by its officers in meetings,
due
36
<PAGE>
diligence sessions and road shows, (y) the preparation of offering memoranda,
private placement memoranda, prospectuses and similar documents, and (z) the
execution and delivery of any commitment letters, underwriting or placement
agreements, registration statements, pledge and security documents, other
definitive financing documents, or other requested certificates or documents,
including allowing for a certificate of the chief financial officer of the
Company with respect to solvency matters, comfort letters of accountants and
legal opinions as may be reasonably requested by Parent; provided that the
Company shall not be liable for any fees or expenses incurred in connection with
such activities in the event that the Merger is not consummated.
(c) The Company and Parent shall cooperate with one another (i) in
determining whether any action by or in respect of, or filing with, any
governmental body, agency or official, or authority is required, or any actions,
consents, approvals or waivers are required to be obtained from parties to any
material contracts, in connection with or as a result of the consummation of the
transactions contemplated by this Agreement and (ii) in seeking any such
actions, consents, approvals or waivers or making any such filings, furnishing
information required in connection therewith or with the Company Disclosure
Documents and Parent Disclosure Documents and seeking timely to obtain any such
actions, consents, approvals or waivers.
SECTION 8.03. Public Announcements. Parent and the Company will consult
with each other before issuing any press release or making any public statement
with respect to this Agreement and the transactions contemplated hereby and,
except for any press release or public statement as may be required by
applicable law or any listing agreement with any national securities exchange,
will not issue any such press release or make any such public statement prior to
such consultation.
SECTION 8.04. Further Assurances. At and after the Effective Time, the
officers and directors of the Surviving Corporation will be authorized to
execute and deliver, in the name and on behalf of the Company or Parent, any
deeds, bills of sale, assignments or assurances and to take and do, in the name
and on behalf of the Company or Parent, any other actions and things to vest,
perfect or confirm of record or otherwise in the Surviving Corporation any and
all right, title and interest in, to and under any of the rights, properties or
assets of the Company acquired or to be acquired by the Surviving Corporation as
a result of, or in connection with, the Merger.
37
<PAGE>
ARTICLE 9
CONDITIONS TO THE MERGER
SECTION 9.01. Conditions to the Obligations of Each Party. The
obligations of the Company, Parent and Merger Co. to consummate the Merger
are subject to the satisfaction of the following conditions:
(a) this Agreement shall have been adopted by the stockholders of the
Company in accordance with Delaware Law;
(b) any applicable waiting period under the HSR Act relating to the
Merger shall have expired or been terminated;
(c) no provision of any applicable law or regulation and no judgment,
injunction, order of decree shall prohibit or restrain the consummation of the
Merger; provided, however, that the Company and Parent shall each use its
reasonable efforts to have any such judgment, order, decree or injunction
vacated; and
(d) All consents, approvals and licenses of any governmental or other
regulatory body required in connection with the execution, delivery and
performance of this Agreement and for the Surviving Corporation to conduct the
business of the Company in substantially the manner now conducted, shall have
been obtained, unless the failure to obtain such consents, authorizations,
orders or approvals would not have a Material Adverse Effect after giving effect
to the transactions contemplated by this Agreement (including the Financing).
SECTION 9.02. Conditions to the Obligations of Parent and Merger Co..
The obligations of Parent and Merger Co. to consummate the Merger are subject
to the satisfaction or waiver by Parent of the following further conditions:
(a) (i) the Company shall have performed in all material respects all
of its obligations hereunder required to be performed by it at or prior to the
Effective Time, (ii) except as affected by actions specifically permitted by
this Agreement, the representations and warranties of the Company contained in
this Agreement and in any certificate or other writing delivered by the Company
pursuant hereto (x) that are qualified by materiality or Material Adverse Effect
shall be true at and as of the Effective Time as if made at and as of such time,
and (y) that are not qualified by materiality or Material Adverse Effect shall
be true in all material respects at and as of the Effective Time as if made at
and as of such time (except in respect of representations made as of a specified
date which shall be required to be true as of such specified date) and (iii)
Parent shall have received a certificate
38
<PAGE>
signed on behalf of the Company by the President or any Vice President of the
Company to the foregoing effect;
(b) there shall not be instituted or pending any action or proceeding
by any government or governmental authority or agency or any action or
proceeding by any other person that has a reasonable likelihood of success,
before any court or governmental authority or agency, (i) challenging or seeking
to make illegal, to delay materially or otherwise directly or indirectly to
restrain or prohibit the consummation of the Merger or seeking to obtain
material damages or otherwise directly or indirectly relating to the
transactions contemplated by this Agreement, (ii) seeking to restrain or
prohibit Parent's ownership or operation (or that of its subsidiaries or
affiliates) of all or any material portion of the business or assets of the
Company and its Subsidiaries, taken as a whole, or of Parent and its
subsidiaries, taken as a whole, or to compel Parent or any of its subsidiaries
or affiliates to dispose of or hold separate all or any material portion of the
business or assets of the Company and its Subsidiaries, taken as a whole, or of
Parent and its subsidiaries, taken as a whole, (iii) seeking to impose or
confirm material limitations on the ability of Parent or any of its subsidiaries
or affiliates to effectively control the business or operations of the Company
and its Subsidiaries, taken as a whole, or the ability of Parent or any of its
subsidiaries or affiliates effectively to exercise full rights of ownership of
any shares of the Company or any of its Subsidiaries or affiliates on all
matters properly presented to the Company's stockholders, or (iv) seeking to
require divestiture by Parent or any of its subsidiaries or affiliates of any
shares of the Company, and no court, arbitrator or governmental body, agency or
official shall have issued any judgment, order, decree or injunction, and there
shall not be any statute, rule or regulation proposed, adopted or enacted, that
is likely, directly or indirectly, to result in any of the consequences referred
to in the preceding clauses (i) through (iv);
(c) Parent shall have received all documents it may reasonably request
relating to the existence of the Company and the Subsidiaries and the authority
of the Company for this Agreement, all in form and substance satisfactory to
Parent;
(d) funds in an amount at least equal to the Required Amounts shall
have been made available to Parent and Merger Co. as contemplated in Section
5.07;
(e) the holders of not more than 5% of the outstanding Shares shall
have demanded appraisal of their Shares in accordance with Delaware Law;
(f) any consent or approval required under the agreements, contracts
or other instruments listed on Schedule 9.02 as a result of the execution of
this
39
<PAGE>
Agreement or the transactions contemplated hereby have been received by the
Company, and no such consent or approval shall have been revoked;
(g) total indebtedness (long and short term), net of cash and
marketable securities, of the Company and its Subsidiaries as of the Effective
Time shall not exceed $1.5 billion; and
(h) the Company shall not have revalued any of its assets, including,
without limitation, writing down the value of inventory in any manner or
writing- off notes or accounts receivable in any manner if the effect of such
revaluation would reasonably be expected to be a Material Adverse Effect.
SECTION 9.03. Condition to the Obligation of the Company. The
obligation of the Company to consummate the Merger is subject to the
satisfaction of the following further conditions:
(a) (i) Each of Parent and Merger Co. shall have performed in all
material respects all of its obligations hereunder required to be performed by
it at or prior to the Effective Time, (ii) except as affected by actions
specifically permitted by this Agreement, the representations and warranties of
Parent contained in this Agreement and in any certificate or other writing
delivered by Parent pursuant hereto (x) that are qualified by materiality or
Material Adverse Effect shall be true at and as of the Effective Time as if made
at and as of such time and (y) that are not qualified by materiality or Material
Adverse Effect shall be true in all material respects at and as of the Effective
Time as if made at and as of such time (except in respect of representations
made as of a specified date which shall be required to be true as of such
specified date) and (iii) the Company shall have received a certificate signed
by the President or any Vice President of Parent to the foregoing effect.
(b) The Board of Directors of the Company shall have received advice
reasonably satisfactory to the Special Committee from an independent advisor
(who may also be advisor to the Financing Entities) selected with reasonable
care by or on behalf of the Company confirming the belief of Parent set forth in
the last sentence of Section 5.07.
(c) This Agreement shall have been approved by the holders of a
majority of the Shares voting (whether in person or by proxy) at the Company
Stockholder Meeting other than Shares owned beneficially by any Person
identified in Schedule 9.03(c) or by an affiliate of any such Person (except as
to any such affiliate Shares owned in a financing or advisory capacity). This
condition shall not be waived by the Company unless (i) it has given written
40
<PAGE>
notice of its intention to so waive to the stockholders of the Company at least
10 business days prior to the Company Stockholder Meeting, (ii) such notice is
filed with the SEC, if required, and (iii) if such notice is so filed, it
complies as to form in all material respects with the applicable requirements of
the Exchange Act (except as to any information furnished to the Company by
Parent in writing specifically for inclusion in such notice).
ARTICLE 10
TERMINATION
SECTION 10.01. Termination. This Agreement may be terminated and the
Merger may be abandoned at any time prior to the Effective Time
(notwithstanding any approval of this Agreement by the stockholders of the
Company):
(a) by mutual written consent of the Company and Parent;
(b) by either the Company or Parent, if the Merger has not been
consummated by March 31, 2001, provided that the party seeking to exercise such
right is not then in breach in any material respect of any of its obligations
under this Agreement;
(c) by either the Company or Parent, if there shall be any law or
regulation that makes consummation of the Merger illegal or otherwise prohibited
or if any judgment, injunction, order or decree enjoining Parent or the Company
from consummating the Merger is entered and such judgment, injunction, order or
decree shall become final and nonappealable;
(d) by Parent if the Board of Directors of the Company shall have
withdrawn, or modified or amended in a manner adverse to Parent, its approval or
recommendation of this Agreement and the Merger or its recommendation that
stockholders of the Company adopt and approve this Agreement and the Merger or
approved, recommended or endorsed any proposal for a transaction other than the
Merger (including a tender or exchange offer for Shares) or if the Company has
failed to call the Company Stockholder Meeting or failed to mail the Company
Proxy Statement to its stockholders within 20 days after being cleared by the
SEC or failed to include in such statement the recommendation referred to above;
(e) by the Company, if (i) the Board of Directors of the Company
authorizes the Company, subject to complying with the terms of this Agreement,
to enter into a binding written agreement concerning a transaction that
constitutes
41
<PAGE>
a Superior Proposal and the Company notifies Parent in writing at least three
days prior to the proposed effectiveness of such termination that it intends to
enter into such an agreement, attaching a description of the material terms and
conditions thereof and permits Parent, within such three business day period to
submit a new offer, which shall be considered by the Special Committee in good
faith (it being understood that the Company shall not enter into any such
binding agreement during such three day period) and (ii) the Company prior to
such termination pursuant to this clause 10.01(e) pays to Parent in immediately
available funds the fees required to be paid pursuant to Section 6.04. The
Company agrees to notify Parent promptly if its intention to enter into a
written agreement referred to in its notification shall change at any time after
giving such notification; and
(f) by either the Company or Parent if, at a duly held stockholders
meeting of the Company or any adjournment thereof at which this Agreement and
the Merger are voted upon, the requisite stockholder adoption and approval shall
not have been obtained.
The party desiring to terminate this Agreement pursuant to Sections
10.01(b)-10.01(f) shall give written notice of such termination to the other
party in accordance with Section 11.01.
SECTION 10.02. Effect of Termination. If this Agreement is terminated
pursuant to Section 10.01, this Agreement shall become void and of no effect
with no liability on the part of any party hereto, except that termination of
this Agreement shall be without prejudice to any rights any party may have
hereunder against any other party for breach of this Agreement; provided that,
in the event of any such termination, no party shall under any circumstances
have any monetary liability to any other party based upon a breach of any
representation or warranty contained herein. The agreements contained in
Sections 6.04, 7.02, 10.02, 11.04 and 11.06 shall survive the termination
hereof.
ARTICLE 11
MISCELLANEOUS
SECTION 11.01. Notices. All notices, requests and other communications
to any party hereunder shall be in writing (including telecopy or similar
writing) and shall be given,
if to Parent or Merger Co., to:
42
<PAGE>
Thompson Dean
c/o DLJ Merchant Banking III, Inc.
277 Park Avenue
New York, NY 10172
Telecopy: 212-892-7272
with a copy to:
George R. Bason, Jr.
Davis Polk & Wardwell
450 Lexington Avenue
New York, New York 10017
Telecopy: 212-450-4800
if to the Company, to:
Robert L. Peterson, Chairman of the Board and Chief Executive
Officer, and JoAnn R. Smith, Chairperson of the Special
Committee, c/o IBP, inc.
800 Stevens Port Drive
Dakota Dunes, South Dakota 57049
Telecopy: (605) 235-2427
with a copy to:
Sheila B. Hagen, Esq.
c/o IBP, inc.
800 Stevens Port Drive
Dakota Dunes, South Dakota 57049
Telecopy: (605) 235-2427
and with an additional copy to:
Richard D. Katcher, Esq.
Wachtell, Lipton, Rosen & Katz
51 West 52nd Street
New York, New York 10019
Telecopy: 212-403-2222
or such other address or telecopy number as such party may hereafter specify for
the purpose by notice to the other parties hereto. Each such notice, request or
43
<PAGE>
other communication shall be effective (a) if given by telecopy, when such
telecopy is transmitted to the telecopy number specified in this Section and the
appropriate telecopy confirmation is received or (b) if given by any other
means, when delivered at the address specified in this Section.
SECTION 11.02. Survival of Representations and Warranties. The
representations and warranties and agreements contained herein and in any
certificate or other writing delivered pursuant hereto shall not survive the
Effective Time except for the representations, warranties and agreements set
forth in Sections 7.04, 7.05, 11.04 and 11.06.
SECTION 11.03. Amendments; No Waivers. (a) Any provision of this
Agreement may be amended or waived prior to the Effective Time if, and only if,
such amendment or waiver is in writing and signed, in the case of an amendment,
by each party to this Agreement or in the case of a waiver, by the party against
whom the waiver is to be effective; provided that after the adoption of this
Agreement by the stockholders of the Company, no such amendment or waiver shall,
without the further approval of such stockholders, alter or change (i) the
amount or kind of consideration to be received in exchange for any shares of
capital stock of the Company or (ii) any of the terms or conditions of this
Agreement if such alteration or change would adversely affect the rights of the
holders of any shares of capital stock of the Company.
(b) No failure or delay by any party in exercising any right, power or
privilege hereunder shall operate as a waiver thereof nor shall any single or
partial exercise thereof preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. The rights and remedies herein
provided shall be cumulative and not exclusive of any rights or remedies
provided by law.
SECTION 11.04. Expenses. Except as provided in Section 6.04, all costs
and expenses incurred in connection with this Agreement shall be paid by the
party incurring such cost or expense.
SECTION 11.05. Successors and Assigns; Benefit. The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns, provided that no party may assign,
delegate or otherwise transfer any of its rights or obligations under this
Agreement without the consent of the other parties hereto except that Parent and
Merger Co. may make such an assignment to one or more of their affiliates.
Nothing in this Agreement, expressed or implied, shall confer on any Person
other than the parties hereto, and their respective successors and assigns, any
rights, remedies, obligations, or liabilities under or by reason of this
Agreement, except that the
44
<PAGE>
present and former officers and directors of the Company shall have the rights
set forth in Section 7.04 hereof.
SECTION 11.06. Governing Law. This Agreement shall be construed in
accordance with and governed by the law of the State of New York, except that,
insofar as the procedures of the Merger that are subject to Delaware Law because
the Parent, Merger Co. and the Company are incorporated in Delaware are
concerned, the law of the State of Delaware shall apply.
SECTION 11.07. Counterparts; Effectiveness. This Agreement may be
signed in any number of counterparts, each of which shall be an original, with
the same effect as if the signatures thereto and hereto were upon the same
instrument. This Agreement shall become effective when each party hereto shall
have received counterparts hereof signed by all of the other parties hereto.
45
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
IBP, INC.
By: /s/ Robert L. Peterson
-----------------------
Name: Robert L. Peterson
Title: Chairman & CEO
RAWHIDE HOLDINGS CORPORATION
By: /s/ Ari Benacerraf
-----------------------
Name: Ari Benacerraf
Title: President
RAWHIDE ACQUISITION CORPORATION
By: /s/ Ari Benacerraf
-----------------------
Name: Ari Benacerraf
Title: President
46
<PAGE>
EXHIBIT 4
VOTING AGREEMENT
In consideration of Rawhide Holdings Corporation, a Delaware
corporation ("Parent"), and Rawhide Acquisition Corporation, a Delaware
corporation and wholly-owned subsidiary of Parent ("Merger Co."), entering into
on the date hereof an Agreement and Plan of Merger (the "Merger Agreement")
dated as of the date hereof with IBP, inc., a Delaware corporation (the
"Company"), which provides, among other things, that Merger Co., upon the terms
and subject to the conditions thereof, will be merged with and into the Company
(the "Merger") and each outstanding share of common stock, $0.05 par value, of
the Company (the "Company Common Stock") will be converted into the right to
receive the Merger Consideration (as defined in the Merger Agreement) in
accordance with the terms of such Agreement, each of the undersigned holders
(each, a "Stockholder" and collectively, the "Stockholders") of shares of
Company Common Stock agrees with Parent and Merger Co. as follows:
1. During the period (the "Agreement Period") beginning on the date
hereof and ending on the earlier of (i) the Effective Time (as defined in the
Merger Agreement), (ii) the date of any substantive amendment to the Merger
Agreement (including, without limitation, any amendment that increases the
Merger Consideration (as defined in the Merger Agreement)), which has not been
approved in writing by the Stockholder and (iii) the date of termination of the
Merger Agreement, the Stockholder hereby agrees to vote the shares of Company
Common Stock set forth opposite its name in Schedule A hereto (the "Schedule A
Securities") to approve and adopt the Merger Agreement, the Merger and all
agreements related to the Merger and any actions directly and reasonably related
thereto at any meeting or meetings of the stockholders of the Company, and at
any adjournment thereof or pursuant to action by written consent, at or by which
such Merger Agreement, or such other actions, are submitted for the
consideration and vote of the stockholders of the Company. Parent agrees to
notify the Stockholder promptly upon receipt by Parent, Merger Co. or DLJMB (as
defined in the Merger Agreement) of any information relating to any Acquisition
Proposal (as defined in the Merger Agreement) and to forward immediately to the
Stockholder by telecopy any written material delivered to any of them relating
to any such Acquisition Proposal.
2. During the Agreement Period, the Stockholder hereby agrees that it
will not vote any of its Schedule A Securities in favor of the approval of any
other merger, consolidation, sale of assets, reorganization, recapitalization,
liquidation or winding up of the Company or any other extraordinary transaction
involving
<PAGE>
the Company or any matters related to or in connection therewith, or any
corporate action relating to or the consummation of which would either frustrate
the purposes of, or prevent or delay the consummation of, the transactions
contemplated by the Merger Agreement.
3. During the Agreement Period, the Stockholder hereby irrevocably
appoints Parent as proxy for and on behalf of such Stockholder to vote
(including, without limitation, the taking of action by written consent) such
Stockholder's Schedule A Securities, for and in the name, place and stead of
such Stockholder for the matters and in the manner contemplated by paragraph 1
above.
4. During the Agreement Period, the Stockholder will not, directly or
indirectly, (i) take any action to solicit, initiate or encourage any
Acquisition Proposal (as defined in the Merger Agreement), (ii) engage in
negotiations or discussions with, or disclose any nonpublic information relating
to the Company or any Subsidiary or afford access to the properties, books or
records of the Company or any Subsidiary to, or otherwise assist, facilitate or
encourage, any Person (as defined in the Merger Agreement) that may be
considering making, or has made, an Acquisition Proposal or (iii) acquire
beneficial ownership (as defined in Rule 13d-3 of the Securities Exchange Act of
1934) of any shares of the Company Common Stock in addition to those set forth
in Schedule A (other than pursuant to or as a result of this Voting Agreement).
The Stockholder agrees to promptly notify Parent after receipt of any
Acquisition Proposal or any indication from any Person that it is considering
making an Acquisition Proposal or any request for nonpublic information relating
to the Company or any Subsidiary or for access to the properties, books or
records of the Company or any Subsidiary by any Person that may be considering
making, or has made, an Acquisition Proposal and will keep Parent fully informed
of the status and details of any such Acquisition Proposal, indication or
request (in each case, to the extent permitted by any confidentiality agreement
to which such Stockholder is a party).
5. The Stockholder hereby agrees not to exercise any rights
(including, without limitation, under Section 262 of the Delaware General
Corporation Law) to demand appraisal of any shares of Company Common Stock owned
by such Stockholder in connection with the Merger.
6. The Stockholder hereby represents and warrants to Parent that as
of the date hereof:
(a) The Stockholder (i) owns beneficially all of the shares of
Company Common Stock set forth opposite the Stockholder's name in
Schedule A hereto, and no other shares of Company Common Stock, (ii)
has the full and unrestricted legal power, authority and right to
enter into,
2
<PAGE>
execute and deliver this Voting Agreement without the consent or
approval of any other person and (iii) has not entered into any voting
agreement with or granted any person any proxy (revocable or
irrevocable) with respect to such shares (other than this Voting
Agreement).
(b) This Voting Agreement is the valid and binding agreement of
the Stockholder.
(c) No investment banker, broker or finder is entitled to a
commission or fee from the Stockholder or the Company in respect of
this Agreement based upon any arrangement or agreement made by or on
behalf of the Stockholder.
7. If any provision of this Voting Agreement shall be invalid or
unenforceable under applicable law, such provision shall be ineffective to the
extent of such invalidity or unenforceability only, without in any way affecting
the remaining provisions of this Voting Agreement.
8. This Voting Agreement may be executed in two or more counterparts
each of which shall be an original with the same effect as if the signatures
hereto and thereto were upon the same instrument.
9. The parties hereto agree that if for any reason any party hereto
shall have failed to perform its obligations under this Voting Agreement, then
the party seeking to enforce this Agreement against such non-performing party
shall be entitled to specific performance and injunctive and other equitable
relief, and the parties hereto further agree to waive any requirement for the
securing or posting of any bond in connection with the obtaining of any
such-injunctive or other equitable relief. This provision is without prejudice
to any other rights or remedies, whether at law or in equity, that any party
hereto may have against any other party hereto for any failure to perform its
obligations under this Voting Agreement.
10. This Voting Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware.
11. The Stockholder will, upon request, execute and deliver any
additional documents deemed by Parent to be necessary or desirable to complete
and effectuate the covenants contained herein.
12. This Agreement shall terminate upon the termination of the
Agreement Period.
3
<PAGE>
13. The Stockholder hereby agrees that if it sells, transfers,
assigns, encumbers or otherwise disposes (each, a "Transfer") of any Schedule A
Securities (whether to an affiliate or otherwise) during the Agreement Period,
such Stockholder shall require the transferee of such Schedule A Securities to
execute and deliver to Parent, Merger Co. and the Company a voting agreement
identical in form to this Voting Agreement except for the identity of the
Stockholder prior to or concurrent with the consummation of such Transfer.
Parent, Merger Co. and the Company understand and acknowledge that, subject to
the preceding sentence, the Stockholder is free to Transfer any Schedule A
Securities at such times and in such manner as it deems appropriate.
14. All other voting agreements signed with existing shareholders
prior to or concurrently herewith are substantially identical to this Agreement.
15. Nothing in this Agreement, express or implied, shall confer on any
person other than the parties hereto, and their respective successors and
assigns, any rights, remedies, obligations, or liabilities under or by reason of
this Agreement, except that clause 4(iii) of this Agreement shall inure to the
benefit of the Company and the Company shall be entitled to enforce such clause
to the same extent as if it were a party hereto.
16. All notices, requests and other communications to any party
hereunder shall be in writing (including telecopy or similar writing) and shall
be given,
If to Parent or Merger Co., to:
Thompson Dean
c/o DLJ Merchant Banking III, Inc.
277 Park Avenue
New York, New York 10172
Telecopy: 212-892-7272
with a copy to:
George R. Bason, Jr.
Davis Polk & Wardwell
450 Lexington Avenue
New York, New York 10017
Telecopy: 212-450-4800
4
<PAGE>
If to Booth Creek Partners Limited III, LLLP or Jeffrey J. Joyce, to:
Booth Creek Partners Limited III, LLLP
1000 South Frontage Rd., West
Suite 100
Vail, Colorado 81657
Telecopy: 970-476-4030
Telephone: 970-476-4030
Jeffrey J. Joyce
954 New Bedford Court
Marietta, Georgia 30068
Telecopy: 770-980-4905
Telephone: 770-980-4903
with a copy to:
Randall Doud
Skadden, Arps, Slate, Meagher & Flom LLP
4 Times Square
New York, New York 10036
Telecopy: 212-735-2000
Telephone: 212-735-2524
If to Archer-Daniels-Midland Company, to:
David Smith, Esq.
Archer-Daniels-Midland Company
4666 Faries Parkway
P.O. Box 1470
Decatur, IL 62525
Telecopy: (217) 424-6196
Telephone: (217) 424-6183
with a copy to:
James E. Nicholson
Faegre & Benson LLP
2200 Wells Fargo Center
90 South Seventh Street
Minneapolis, MN 55402
Telecopy: (612) 336-3026
Telephone: (612) 336-3203
5
<PAGE>
or such other address or telecopy or telephone number as such party may
hereafter specify for the purpose by notice to the other parties hereto. Each
such notice, request or other communication shall be effective (a) if given by
telecopy, when such telecopy is transmitted to the telecopy number specified in
this Section and the appropriate telecopy confirmation is received or (b) if
given by any other means, when delivered at the address specified in this
Section.
6
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Voting
Agreement as of the 1st day of October, 2000.
RAWHIDE HOLDINGS
CORPORATION
By /s/ Ari Benacerraf
-------------------------
Name: Ari Benacerraf
Title: President
RAWHIDE ACQUISITION
CORPORATION
By /s/ Ari Benacerraf
-------------------------
Name: Ari Benacerraf
Title: President
BOOTH CREEK PARTNERS
LIMITED III, LLLP
By /s/ Jeffrey Joyce
-------------------------
Name: Jeffrey Joyce
Title: Executive Vice President
JEFFREY J. JOYCE
By /s/ Jeffrey Joyce
-------------------------
ARCHER-DANIELS-
MIDLAND COMPANY
By /s/ D.J. Smith
-------------------------
Name: D.J. Smith
Title:
7
<PAGE>
SCHEDULE A
Shares of Company
Stockholder Common Stock
----------------------- ------------------
Booth Creek Partners Limited III, 3,644,923
LLLP
Jeffrey J. Joyce 643,030
Archer-Daniels-Midland Company 12,951,400
8
<PAGE>
EXHIBIT 5
DLJMB MERCHANT BANKING, INC.
October 1, 20000
We refer to (i) that certain commitment letter dated as of the date hereof to
Rawhide Holdings Corporation ("Parent") from DLJ Merchant Banking Partners III,
Inc. on behalf of DLJ Merchant Banking Partners III, L.P. and certain of its
affiliated funds and entities ("DLJMB") and certain of its affiliates,
Archer-Daniels-Midland Company ("ADM"), Booth Creek Partners Limited III, LLLP
("Booth Creek"), Jeffrey J. Joyce ("Joyce", and together with Booth Creek, the
"Booth Creek Investors") and certain other persons (the "Equity Commitment
Letter") and (ii) the Merger Agreement (the "Merger Agreement") dated as of the
date hereof among Parent, Rawhide Acquisition Corporation ("Merger Co.") and
IBP, inc. (the "Company"). DLJMB hereby agrees as follows:
1. Immediately prior to the Closing (as defined in the Merger
Agreement), DLJMB and/or certain of its affiliates will purchase that number of
shares of Common Stock of the Company from each of ADM, Booth Creek and Joyce as
is set forth on Exhibit A hereto for $22.25 per share, subject to the same
conditions as pertain to DLJMB's obligations to fund its equity commitment to
Parent under the Equity Commitment Letter. This is subject to execution and
delivery of a purchase agreement satisfactory to DLJMB containing customary
terms and conditions. The obligation set forth in this paragraph shall terminate
in the event that the Agreement Period (as defined in the Voting Agreement dated
as of the date hereof among Parent, Merger Co., ADM and the Booth Creek
Investors (the "Voting Agreement") expires pursuant to either Sections 1(ii) or
(iii) of the Voting Agreement.
2. If DLJMB or any of its affiliates proposes to acquire any Discount
Debentures or Warrants (as defined in the Equity Commitment Letter) from Parent
at or prior to the Closing, ADM, Booth Creek and Joyce shall each also have the
right to acquire Discount Debentures and Warrants from Parent pro rata to their
pro forma ownership of Common Stock (as set forth in the Equity Commitment
Letter excluding Common Stock held by Management Investors (as defined therein))
at the same time and for the same price as DLJMB and/or such affiliates acquire
such Discount Debentures and Warrants.
<PAGE>
3. Except in any case where, pursuant to the last sentence of Section
8.01 of the Merger Agreement, ADM's ownership of Parent is to be reduced, if the
shares of Parent to be purchased by ADM pursuant to the Equity Commitment Letter
will amount to more or less than 25% of the primary equity of Parent as of the
Effective Time (as defined in the Merger Agreement), ADM shall have the right to
acquire upon the terms set forth in the Equity Commitment Letter, a greater or
lesser number of shares of Parent such that its ownership interest will amount
to 25% of the primary equity of Parent as of the Effective Time.
Very truly yours,
DLJ MERCHANT BANKING III, INC.
By /s/ Ivy Dodes
----------------------------------------
Name: Ivy Dodes
Title: Principal
Accepted and agreed as of the
date first above written:
ARCHER-DANIELS-MIDLAND COMPANY
By /s/ D.J. Smith
--------------------------------------------
Name: D. J. Smith
Title: Vice President, Secretary
& General Counsel
BOOTH CREEK PARTNERS LIMITED III, LLLP
By /s/ Jeffrey Joyce
--------------------------------------------
Name: Jeffrey Joyce
Title: Executive Vice President
JEFFREY J. JOYCE
/s/ Jeffrey Joyce
--------------------------------------------
2
<PAGE>
EXHIBIT A
Stockholder Number of Shares
---------------- ----------------
Archer-Daniels-Midland Company 3,051,400
Booth Creek Partners Limited III, LLLP 1,822,463
Jeffrey J. Joyce 321,514
