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Exhibit (D)(3)
AGREEMENT AND PLAN OF MERGER
DATED AS OF
January __, 2001
AMONG
IBP, INC.,
TYSON FOODS, INC.
AND
LASSO ACQUISITION CORPORATION
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TABLE OF CONTENTS
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ARTICLE 1 DEFINITIONS............................................................................................2
Section 1.01. Definitions...............................................................................2
ARTICLE 2 THE OFFER AND THE EXCHANGE OFFER.......................................................................4
Section 2.01 The Offer.................................................................................4
Section 2.02 Company Actions...........................................................................8
Section 2.03 Company Board Representation; Section 14(f)..............................................10
Section 2.04. Adjustment of the Exchange Offer Ratio...................................................11
ARTICLE 3 THE MERGER............................................................................................12
Section 3.01. The Merger...............................................................................12
Section 3.02. Conversion of Shares.....................................................................12
Section 3.03. Surrender and Payment....................................................................13
Section 3.04. Stock Options............................................................................14
Section 3.05. Withholding Rights.......................................................................15
Section 3.06. Terminated Tender Offer..................................................................15
Section 3.07. Adjustment of Exchange Ratio.............................................................15
ARTICLE 4 THE SURVIVING CORPORATION.............................................................................15
Section 4.01. Certificate of Incorporation.............................................................15
Section 4.02. Bylaws...................................................................................15
Section 4.03. Directors and Officers...................................................................16
ARTICLE 5 REPRESENTATIONS AND WARRANTIES OF THE COMPANY.........................................................16
Section 5.01. Corporate Existence and Power............................................................16
Section 5.02. Corporate Authorization..................................................................16
Section 5.03. Governmental Authorization...............................................................16
Section 5.04. Non-Contravention........................................................................16
Section 5.05. Capitalization...........................................................................17
Section 5.06. Subsidiaries.............................................................................17
Section 5.07. SEC Filings..............................................................................18
Section 5.08. Financial Statements.....................................................................18
Section 5.09. Disclosure Documents.....................................................................19
Section 5.11. No Undisclosed Material Liabilities......................................................21
Section 5.12. Litigation...............................................................................21
Section 5.13. Taxes....................................................................................22
Section 5.14. ERISA....................................................................................23
Section 5.15. Labor Matters............................................................................25
Section 5.16. Compliance with Laws.....................................................................26
Section 5.17. Licenses and Permits.....................................................................26
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Section 5.18. Intellectual Property....................................................................26
Section 5.19. Environmental Matters....................................................................27
Section 5.20. Finders' Fees............................................................................28
Section 5.21. Inapplicability of Certain Restrictions..................................................28
Section 5.22. Rights Plan..............................................................................28
ARTICLE 6 REPRESENTATIONS AND WARRANTIES OF PARENT..............................................................29
Section 6.01. Corporate Existence And Power............................................................29
Section 6.02. Corporate Authorization..................................................................29
Section 6.03. Governmental Authorization...............................................................29
Section 6.04. Non-Contravention........................................................................29
Section 6.05. Capitalization...........................................................................30
Section 6.06. Parent Subsidiaries......................................................................30
Section 6.07. SEC Filings..............................................................................31
Section 6.09. Disclosure Documents.....................................................................31
Section 6.10. Absence of Certain Changes...............................................................32
Section 6.11. No Undisclosed Material Liabilities......................................................33
Section 6.12. Adequate Funds...........................................................................33
Section 6.13. Ownership of IBP Stock...................................................................34
Section 6.14. Finders' Fees............................................................................34
ARTICLE 7 COVENANTS OF THE COMPANY..............................................................................34
Section 7.01. Conduct of the Company...................................................................34
Section 7.02. Stockholder Meeting......................................................................36
Section 7.03. Access to Information....................................................................36
Section 7.04. Other Offers.............................................................................36
Section 7.05. Notices Of Certain Events................................................................38
Section 7.06. Tax Matters..............................................................................39
Section 7.07. Affiliates...............................................................................39
Section 7.08. Confidentiality..........................................................................39
Section 7.09. Other Actions............................................................................40
ARTICLE 8 COVENANTS OF PARENT...................................................................................40
Section 8.01. Parent Stockholder Meeting...............................................................40
Section 8.02. Confidentiality..........................................................................40
Section 8.03. Voting Of Shares.........................................................................40
Section 8.04. Director And Officer Liability...........................................................40
Section 8.05. Employee Matters.........................................................................40
Section 8.06. Obligations of Merger Co.................................................................41
Section 8.07. NYSE Listing.............................................................................41
Section 8.08. Acquisitions of Shares...................................................................41
Section 8.09. Notices of Certain Events................................................................41
Section 8.10. Reorganization Matters...................................................................41
Section 8.11. Information Relating to Offer............................................................41
Section 8.12. Conduct of Parent........................................................................42
Section 8.13. Voting Agreement.........................................................................42
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Section 8.14. Other Actions............................................................................42
ARTICLE 9 COVENANTS OF PARENT AND THE COMPANY..................................................................42
Section 9.01. Company Proxy Statement and Merger Form S-4.............................................42
Section 9.02. Certain Regulatory Issues...............................................................43
Section 9.03. Certain Filings.........................................................................43
Section 9.04. Public Announcements....................................................................44
Section 9.05. Further Assurances......................................................................44
ARTICLE 10 CONDITIONS TO THE MERGER.............................................................................44
Section 10.01. Conditions to the Obligations of Each Party.............................................44
Section 10.02. Conditions to the Obligation of the Company.............................................45
ARTICLE 11 TERMINATION..........................................................................................45
Section 11.01. Termination.............................................................................45
Section 11.02. Effect of Termination...................................................................46
Section 11.03. Parent Payment Event....................................................................47
ARTICLE 12 MISCELLANEOUS........................................................................................47
Section 12.01. Notices.................................................................................47
Section 12.02. Survival of Representations and Warranties..............................................48
Section 12.03. Amendments; No Waivers..................................................................48
Section 12.04. Expenses................................................................................49
Section 12.05. Successors and Assigns; Benefit.........................................................49
Section 12.06. Governing Law...........................................................................49
Section 12.07. Counterparts; Effectiveness.............................................................49
</TABLE>
Exhibit A.........Form of Affiliate's Agreement
Exhibit B.........Form of Voting Agreement
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<PAGE>
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER dated as of January __, 2001 among IBP,
inc., a Delaware corporation (the "Company"), Tyson Foods, Inc., a Delaware
corporation ("Parent"), and Lasso 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, (i) on December 12, 2000, Parent and Merger Co. commenced a
tender offer (such offer, including any amendments and changes thereto, the
"Offer") to acquire 50.1% (the "Maximum Amount") of the issued and outstanding
shares of Common Stock, par value $0.05 per share, of the Company ("Company
Common Stock") for $26.00 per share (such amount, or any greater amount per
share paid pursuant to the Offer, the "Per Share of Company Common Stock
Amount") net to the seller in cash and (ii) on December 12, 2000 Parent and
Merger Co. filed with the Securities and Exchange Commission (the "SEC") a
Tender Offer Statement on Form TO, (together with all amendments and supplements
thereto, the "Form TO") promulgated under the Securities Exchange Act of 1934,
as amended (such Act and the rules and regulations promulgated thereunder being
referred to herein as the "Exchange Act"), which Form TO included an offer to
purchase (the "Offer to Purchase");
WHEREAS, on December 22, 2000, the Company filed with the SEC a
Solicitation/Recommendation Statement on Schedule 14D-9 promulgated under the
Exchange Act (together with all amendments and supplements thereto, the
"Schedule 14D-9") containing the recommendation of the Board of Directors of the
Company;
WHEREAS, Parent and Merger Co. (i) on December 28, 2000, announced that
they were increasing the Per Share of Company Common Stock Amount to $27.00 net
to the seller in cash and (ii) on December 29, 2000, filed with the SEC an
amendment to the Form TO which incorporated into the Offer, among other things,
the Per Share of Company Common Stock Amount of $27.00;
WHEREAS, the Boards of Directors of Parent, Merger Co. and the Company
have each determined that it is advisable and in the best interests of their
respective stockholders to consummate, and have approved, the business
combination transaction provided for herein including (i) the Offer, (ii) an
offer to exchange (the "Exchange Offer") for each share of Company Common Stock
not tendered in the Offer the number of shares of Class A Common Stock, par
value $0.10 per share, of Parent ("Parent Common Stock") equal to the Exchange
Offer Ratio (as defined in Section 2.01(c)), and (iii) the Merger (as defined in
Section 3.01); and
WHEREAS, Parent and the Company desire to make certain representations,
warranties, covenants and agreements in connection with the transactions
contemplated by this Agreement and also to prescribe certain conditions to the
consummation of such transactions;
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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:
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TERM SECTION
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Acquisition Proposal 7.04
Amended Offer to Purchase 2.01(a)
Average Exchange Offer Price 2.01(c)
Average Parent Common Stock Price 3.02
Balance Sheet 5.08
Balance Sheet Date 5.08
Board of Directors 2.02(a)
Class B Common Stock 6.05
Code 5.14(a)
Company first paragraph
Company Common Stock recitals
Company Disclosure Documents 5.09(a)
Company Option 3.04(a)
Company Proxy Statement 5.09(a)
Company Securities 5.05
Company Stockholder Meeting 7.02
Company 10-K 5.07(a)
Company 10-Qs 5.07(a)
Confidentiality Agreement 8.02
Control Date 2.03
Delaware Law 2.02(a)
Effective Time 3.01(b)
Employee Plans 5.14(a)
Environmental Laws 5.19(d)
Environmental Permits 5.19(d)
ERISA 5.14(a)
ERISA Affiliate 5.14(a)
Exchange Act recitals
Exchange Agent 3.03(a)
Exchange Form S-4 2.01(b)
Exchange Form TO 2.01(b)
Exchange Offer recitals
Exchange Offer Documents 2.01(b)
Exchange Offer Ratio 2.01(c)
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TERM SECTION
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Exchange Ratio 3.02(c)
Exchange Schedule 14D-9 2.02(c)
Failed Tender Offer 3.06
Final Expiration Date 2.01(d)
Form TO recitals
Form TO/A 2.01(a)
Hazardous Substances 5.19
HSR Act 5.03
Independent Directors 2.03(c)
Intellectual Property Right 5.18
International Plan 5.14(i)
Lien 5.04
Material Adverse Effect 5.01
Maximum Amount recitals
Merger 3.01(a)
Merger Co. first paragraph
Merger Consideration 3.02(c)
Merger Form S-4 9.01
Minimum Condition 2.01(a)
Multiemployer Plan 5.14(b)
NYSE 3.02
Offer recitals
Offer Documents 2.01(a)
Offer to Exchange 2.01(b)
Offer to Purchase recitals
Parent first paragraph
Parent Balance Sheet 6.08
Parent Balance Sheet Date 6.08
Parent Common Stock recitals
Parent Disclosure Documents 6.09(a)
Parent Material Adverse Effect 6.01
Parent Option 3.04(a)
Parent Payment Event 11.03(b)
Parent Securities 6.05
Parent Subsidiary 6.06(a)
Parent Subsidiary Securities 6.06(b)
Parent 10-K 6.07
Payment Date 2.01(a)
Payment Event 7.04(b)
Permits 5.17
Per Share of Company Common Stock Amount recitals
Person 3.03(c) and 7.04(a)
Pre-Closing Tax Period 5.13(a)
Preferred Stock 5.05
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TERM SECTION
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Preliminary Prospectus 2.01(b)
Rawhide Merger Agreement 2.02(a)
Reimbursement Payment 7.04(b)
Representatives 7.03
Returns 5.13(a)
Schedule 14D-9 recitals
Schedule 14D-9/A 2.02(b)
SEC recitals
Securities Act 5.07(c)
Special Committee 2.02(a)
Straddle Period 5.13(a)
Stockholders recitals
Subsidiary 5.06(a)
Subsidiary Securities 5.06(b)
Superior Proposal 7.04
Surviving Corporation 3.01(a)
Tax 5.13(b)
Tax Asset 5.13(a)
368(a) Reorganization 7.06(c)
Title IV Plan 5.14(b)
</TABLE>
ARTICLE 2
THE OFFER AND THE EXCHANGE OFFER
Section 2.01 The Offer. (a) Provided that this Agreement shall not have
been terminated in accordance with Section 11.01 and none of the events set
forth in Annex I hereto shall have occurred and be continuing, as promptly as
practicable, but in no event later than one business day, after the date hereof,
Parent shall cause Merger Co. to, and Merger Co. shall, file with the SEC, to
the extent required by the Exchange Act, an amended Form TO (the "Form TO/A"),
an amended Offer to Purchase (the "Amended Offer to Purchase") and, if
necessary, the related letter of transmittal and any related summary
advertisement (the Form TO/A, the Amended Offer to Purchase and such other
documents, together with all amendments and supplements thereto, the "Offer
Documents") to reflect, among other things, an increase in the per share price
to be paid in the Offer to $27.00 and, if necessary, an extension of the
currently scheduled expiration date to allow the Offer to remain open for ten
business days from the date of such increase. The obligation of Merger Co. to
consummate the Offer and to accept for payment and to pay for shares of Company
Common Stock tendered pursuant to the Offer shall be subject only to (i) the
condition that there shall be validly tendered in accordance with the terms of
the Offer, prior to the expiration date of the Offer and not withdrawn, a number
of shares that, together with the shares of Company Common Stock then owned by
Parent and/or Merger Co., represents 50.1% of the shares of Company Common Stock
outstanding (the "Minimum Condition") and (ii) the other conditions set forth in
Annex I hereto. Merger Co. expressly reserves the right to waive any such
condition (other than the Minimum Condition, which shall not be waived without
the prior
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written consent of the Company) or the condition relating to the expiration of
the HSR Act and to increase the Per Share of Company Common Stock Amount.
Notwithstanding the foregoing, no change may be made which (i) decreases the Per
Share of Company Common Stock Amount, (ii) changes the form of consideration to
be paid in the Offer, (iii) increases the Maximum Amount or the Minimum
Condition, (iv) reduces the number of shares of Company Common Stock sought to
be purchased in the Offer, (v) imposes conditions to the Offer in addition to
those set forth in Annex I hereto, (vi) except as specifically provided for in
this Section 2.01(a), extends the expiration date of the Offer or (vii)
otherwise alters or amends any term of the Offer in any manner adverse to the
holders of shares of Company Common Stock; provided, however, that the Offer may
be extended for any period to the extent required by law or by any rule,
regulation, interpretation or position of the SEC or the staff thereof
applicable to the Offer. Parent and Merger Co. shall comply with the obligations
respecting prompt payment and announcement under the Exchange Act, and, without
limiting the generality of the foregoing, subject to the terms and conditions of
this Agreement, including but not limited to the conditions of the Offer, Merger
Co. shall and Parent shall cause Merger Co. to, accept for payment and pay for
shares of Company Common Stock tendered pursuant to the Offer as soon as
practicable after expiration thereof. Unless this Agreement has been terminated
pursuant to Section 11.01 and subject to Section 2.01(d), Merger Co. shall
extend the Offer from time to time in the event that, at a then-scheduled
expiration date, all of the conditions to the Offer have not been satisfied or
waived as permitted pursuant to this Agreement, each such extension not to
exceed (unless otherwise consented to in writing by the Company) the lesser of
10 additional business days or such fewer number of days that Merger Co.
reasonably believes are necessary to cause the conditions to the Offer to be
satisfied. Except as provided in Section 2.01(d) or 2.01(e), Merger Co. shall
not terminate the Offer without purchasing shares of Company Common Stock
pursuant to the Offer. If at the expiration of the Offer a number of shares of
Company Common Stock has been validly tendered and not withdrawn that, together
with the shares of Company Common Stock then owned by Parent and/or Merger Co.,
exceeds the Maximum Amount, the number of shares of Company Common Stock to be
purchased by Merger Co. pursuant to the Offer shall be prorated in accordance
with Rule 14d-8 promulgated under the Exchange Act, so that the number of shares
of Company Common Stock purchased by Merger Co. pursuant to the Offer, together
with the shares of Company Common Stock then owned by Parent and Merger Co.,
will represent 50.1% of the shares of Company Common Stock outstanding.
(b) Provided that this Agreement shall not have been terminated in
accordance with Section 11.01 and none of the events set forth in Annex II
hereto shall have occurred and be continuing, as promptly as practicable after
the date hereof, Parent shall cause Merger Co. to, and Merger Co. shall (i)
commence the Exchange Offer pursuant to which Merger Co. shall offer to issue a
number of duly authorized, validly issued, fully paid and non-assessable shares
of Parent Common Stock equal to the Exchange Offer Ratio (as defined below) for
each then issued and outstanding share of Company Common Stock (other than
shares of Company Common Stock then owned by Parent or Merger Co.), (ii) file
with the SEC, to the extent required by the Exchange Act, a Form TO (the
"Exchange Form TO"), an Offer to Exchange (the "Offer to Exchange") and the
related letter of transmittal and any related summary advertisement (the
Exchange Form TO, the Offer to Exchange and such other documents, together with
all amendments and supplements thereto, the "Exchange Offer Documents") and
(iii) file with the
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SEC a Registration Statement on Form S-4 (the "Exchange Form S-4) to register
under the Securities Act the securities to be issued in the Exchange Offer. The
obligation of Merger Co. to consummate the Exchange Offer and to issue shares of
Parent Common Stock in exchange for shares of Company Common Stock tendered
pursuant to the Exchange Offer shall be subject only to the conditions set forth
in Annex II hereto. Merger Co. expressly reserves the right to waive any such
condition and to increase the Exchange Offer Ratio. Notwithstanding the
foregoing, no change may be made which (i) decreases, or would have the effect
of decreasing, the Exchange Offer Ratio, (ii) changes the form of consideration
to be paid in the Exchange Offer, (iii) reduces the number of shares of Company
Common Stock sought to be purchased in the Exchange Offer, (iv) imposes
conditions to the Exchange Offer in addition to those set forth in Annex II
hereto, (v) extends the expiration date of the Exchange Offer or (vi) otherwise
alters or amends any term of the Exchange Offer in any manner adverse to the
holders of shares of Company Common Stock; provided, however, that the Exchange
Offer may be extended for any period to the extent required by law or by any
rule, regulation, interpretation or position of the SEC or the staff thereof
applicable to the Exchange Offer. Parent and Merger Co. shall comply with the
obligations respecting prompt delivery of shares of Parent Common Stock and
announcement under the Exchange Act, and, without limiting the generality of the
foregoing, subject to the terms and conditions of this Agreement, including but
not limited to the conditions of the Exchange Offer, Merger Co. shall and Parent
shall cause Merger Co. to, accept for exchange and issue shares of Parent Common
Stock in exchange for shares of Company Common Stock tendered pursuant to the
Exchange Offer as soon as practicable after expiration thereof. Unless this
Agreement has been terminated pursuant to Section 11.01 and subject to Section
2.01(d), Merger Co. shall extend the Exchange Offer from time to time in the
event that, at a then-scheduled expiration date, all of the conditions to the
Exchange Offer have not been satisfied or waived as permitted pursuant to this
Agreement, each such extension not to exceed (unless otherwise consented to in
writing by the Company) the lesser of 10 additional business days or such fewer
number of days that Merger Co. reasonably believes are necessary to cause the
conditions to the Offer to be satisfied. Except as provided in Section 2.01(d)
or 2.01(e), Merger Co. shall not terminate the Exchange Offer without accepting
shares of Company Common Stock and issuing shares of Parent Common Stock
pursuant to the Exchange Offer. Notwithstanding anything to the contrary set
forth herein, no certificates representing fractional shares of Parent Common
Stock shall be issued in connection with the Exchange Offer, and in lieu thereof
each tendering stockholder who would otherwise be entitled to a fractional share
of Parent Common Stock in the Exchange Offer will be paid an amount in cash
equal to the product obtained by multiplying (A) the fractional share interest
to which such holder would otherwise be entitled by (B) the Average Exchange
Offer Price (as defined below).
(c) For purposes of this Section 2.01, "Exchange Offer Ratio" means the
number of shares of Parent Common Stock determined as set forth below:
(i) If the Average Exchange Offer Price is equal to or greater
than $15.40, the Exchange Ratio shall be 1.753 shares of
Parent Common Stock;
(ii) If the Average Exchange Offer Price is less than $15.40 and
greater than $12.60, the Exchange Ratio shall be determined by
dividing $27.00 by the Average Price; and
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(iii) If the Average Exchange Offer Price is equal to or less than
$12.60, the Exchange Ratio shall be 2.143 shares of Parent
Common Stock.
For purposes of this Section 2.01, "Average Exchange Offer Price" means the
average of the closing price per share of Parent Common Stock on the New York
Stock Exchange, Inc. (the "NYSE") at the end of the regular session as reported
on the Consolidated Tape, network A for the fifteen consecutive trading days
ending on the second trading day immediately preceding the expiration date of
the Exchange Offer.
(d) If, on February 28, 2001 (the "Final Expiration Date"), Merger Co.
has not consummated the Offer in accordance with its terms, Merger Co. shall
thereupon terminate the Offer without the acceptance of any shares of Company
Common Stock previously tendered. If, at the Final Expiration Date, the Minimum
Condition has not been satisfied, Merger Co. shall, unless Parent and the
Company otherwise agree, terminate the Offer, and the parties shall, subject to
the terms and conditions hereof, seek to consummate the Merger.
(e) As soon as practicable following the filing of the Form TO/A with
the SEC, Merger Co. shall take such steps as are reasonably necessary to cause
the Amended Offer to Purchase to be disseminated to the holders of shares of
Company Common Stock as and to the extent required by applicable federal
securities laws. Parent, Merger Co. and the Company shall correct promptly any
information provided by any of them for use in the Offer Documents which shall
have become false or misleading, and Parent and Merger Co. shall take all
reasonable steps necessary to cause the Form TO/A as so corrected to be filed
with the SEC and the other Offer Documents as so corrected to be disseminated to
holders of shares of Company Common Stock, 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 the Offer Documents prior
to their being filed with the SEC, and Parent and Merger Co. will provide the
Company and its counsel in writing with any comments that Parent or Merger Co.
receives from the SEC or its staff with respect to the Offer Documents promptly
after receipt of any such comments.
(f) In the event that this Agreement has been terminated pursuant to
Section 11.01, Merger Co. shall, and Parent shall cause Merger Co. to, promptly
terminate the Offer and the Exchange Offer without accepting any shares of
Company Common Stock for payment or exchange.
(g) Parent shall provide or cause to be provided to Merger Co. on a
timely basis the funds and shares of Parent Common Stock necessary to accept for
payment, and pay for, any shares of Company Common Stock that Merger Co. becomes
obligated to accept for payment, and pay for, pursuant to the Offer and the
Exchange Offer.
(h) Parent and Merger Co. shall promptly prepare and file with the SEC
the Exchange Form S-4 to register the offer and sale of shares of Parent Company
Stock in the Exchange Offer. The Exchange Form S-4 will include a preliminary
prospectus containing the information required under Rule 14d-4(b) promulgated
under the Exchange Act (the "Preliminary Prospectus"). As soon as practicable on
the date of commencement of the Exchange Offer, Parent and Merger Co. shall (i)
file with the SEC the Exchange Form TO with respect to the Exchange Offer which
will
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contain or incorporate by reference all or part of the Preliminary Prospectus
and (ii) cause the Exchange Offer Documents to be disseminated to holders of
shares of Company Common Stock. Parent and Merger Co. agree that they shall
cause the Exchange Form S-4, the Exchange Form TO, the Offer to Exchange and all
amendments or supplements thereto to comply in all material respects with the
Exchange Act, the Securities Act and the rules and regulations thereunder and
other applicable laws. Each of Parent, Merger Co. and the Company agrees to
correct promptly any information provided by it for use in the Offer Documents
if and to the extent that such information shall have become false or misleading
in any material respect, and Parent and Merger Co. further agree to take all
steps necessary to cause the Exchange Offer Documents as so corrected to be
filed with the SEC and the other Exchange Offer Documents as so corrected to be
disseminated to holders of Shares, in each case as and to the extent required by
applicable federal securities laws. The Company, Parent and Merger Co. shall
cooperate with each other in the preparation of the Exchange Form S-4, the
Exchange Form TO and any amendment or supplement thereto, and Parent shall
notify the Company of the receipt of any comments of the SEC with respect to the
Exchange Form S-4 and the Exchange Form TO and of any requests by the SEC for
any amendment or supplement thereto or for additional information, and shall
provide promptly copies of all correspondence between Parent or any of its
Representatives and the SEC with respect to the Exchange Form S-4 and the
Exchange Form TO. Parent shall give the Company and its counsel the opportunity
to review the Exchange Form S-4 and the Exchange Form TO and all responses to
requests for additional information by and replies to comments of the SEC before
their being filed with, or sent to, the SEC. Each of Parent and Merger Co.
agrees to use its best efforts, after consultation with the Company, to respond
promptly to all such comments of and requests by the SEC. Each of Parent and
Merger Co. shall use its reasonable best efforts to cause the Exchange Form S-4
to be declared effective by the SEC as promptly as practicable. Parent shall
promptly take any action (other than qualifying as a foreign corporation or
taking any action which would subject it to service of process in any
jurisdiction where Parent is not now so qualified or subject) required to be
taken under foreign or state securities or Blue Sky laws in connection with the
issuance of Parent Common Stock in the Exchange Offer. Parent will advise the
Company, promptly after it receives notice thereof, of (i) the time when the
Exchange Form S-4 becomes effective, (ii) the issuance of any stop order with
respect to the Exchange Form S-4, (iii) the suspension of the qualification of
Parent Common Stock for offering or sale in any jurisdiction, or (iv) any
request by the SEC for an amendment of the Exchange Form S-4 or comments thereon
and responses thereto or requests by the SEC for additional information.
Section 2.02 Company Actions. (a) The Company hereby approves and
consents to the Offer and the Exchange Offer and represents that (i) the Board
of Directors of the Company and acting on the unanimous recommendation of a
special committee of the Board of Directors of the Company comprised of all
members of the Board of Directors other than Messrs. Bond, Chalsty, Lemon and
Peterson (the "Special Committee"), at a meeting duly called and held, has, with
Messrs. Bond, Chalsty, Lemon and Peterson abstaining, unanimously (A) determined
that this Agreement and the transactions contemplated hereby, including the
Offer, the Exchange Offer and the Merger, taken together, are fair to and in the
best interests of the holders of shares of Company Common Stock, (B) approved
this Agreement and the transactions contemplated hereby, including the Offer,
the Exchange Offer and the Merger, which approval satisfies in full the
requirements of Section 203 of the General Corporation Law of the State of
Delaware (the
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"Delaware Law") with respect to the transactions contemplated hereby, (C)
resolved to recommend that the stockholders of the Company accept the Offer and
the Exchange Offer, tender their shares of Company Common Stock thereunder to
Merger Co. and, if required by applicable law in order to consummate the Merger,
approve and adopt this Agreement and the transactions contemplated hereby,
provided that, subject to Section 7.04, such recommendation may be withdrawn,
modified or amended if such recommendation would be reasonably likely to be
inconsistent with its fiduciary duties under the applicable law as determined by
the Board of Directors of the Company in good faith after consultation with its
legal advisors and (ii) the Company has provided the applicable notice of
termination to Rawhide Holdings Corporation required by Section 10.01(e) of the
Agreement and Plan of Merger, dated as of October 1, 2000 among the Company,
Rawhide Holdings Corporation and Rawhide Acquisition Corporation ("Rawhide
Merger Agreement"). The Company hereby consents to the inclusion in the Offer
Documents and the Exchange Offer Documents of the recommendation of the Board
described in the immediately preceding sentence. The Company has been advised by
each of its directors and executive officers that they intend either to tender
all shares of Company Common Stock beneficially owned by them to Merger Co.
pursuant to the Offer and the Exchange Offer or to vote such shares of Company
Common Stock in favor of the approval and adoption of the transactions
contemplated hereby. 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 Offer, the Exchange Offer and the Merger is
fair to the holders of shares of Company Common Stock, from a financial point of
view.
(b) On the date the Offer Documents are filed with the SEC in
accordance with Section 2.01(a), the Company shall file with the SEC an amended
Schedule 14D-9 (the "Schedule 14D-9/A") containing the recommendation of the
Board of Directors of the Company described in Section 2.02(a), and shall take
such steps as are reasonably necessary to cause the Schedule 14D-9/A to be
disseminated to the holders of shares of Company Common Stock as and to the
extent required by applicable federal securities laws. The Company, Parent and
Merger Co. shall correct promptly any information provided by any of them for
use in the Schedule 14D-9/A which shall have become false or misleading, and the
Company shall take all reasonable steps necessary to cause the Schedule 14D-9/A
as so corrected to be filed with the SEC and disseminated to holders of shares
of Company Common Stock, in each case as and to the extent required by
applicable federal securities laws. Parent and its counsel shall be given an
opportunity to review and comment on the Schedule 14D-9/A prior to its being
filed with the SEC, and the Company will provide Parent and its counsel in
writing with any comments that the Company receives from the SEC or its staff
with respect to the Schedule 14D-9/A promptly after receipt of any such
comments.
(c) On the date the Exchange Offer Documents are filed with the SEC,
the Company shall file with the SEC a Solicitation/Recommendation Statement on
Schedule 14D-9 promulgated under the Exchange Act (together with all amendments
and supplements thereto, the "Exchange Schedule 14D-9") containing the
recommendation of the Board of Directors of the Company described in Section
2.02(a), and shall take such steps as are necessary to cause the Exchange
Schedule 14D-9 to be disseminated to the holders of shares of Company Common
Stock as and to the extent required by applicable federal securities laws. The
Company, Parent and Merger Co.
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shall correct promptly any information provided by any of them for use in the
Exchange Schedule 14D-9 which shall have become false or misleading, and the
Company shall take all steps necessary to cause the Exchange Schedule 14D-9 as
so corrected to be filed with the SEC and disseminated to holders of shares of
Company Common Stock, in each case as and to the extent required by applicable
federal securities laws. Parent and its counsel shall be given an opportunity to
review and comment on the Exchange Schedule 14D-9 prior to its being filed with
the SEC, and the Company will provide Parent and its counsel in writing with any
comments that the Company receives from the SEC or its staff with respect to the
Exchange Schedule 14D-9 promptly after receipt of any such comments.
(d) In connection with the Offer and the Exchange Offer, the Company
shall use its reasonable best efforts to cause its transfer agent to furnish
Merger Co. promptly with mailing labels containing the names and addresses of
all record holders of shares of Company Common Stock and with security position
listings of shares of Company Common Stock held in stock depositories, each as
of a recent date, together with all other available listings and computer files
containing names, addresses and security position listings of record holders and
beneficial owners of shares of Company Common Stock. The Company shall furnish
Merger Co. with such additional information, including, without limitation,
updated listings and files of stockholders, mailing labels and security position
listings and such other assistance as Parent, Merger Co. or their
Representatives may reasonably request in communicating the Offer and the
Exchange Offer to record and beneficial holders of shares of Company Common
Stock. Subject to the requirements of applicable law, and except for such steps
as are necessary to disseminate the Offer Documents, the Exchange Offer
Documents and any other documents necessary to consummate the Offer, the
Exchange Offer or the Merger, Parent and Merger Co. shall hold in confidence the
information contained in such labels, listings and files, shall use such
information only in connection with the Offer, the Exchange Offer and the
Merger, and, if this Agreement shall be terminated in accordance with Section
11.01, shall deliver to the Company all copies of, and any extracts or summaries
from, such information then in their possession or control.
(e) In connection with the Offer and the Exchange Offer, the Company
shall, and shall use its reasonable best efforts to, cause its Representatives
to cooperate with Parent and Merger Co. in connection with the Offer and the
Exchange Offer, including, without limitation, to furnish Parent with such
information (which will be treated and held in confidence by Parent),
documentation and assistance as Parent or its Representatives may reasonably
request in connection with the Offer and the Exchange Offer.
Section 2.03 Company Board Representation; Section 14(f). (a) Subject
to compliance with Delaware Law, the Company's Certificate of Incorporation and
other applicable law, promptly upon the payment by Merger Co. for shares of
Company Common Stock purchased pursuant to the Offer representing, together with
shares of Company Stock previously owned by Parent, at least 50.1% of the shares
of Company Common Stock outstanding, and from time to time thereafter, the
Company shall, upon request of Parent, promptly use its reasonable best efforts
to take all actions necessary to cause a majority of the directors of the
Company to consist of Parent's designees, including by accepting the
resignations of those incumbent directors designated by the Company or
increasing the size of the Board of Directors and causing Parent's designees to
be elected. The date on which Parent's designees constitute at least a majority
of the Company's Board of Directors is herein referred to as the "Control Date."
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(b) The Company's obligations to appoint Parent's designees to the
Board of Directors of the Company shall be subject to Section 14(f) of the
Exchange Act and Rule 14f-1 promulgated thereunder, if applicable. The Company
shall promptly take all actions required pursuant to such Section and Rule in
order to fulfill its obligations under this Section, and shall include in the
Schedule 14D-9/A such information with respect to the Company and its officers
and directors as is required under such Section and Rule to fulfill such
obligations. Parent or Merger Co. shall supply to the Company and be solely
responsible for any information with respect to either of them and their
designees, officers, directors and affiliates required by such Section 14(f) and
Rule 14f-1.
(c) Following the election of designees of Parent pursuant to this
Section and prior to the Effective Time, any amendment of this Agreement or the
Certificate of Incorporation or Bylaws of the Company, any termination of this
Agreement by the Company, any consent given by the Company hereunder, any
extension by the Company of the time for the performance of any of the
obligations or other acts of Parent or Merger Co., waiver of any of the
Company's rights hereunder or any other action by the Company in connection with
or relating to the transactions contemplated hereby shall require the
concurrence of a majority of the directors of the Company then in office who (i)
neither were designated by Parent nor are employees of the Company or any of its
Subsidiaries or, if there be just one such director, the concurrence of such
director or (ii) were a member of the Special Committee (the "Independent
Directors"). If the number of Independent Directors shall be reduced below two
for any reason whatsoever, the remaining Independent Director shall designate a
person to fill such vacancy who shall be deemed to be an Independent Director
for purposes of this Agreement or, if no Independent Directors then remain, the
other directors shall designate two persons to fill such vacancies who shall not
be officers or affiliates of the Company or any of its Subsidiaries, or officers
or affiliates of Parent or any of its Subsidiaries, and such persons shall be
deemed to be Independent Directors for purposes of this Agreement. The
Independent Directors shall have the authority to retain such counsel and other
advisors at the expense of the Company as are reasonably appropriate to the
exercise of their duties in connection with this Agreement, subject to approval
by the Company of the terms of such retention, which approval shall not be
unreasonably withheld. In addition, the Independent Directors shall have the
authority to institute any action, on behalf of the Company, to enforce
performance of this Agreement.
Section 2.04. Adjustment of the Exchange Offer Ratio. In the event
Parent changes or establishes a record date for changing the number of shares of
Parent Common Stock issued and outstanding during or after the determination of
the Exchange Offer Ratio pursuant to Section 2.01(c) and prior to the expiration
date of the Exchange Offer, as a result of a stock split, stock dividend,
recapitalization, subdivision, reclassification, combination or similar
transaction with respect to the outstanding shares of Parent Common Stock and
the record date therefor shall be prior to the expiration date of the Exchange
Offer, the Exchange Offer Ratio, and any other calculations based on or relating
to shares of Parent Common Stock shall be appropriately adjusted to reflect such
stock split, stock dividend, recapitalization, subdivision, reclassification,
combination or similar transaction.
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ARTICLE 3
THE MERGER
Section 3.01. The Merger. (a) At the Effective Time (as defined below),
the Company shall be merged with (the "Merger") and into Merger Co. in
accordance with Section 251 or Section 253 of Delaware Law, as applicable,
whereupon the separate existence of the Company shall cease, and Merger Co.
shall be the surviving corporation and wholly-owned subsidiary of Parent (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").
(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.
Section 3.02. Conversion of Shares. At the Effective Time:
(a) each share of Company Common Stock 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. outstanding immediately prior to the Effective Time shall be
converted into and become one share of common stock, par value $0.05
per share, of the Surviving Corporation with the same rights, powers
and privileges as the shares so converted; and
(c) each share of Company Common Stock outstanding immediately
prior to the Effective Time shall, except as otherwise provided in
Section 3.02(a), be converted into the right to receive from Parent a
number of shares (the "Merger Consideration") of Parent Common Stock
determined as set forth below (the "Exchange Ratio"):
(i) If the Average Parent Common Stock Price is equal to
or greater than $15.40, the Exchange Ratio shall be
1.753 shares of Parent Common Stock;
(ii) If the Average Parent Common Stock Price is less than
$15.40 and greater than $12.60, the Exchange Ratio
shall be determined by dividing $27.00 by the Average
Parent Common Stock Price; and
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(iii) If the Average Parent Common Stock Price is equal to
or less than $12.60 the Exchange Ratio shall be 2.143
shares of Parent Common Stock.
For purposes of this Section 3.02, "Average Parent Common Stock Price" means the
average of the closing price per share of Parent Common Stock on the New York
Stock Exchange, Inc. (the "NYSE") at the end of the regular session as reported
on the Consolidated Tape, Network A for the fifteen consecutive trading days
ending on the fifth trading day immediately preceding the Effective Time.
Section 3.03. Surrender and Payment. (a) Prior to the Effective Time,
Parent shall appoint an agent reasonably acceptable to the Company (the
"Exchange Agent") for the purpose of exchanging certificates representing shares
of Company Common Stock 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 delivered in
respect of the shares of Company Common Stock. Promptly after the Effective
Time, the Surviving Corporation will send, or will cause the Exchange Agent to
send, to each holder of shares of Company Common Stock 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 of Company Common Stock
to the Exchange Agent).
(b) Each holder of shares of Company Common Stock 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 of
Company Common Stock, together with a duly executed and properly completed
letter of transmittal covering such shares of Company Common Stock, will be
entitled to receive the Merger Consideration in exchange for such shares of
Company Common Stock. Until so surrendered, each such certificate shall, after
the Effective Time, represent for all purposes, only the right to receive such
Merger Consideration.
(c) If any portion of the Merger Consideration is to be delivered to a
Person other than the registered holder of the shares of Company Common Stock
represented by the certificate or certificates surrendered in exchange therefor,
it shall be a condition to such delivery 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 delivery shall pay to the Exchange
Agent any transfer or other taxes required as a result of such delivery to a
Person other than the registered holder of such shares of Company Common Stock
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 of Company Common Stock. If, after the Effective Time,
certificates representing shares of Company Common Stock 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 3.
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(e) Any portion of the Merger Consideration made available to the
Exchange Agent pursuant to Section 3.03(a) that remains unclaimed by the holders
of shares of Company Common Stock 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 of Company Common Stock for the Merger Consideration in
accordance with this Section prior to that time shall thereafter look only to
the Surviving Corporation for delivery of the Merger Consideration in respect of
his shares of Company Common Stock. Notwithstanding the foregoing, the Surviving
Corporation shall not be liable to any holder of shares of Company Common Stock
for any amount paid to a public official pursuant to applicable abandoned
property laws. Any shares of Parent Common Stock or amounts remaining unclaimed
by holders of shares of Company Common Stock 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.
Section 3.04. Stock Options. (a) At or immediately prior to the
Effective Time, each employee stock option or director stock option to purchase
Shares outstanding under any Company stock option plans, whether or not vested
or exercisable (each, a "Company Option") shall, by virtue of the Merger and
without any further action on the part of any holder thereof, be assumed by
Parent and deemed to constitute an option (each, a "Parent Option") to acquire,
on the same terms and conditions as were applicable under such Company Option
(subject to Section 3.04(b)), the same number of shares of Parent Common Stock
as the holder of such Company Option would have been entitled to receive
pursuant to Section 3.02(c) of this Agreement had such holder exercised such
Company Option in full immediately prior to the Effective Time (rounded to the
nearest whole number), at a price per share (rounded down to the nearest whole
cent) equal to (x) the aggregate exercise price for the share of Company Common
Stock otherwise purchasable pursuant to such Company Option divided by (y) the
number of whole shares of Parent Common Stock purchasable pursuant to the Parent
Option in accordance with the foregoing. The other terms of each such Company
Option, and the plans under which they were issued, shall continue to apply in
accordance with their terms. Notwithstanding the foregoing, Parent shall not
assume any particular Company Option if the terms of that Company Option contain
a cash-out right in favor of the optionee that is triggered by the transactions
contemplated by this Agreement and the optionee refuses to waive such cash-out
right in a manner reasonably satisfactory to Parent. Instead, each such optionee
shall be paid a cash amount in accordance with the terms of the governing plan
document in exchange for the cancellation of said Company Option.
(b) Prior to the Effective Time, the Company shall use its reasonable
best efforts to (i) obtain any consents from holders of Company Options and (ii)
make any amendments to the terms of such Company Options or Company stock option
plans that, in the case of either clauses (i) or (ii), are necessary or
appropriate to give effect to the transactions contemplated by Section 3.04(a);
provided, however, that lack of consent of any holder of a Company Option shall
in no way affect the obligations of the parties to consummate the Merger.
(c) At or prior to the Effective Time, Parent shall take all corporate
action necessary to reserve for issuance a sufficient number of shares of Parent
Common Stock for delivery upon
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exercise of the Parent Options. At or prior to the Effective Time, Parent shall
file a registration statement on Form S-8, with respect to the shares of Parent
Common Stock subject to such Parent Options and shall use commercially
reasonable efforts to maintain the effectiveness of such registration statement
(and maintain the current status of the prospectus or prospectuses contained
therein) for so long as such Parent Options remaining outstanding. With respect
to those individuals who subsequent to the Merger will be subject to the
reporting requirements under Section 16(a) of the Exchange Act, Parent shall
administer the Company stock option plans in a manner consistent with the
exemptions provided by Rule 16(b)(3) promulgated under the Exchange Act.
Section 3.05. Withholding Rights. Each of the Surviving Corporation and
Parent shall be entitled to deduct and withhold from the consideration otherwise
deliverable to any Person pursuant to this Article 3 such amount as it is
required to deduct and withhold with respect to the making of such delivery
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 holder of the shares of Company Common Stock in respect of which the
Surviving Corporation or Parent made such deduction and withholding.
Section 3.06. Terminated Tender Offer. In the event the Offer is
terminated pursuant to Section 2.01(d) ("Terminated Tender Offer") the parties
hereto shall complete the Merger consistent with the terms of this Agreement as
amended by the terms and provisions contained in Annex III, and this Agreement
shall be amended to incorporate the terms contained therein.
Section 3.07. Adjustment of Exchange Ratio. In the event Parent changes
or establishes a record date for changing the number of shares of Parent Common
Stock issued and outstanding during or after the determination of the Exchange
Ratio pursuant to Section 3.02(c) and prior to the Effective Time as a result of
a stock split, stock dividend, recapitalization, subdivision, reclassification,
combination or similar transaction with respect to the outstanding Parent Common
Stock and the record date therefor shall be prior to the Effective Time, the
Exchange Ratio, and any other calculation based on or relating to shares of
Parent Common Stock shall be appropriately adjusted to reflect such stock split,
stock dividend, recapitalization, subdivision, reclassification, combination or
similar transaction.
ARTICLE 4
THE SURVIVING CORPORATION
Section 4.01. Certificate of Incorporation. The certificate of
incorporation of Merger Co. in effect at the Effective Time shall be the
certificate of incorporation of the Surviving Corporation until amended in
accordance with applicable law.
Section 4.02. Bylaws. The bylaws of Merger Co. in effect at the
Effective Time shall be the bylaws of the Surviving Corporation until amended in
accordance with applicable law.
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Section 4.03. 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 5
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 5.01. 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 delivered to Parent true and complete
copies of the Company's certificate of incorporation and bylaws as currently in
effect.
Section 5.02. 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 (which vote will not be
required if Merger Co. acquires at least 90% of the issued and outstanding
shares of Company Common Stock in the Offer and the Exchange Offer), have been
duly authorized by all necessary corporate and stockholder action under the
Company's constituent documents and Delaware Law. This Agreement constitutes a
valid and binding agreement of the Company.
Section 5.03. 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
Exchange Act.
Section 5.04. Non-Contravention. Except as set forth in Schedule 5.04,
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
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with the certificate of incorporation or bylaws of the Company, (b) assuming
compliance with the matters referred to in Section 5.03, 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 material 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 (b) and
(d) of this Section 5.04, 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 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. The Rawhide Merger Agreement has been
terminated in accordance with its terms, and the Company has paid $_____ to
Rawhide Holdings Corporation which represents all amounts required to be paid by
the Company under the Rawhide Merger Agreement and the Company has no other
liabilities or obligations thereunder.
Section 5.05. Capitalization. The authorized capital stock of the
Company consists of 200,000,000 shares of Company 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 December 28, 2000, there were outstanding
[___________] shares of Common Stock and no shares of Preferred Stock. As of the
close of business on December 28, 2000, there were outstanding stock options to
purchase an aggregate of [_________] shares of Company Common Stock (of which
options to purchase an aggregate of [_________] shares of Company Common Stock
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 5.05 and this Section and except for changes
since December 28, 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 (a), (b) and (c) of this Section 5.05 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 5.06. 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
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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 5.06.
(b) Except as set forth in Schedule 5.06, 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 (i) and (ii) of this Section 5.06(b) 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 5.07. SEC Filings. (a) The Company has delivered or made
available 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 September 23, 2000, its quarterly report on
Form 10-Q for its fiscal quarter ended June 24, 2000 (as amended) 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 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 (the
"Securities Act"), 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 5.08. 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
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accepted accounting principles 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 5.09. 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, (i) the Exchange Schedule 14D-9 (including information
required by Rule 14f-1 under the Exchange Act), the Schedule 14D-9/A (including
information required by Rule 14f-1 under the Exchange Act) and (iii) the proxy
or information statement of the Company containing information required by
Regulation 14A under the Exchange Act (the "Company Proxy Statement"), if any,
to be filed with the SEC in connection with the Offer or 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 Schedule 14D-9/A, the Exchange Schedule 14D-9 and
the Company Proxy Statement or any amendment or supplement thereto is first
mailed to stockholders of the Company, and, with respect to the Company Proxy
Statement only, at the time such stockholders vote on adoption of this Agreement
and at the Effective Time, the Schedule 14D-9/A, the Exchange Schedule 14D-9 and
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 5.09(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) Neither 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 6.09(a)) nor the
information incorporated by reference from documents filed by the Company with
the SEC or any other governmental or regulatory authority will, at the time of
the 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.
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Section 5.10. Absence of Certain Changes. Except as set forth in
Schedule 5.10 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 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;
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(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.
Section 5.11. No Undisclosed Material Liabilities. Except as set forth
in Schedule 5.11, the Company 10-K or the Company 10-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 5.12. Litigation. Except as set forth in Schedule 5.12, the
Company 10-K or the Company 10-Qs, there is no action, suit, investigation or
proceeding (or any basis therefor)
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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 5.13. Taxes. (a) Except as set forth in Schedule 5.13 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;
(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 or should 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 or Straddle Period (including
any Pre-Closing Tax Period or Straddle Period for
which no Return has yet been filed) reflected on the
Balance Sheet (in addition to any provision for
deferred income Taxes) are adequate to cover such
Taxes as of the Balance Sheet Date. "Straddle Period"
is any tax period beginning before the Effective Time
but ending after the Effective Time.
(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 5.13 and
Section 6.13, 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.
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(b) For purposes of this Section 5.13, "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 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 5.14. ERISA. (a) Schedule 5.14 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 5.14, "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 5.14 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 5.14 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 Effective Time 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. Neither the Company nor any ERISA Affiliate of
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the Company has incurred any liability under Title IV of ERISA (other than for
PBGC Premium not yet due).
(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 Employee 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.
(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
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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 5.14(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 5.14,
"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 5.15. Labor Matters. Except as set forth in Schedule 5.15 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 (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 5.15 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 5.15 and except for such
matters as would not, individually or in the aggregate, reasonably be expected
to have a Material Adverse Effect,
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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 5.16. Compliance with Laws. Except to the extent set forth in
Schedules 5.11, 5.12 and 5.19, 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.
Section 5.17. Licenses and Permits. Except as set forth on Schedule
5.17 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 5.18. Intellectual Property. Except as set forth in Schedule
5.18, 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, an "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.
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Section 5.19. 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 5.19, 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;
(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 5.19(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 5.19, 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 5.19, 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 5.19, 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,
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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 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 5.20. 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 5.21. Inapplicability of Certain Restrictions. The Company has
taken all action necessary to exempt the Offer, the Exchange Offer, the Merger,
this Agreement, and the transactions contemplated hereby from Section 203 of the
Delaware Law. Unless Merger Co. acquires at least 90% of the issued and
outstanding shares of Company Common Stock in the Offer and the Exchange Offer,
the adoption of this Agreement by the affirmative vote of the holders of shares
of Company Common Stock entitling such holders to exercise at least a majority
of the voting power of the shares of Company Common Stock 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 5.22. 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.
ARTICLE 6
REPRESENTATIONS AND WARRANTIES OF PARENT
Parent represents and warrants to the Company as of the date hereof and
as of the Effective Time that:
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Section 6.01. Corporate Existence And Power. Parent 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. Parent 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 Parent and the Parent
Subsidiaries taken as a whole ("Parent Material Adverse Effect"). Parent has
heretofore delivered to the Company true and complete copies of Parent's
certificate of incorporation and bylaws as currently in effect.
Section 6.02. 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 6.03. 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
Securities Act and the Exchange Act.
Section 6.04. 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 6.03, 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., except, in the
case of clauses (b) and (c), such contraventions, conflicts, defaults,
terminations, cancellations, accelerations or loss of benefits which would not
reasonably be expected to have a Parent Material Adverse Effect.
Section 6.05. Capitalization. The authorized capital stock of the
Company consists of 900,000,000 shares of Parent Common Stock and 900,000,000
shares of Class B common stock, par value $0.10 per share (the "Class B Common
Stock"). As of the close of business on December 28, 2000, there were
outstanding 120,429,640 shares of Parent Common Stock and 102,645,048 Class B
Common Stock. As of the close of business on December 2, 2000, there were
outstanding stock options to purchase an aggregate of 6,739,160 shares of Parent
Common
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Stock (of which options to purchase an aggregate of 3,743,535 shares of Parent
Common Stock were exercisable). All outstanding shares of capital stock of
Parent have been duly authorized and validly issued and are fully paid and
nonassessable. Except for changes since December 2, 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 (a), (b) and (c) of this Section
6.05 being referred to collectively as the "Parent Securities"). There are no
outstanding obligations of the Parent or any Parent Subsidiary to repurchase,
redeem or otherwise acquire any Parent Securities.
Section 6.06. Parent Subsidiaries. (a) Each Parent 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 Parent Material Adverse Effect. For purposes of this
Agreement, "Parent 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 Parent and/or one or more Parent
Subsidiaries. All Parent Subsidiaries and their respective jurisdictions of
incorporation are identified in Schedule 6.06.
(b) All of the outstanding capital stock of, or other ownership
interests in, each Parent Subsidiary, is owned by Parent, 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 Parent or any Parent Subsidiary convertible into
or exchangeable for shares of capital stock or other voting securities or
ownership interests in any Parent Subsidiary, and (ii) options or other rights
to acquire from Parent or any Parent Subsidiary, and no other obligation of the
Parent or any Parent 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 Parent Subsidiary (the items in clauses (i) and (ii) of this Section 6.06(b)
being referred to collectively as the "Parent Subsidiary Securities"). There are
no outstanding obligations of Parent or any Parent Subsidiary to repurchase,
redeem or otherwise acquire any outstanding Parent Subsidiary Securities.
(c) Since the date of its incorporation, Merger Co. has not engaged in
any activities other than in connection with or as contemplated by this
Agreement.
Section 6.07. SEC Filings. (a) Parent has delivered or made available
to the Company (i) Parent's annual report on Form 10-K for the year ended
September 30, 2000 (the "Parent 10-K"),
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(ii) 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 (iii) all of its other reports, statements, schedules and
registration statements filed with 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 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 6.08. Parent Financial Statements. The audited consolidated
financial statements of Parent included in the Parent 10-K fairly present, in
all material respects, in conformity with generally accepted accounting
principles applied on a consistent basis (except as may be indicated in the
notes thereto), the consolidated financial position of Parent and its
consolidated subsidiaries as of the dates thereof and their consolidated
statements of income, stockholders' equity and cash flows 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, "Parent Balance
Sheet" means the consolidated balance sheet of Parent as of September 30, 2000
as set forth in the Company 10-K and "Parent Balance Sheet Date" means September
30, 2000.
Section 6.09. Disclosure Documents. (a) Each document required to be
filed by Parent with the SEC in connection with the transactions contemplated by
this Agreement (the "Parent Disclosure Documents"), including, without
limitation, (i) the Form TO/A, (ii) the Exchange Form TO, (iii) the Exchange
Form S-4 and (iv) the Merger Form S-4 (as defined in Section 9.01) to be filed
with the SEC in connection with the Offer, the Exchange Offer or 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 Parent by the Company in writing specifically for
inclusion in the Company Disclosure Documents.
(b) At the time the Form TO/A, the Exchange Form TO, the Exchange Form
S-4 and the Merger Form S-4 or any amendment or supplement thereto is first
mailed to stockholders of the Company, and, with respect to the Exchange Form
S-4 and the Merger Form S-4 only, at the time such Form S-4 is declared
effective by the SEC, the Form TO/A, the Exchange Form TO, the Exchange Form S-4
and the Merger Form S-4, 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 Parent Disclosure Document other than the Exchange Form S-4 or the
Merger Form S-4 and at the time of any distribution thereof, such Parent
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
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contained in this Section 6.09(b) will not apply to statements or omissions
included in the Parent Disclosure Documents based upon information furnished to
Parent in writing by the Company specifically for use therein.
(c) Neither the information with respect to Parent or any Parent
Subsidiary that Parent furnishes in writing to the Company specifically for use
in the Company Disclosure Documents nor the information incorporated by
reference from documents filed by Parent with the SEC or any other governmental
or regulatory authority will, at the time of the 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 6.10. Absence of Certain Changes. Except as set forth in
Schedule 6.10 hereto or the Parent 10-K since the Parent Balance Sheet Date,
Parent and the Parent 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 Parent Material Adverse Effect;
(b) any declaration (other than a quarterly dividend
consistent with past practices), setting aside or payment of any
dividend or other distribution with respect to any shares of capital
stock of Parent, or any repurchase, redemption or other acquisition by
Parent or any Parent Subsidiary of any outstanding shares of capital
stock or other securities of, or other ownership interests in, Parent
or any Parent Subsidiary (other than pursuant to Parent's previously
announced repurchase program);
(c) any amendment of any material term of any outstanding
security of Parent or any Parent Subsidiary that could reasonably be
expected to be materially adverse to Parent;
(d) any creation or assumption by the Parent or any Parent
Subsidiary of any material Lien on any material asset other than in the
ordinary course of business consistent with past practices;
(e) any damage, destruction or other casualty loss (whether or
not covered by insurance) affecting the business or assets of Parent or
any Parent Subsidiary which, individually or in the aggregate, has had
or would reasonably be expected to have a Parent Material Adverse
Effect;
(f) any change in any method of accounting or accounting
practice by Parent or any Parent Subsidiary, except for any such change
required by reason of a concurrent change in generally accepted
accounting principles;
(g) 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 Parent
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or any Parent 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 Parent Material Adverse Effect; or
(h) any cancellation of any licenses, sublicenses, franchises,
permits or agreements to which the Parent or any Parent Subsidiary is a
party, or any notification to Parent or any Parent 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 Parent
Material Adverse Effect.
Section 6.11. No Undisclosed Material Liabilities. Except as set forth
in the Parent 10-K, there are no liabilities, commitments or obligations of the
Parent or any of its subsidiaries of any kind whatsoever whether accrued,
contingent, absolute, determined, determinable or otherwise, and there is no
existing condition, situation or set of circumstances that would reasonably be
likely to result in such a liability commitment or obligation, other than:
(a) liabilities, commitments or obligations disclosed or provided for
in the Parent Balance Sheet or in the Parent 10-K;
(b) liabilities, commitments or obligations incurred in the ordinary
course of business consistent with past practice since the Parent Balance Sheet
Date;
(c) liabilities, commitments or obligations under this Agreement; and
(d) liabilities, commitments or obligations that individually or in the
aggregate have not had and are not reasonably likely to have a material adverse
effect on the condition (financial or otherwise), business, assets, liabilities
or results of operations of the Parent and its subsidiaries taken as a whole.
Section 6.12. Adequate Funds. Parent will have as of the time of
acceptance for payment and purchase of shares of Company Common Stock pursuant
to the Offer sufficient funds for the purchase of all shares of Company Common
Stock that Parent or Merger Co. becomes obligated to accept for payment pursuant
to the Offer and to consummate the transactions contemplated by this Agreement.
Section 6.13. Ownership of Company Common Stock. As of the date of this
Agreement, Parent owns 574,200 shares of Company Common Stock.
Section 6.14. Finders' Fees. Except for Merrill Lynch & Co., 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.
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ARTICLE 7
COVENANTS OF THE COMPANY
Section 7.01. Conduct of the Company. From the date hereof until the
Control Date, 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 Control Date 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 $5 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 $20 million in the aggregate;
(ii) make any investment in an amount in excess of $5
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 $5 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;
(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 $25 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
$2 million in the aggregate;
(vii) make any loans, advances or capital contributions to,
or investments in, any other person which are in
excess of $5 million in the aggregate; or
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(viii) authorize any new capital expenditures which,
individually or in the aggregate, would cause total
capital expenditures for either of the first quarter
or the second quarter of calendar year 2001 to exceed
$85 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
of which is owned directly or indirectly by the Company, or, other than
consistent with its past practice of acquiring shares of Company Common
Stock to meet its obligation to reserve and issue shares of Company
Common Stock 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 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 7.01, 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) except as set forth in Schedule 7.01, approve any new
labor agreements;
(g) take any action other than in the ordinary course of
business and consistent with past practices with respect to accounting
policies or procedures;
(h) agree or commit to do any of the foregoing; or
(i) 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.
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Section 7.02. Stockholder Meeting. The Company shall cause a meeting of
its stockholders (the "Company Stockholder Meeting") to be duly called and held
after the purchase of and payment for the shares of Company Common Stock
pursuant to the Offer for the purpose of voting on the approval and adoption of
this Agreement and the Merger. Subject to Section 7.04, 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.
Section 7.03. 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 7.04. 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, prior to the acceptance for payment of shares of
Company Common Stock pursuant to the Offer representing together with shares of
Company Common Stock already owned by Parent at least 50.1% of the shares of
Company Common Stock outstanding, 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
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
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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 7.02 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 7.04, (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 7.04, 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 Offer and 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.
(b) If this Agreement is terminated under circumstances which would
constitute a Payment Event (as defined below), the Company will pay to Parent a
reimbursement payment of the amount advanced to the Company by Parent in order
to pay the amount described in the last sentence of Section 5.04 in cash,
together with interest thereon, at a rate equal to the London Interbank Offered
Rate plus .75%, from the date hereof to the date such payment is due pursuant to
this Agreement (collectively, the "Reimbursement Payment), reflecting
reimbursement of the amounts advanced by Parent to the Company on the date
hereof and used by the Company to pay the termination fee and the out-of-pocket
fees and expenses owed to Rawhide Holdings Corporation under the Rawhide Merger
Agreement (which advance will be evidenced by a note that, in the event of
termination of this Agreement, will be repaid only on the terms set forth in
this Section 7.04(b) with respect to the Reimbursement Payment, and that will
survive the consummation of the Merger if the Merger is completed). Any payment
of the Reimbursement Payment pursuant to this Section 7.04(b) shall be made
within one business day after termination
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of this Agreement. Any payment of the Reimbursement Payment shall be made by
wire transfer of immediately available funds.
"Payment Event" means (x) the termination of this Agreement by
the Company or Parent pursuant to Sections 11.01(d) or (e); or (y) the
termination of this Agreement pursuant to Sections 11.01(b), (f) or (h)
if at the time of such termination (or, in the case of a termination
pursuant to Section 11.01(h), 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 the Per
Share of Company Common Stock Amount, 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 of Company Common
Stock value than such Acquisition Proposal.
(c) Upon the termination of this Agreement under circumstances which
would constitute a Payment Event, the Company shall reimburse Parent and its
affiliates not later than two business days after demand delivered by Parent to
the Company, the amount of $7,500,000 representing Parent's fees and expenses
(including, without limitation, the reasonable fees and expenses of their
counsel and investment banking fees) and Parent shall not be required to submit
documentation substantiating such fees and expenses.
(d) The Company acknowledges that the agreements contained in this
Section 7.04 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 7.04, 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 7.04, the
Company shall also pay to Parent its costs and expenses incurred in connection
with such litigation.
(e) This Section 7.04 shall survive any termination of this Agreement,
however caused, except a termination pursuant to Sections 11.01(a) or (c).
Section 7.05. 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
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been required to have been disclosed pursuant to Section 5.12 or which
relate to the consummation of the transactions contemplated by this
Agreement.
Section 7.06. Tax Matters. (a) Except as required by law, without the
prior written consent of Parent (such consent not to be unreasonably withheld),
neither the Company nor any of its Subsidiaries shall make or change any
material Tax election, change any annual Tax accounting period, adopt or change
any method of Tax accounting, file any amended Returns or claims for Tax
refunds, enter into any closing agreement, surrender any Tax claim, audit or
assessment, surrender any right to claim a Tax refund, offset or other reduction
in Tax liability surrendered, consent to any extension or waiver of the
limitations period applicable to any Tax claim or assessment or take or omit to
take any other action, if any such election, action or omission would have the
effect of increasing the Tax liability or reducing any Tax asset of the Company
or any of its Subsidiaries.
(b) The Company and each of its Subsidiaries will establish or cause to
be established in accordance with GAAP on or before the Effective Time an
adequate accrual for all Taxes due with respect to any Pre-Closing Tax Period or
applicable portion of the Straddle Period.
(c) Neither the Company nor any of its Subsidiaries shall take any
action that would reasonably be likely to prevent the Merger from qualifying as
a reorganization within the meaning of Section 368(a) of the Code ("368(a)
Reorganization") and prior to the Effective Time, the Company and its
Subsidiaries shall use their reasonable best efforts to cause the Merger to
qualify as a 368(a) Reorganization. The Company shall use its reasonable best
efforts to cause Wachtell, Lipton, Rosen & Katz to provide an opinion, on the
basis of certain facts, representations and assumptions set forth in such
opinion, dated the Effective Time, to the effect that the Merger will be treated
for federal income tax purposes as a 368(a) Reorganization and that each of
Parent, Merger Co. and the Company will be a party to the reorganization within
the meaning of Section 368(b) of the Code. The Company shall use its reasonable
best efforts to provide to Wachtell, Lipton, Rosen & Katz and Milbank, Tweed,
Hadley & McCloy LLP a certificate containing representations reasonably
requested by such counsel in connection with the opinions to be delivered
pursuant to this Section 7.06(c) and Section 8.10 hereof.
Section 7.07. Affiliates. At least 30 days prior to the Effective Time,
the Company shall deliver to Parent a letter identifying all known Persons who
may be deemed affiliates of the Company for the purposes of Rule 145 of the
Securities Act. The Company shall use reasonable best efforts to obtain a
written agreement from each Person who may be so deemed as soon as practicable
and, in any event, prior to the Effective Time, substantially in the form of
Exhibit A hereto.
Section 7.08. Confidentiality. The confidentiality agreement dated
December 18, 2000 between Parent and the Company shall continue in full force
and effect prior to the Effective Time and after any termination of this
Agreement.
Section 7.09. Other Actions. The Company shall not, and shall not
permit any of its Subsidiaries to, take any action that would, or that would
reasonably be expected to, result in any of the conditions set forth in Article
10 not being satisfied.
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ARTICLE 8
COVENANTS OF PARENT
Parent agrees that:
Section 8.01. Parent Stockholder Meeting. Parent shall cause a meeting
of its stockholders to be duly called and held as soon as reasonably practicable
for the purpose of voting on the issuance of Parent Common Stock in the Exchange
Offer, the Merger and pursuant to Parent Options after the Merger. The Board of
Directors of Parent shall recommend approval of the issuance of Parent Common
Stock in the Exchange Offer and the Merger pursuant to this Agreement and shall
not withdraw such recommendation.
Section 8.02. Confidentiality. The Confidentiality Agreement dated
December 4, 2000 between the Company and Parent (the "Confidentiality
Agreement') shall continue in full force and effect prior to the Effective Time
and after any termination of this Agreement.
Section 8.03. Voting Of Shares. Each of Parent and Merger Co. agrees to
vote, and to cause any of their subsidiaries to vote, all shares of Company
Common Stock beneficially owned by them in favor of adoption of this Agreement
at the Company Stockholder Meeting.
Section 8.04. 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 8.05. Employee Matters. Parent agrees that, 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 Parent and its Subsidiaries to their employees; PROVIDED,
however, that this Section 8.05 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.
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Section 8.06. 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 8.07. NYSE Listing. Parent shall use its reasonable best
efforts to cause the shares of Parent Common Stock to be issued in connection
with the Exchange Offer and the Merger to be listed on the NYSE, subject to
official notice of issuance.
Section 8.08. Acquisitions of Shares. Neither Parent nor Merger Co.
will acquire any shares of Company Common Stock prior to the Effective Time or
the termination of this Agreement, other than shares of Company Common Stock
purchased pursuant to the Offer or the Exchange Offer.
Section 8.09. 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.
Section 8.10. Reorganization Matters. Neither Parent nor any of its
Subsidiaries shall take any action that would reasonably be likely to prevent
the Merger from qualifying as a Section 368(a) Reorganization and prior to the
Effective Time, the Parent and its Subsidiaries shall use their reasonable best
efforts to cause the Merger to qualify as a Section 368(a) Reorganization.
Parent shall use its reasonable best efforts to obtain the opinions referred to
in Section 10.01(f). Parent shall use its reasonable best efforts to cause
Milbank, Tweed, Hadley & McCloy LLP to provide an opinion, on the basis of
certain facts, representations and assumptions set forth in such opinion, dated
the Effective Time, to the effect that the Merger will be treated for federal
income tax purposes as a Section 368(a) Reorganization and that each of Parent,
Merger Co. and the Company will be a party to the reorganization within the
meaning of Section 368(a) of the Code. Parent shall use its reasonable best
efforts to provide to Wachtell, Lipton, Rosen & Katz and Milbank, Tweed, Hadley
& McCloy LLP a certificate containing representations reasonably requested by
such counsel in connection with the opinions to be delivered pursuant to
Sections 7.06(c) hereof and this Section 8.10.
Section 8.11. Information Relating to Offer. Parent shall, and shall
use its reasonable best efforts to cause any depository or agent effecting the
Offer, to provide to the Company promptly as requested from time to time by the
Company current information regarding the status of the Offer and the Exchange
Offer and the number of shares tendered and not validly withdrawn.
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Section 8.12. Conduct of Parent. From the date hereof until the
Effective Time, Parent and its 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.
Section 8.13. Voting Agreement. Contemporaneous with the execution
hereof, Parent shall cause to be delivered by Tyson Limited Partnership a voting
agreement in the form attached hereto as Exhibit B.
Section 8.14. Other Actions. Parent shall not, and shall not permit any
Parent Subsidiary to, take any action that would, or that would reasonably be
expected to, result in any of the conditions set forth in Article 10 not being
satisfied.
ARTICLE 9
COVENANTS OF PARENT AND THE COMPANY
The parties hereto agree that:
Section 9.01. Company Proxy Statement and Merger Form S-4. If Merger
Co. does not acquire at least 90% of the issued and outstanding Company Common
Stock in the Offer and the Exchange Offer, the Company shall promptly prepare
the Company Proxy Statement and Parent shall, for shares of Parent Common Stock
to be issued in the Merger, promptly prepare and file with the SEC the
Registration Statement on Form S-4 containing information required by Regulation
S-K under the Exchange Act (the "Merger Form S-4"), in which the Company Proxy
Statement will be included. The Company, Parent and Merger Co. shall cooperate
with each other in the preparation of the Merger Form S-4 and any amendment or
supplement thereto, and each shall notify the other of the receipt of any
comments of the SEC with respect to the Merger Form S-4 and of any requests by
the SEC for any amendment or supplement thereto or for additional information,
and shall provide to the other promptly copies of all correspondence between
Parent or the Company, as the case may be, or any of its Representatives and the
SEC with respect to the Merger Form S-4. Parent shall give the Company and its
counsel the opportunity to review the Merger Form S-4 and all responses to
requests for additional information by and replies to comments of the SEC before
their being filed with, or sent to, the SEC. Each of the Company, Parent and
Merger Co. agrees to use its best efforts, after consultation with the other
parties hereto, to respond promptly to all such comments of and requests by the
SEC. Each of the Company, Parent and Merger Co. shall use its reasonable best
efforts to cause the Merger Form S-4 to be declared effective by the SEC as
promptly as practicable. Parent shall promptly take any action (other than
qualifying as a foreign corporation or taking any action which would subject it
to service of process in any jurisdiction where Parent is not now so qualified
or subject) required to be taken under foreign or state securities or Blue Sky
laws in connection with the issuance of Parent Common Stock in the Merger. As
promptly as practicable after the Merger Form S-4 shall have become effective,
Parent and the Company shall fully cooperate with each other to cause the Proxy
Statement/Prospectus contained in the
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Merger Form S-4 to be mailed to stockholders of the Company and Parent. Parent
will advise Company, promptly after it receives notice thereof, of (i) the time
when the Merger Form S-4 becomes effective, (ii) the issuance of any stop order
with respect to the Merger Form S-4, (iii) the suspension of the qualification
of Parent Common Stock for offering or sale in any jurisdiction, or (iv) any
request by the SEC for an amendment of the Merger Form S-4 or comments thereon
and responses thereto or requests by the SEC for additional information.
Section 9.02. Certain Regulatory Issues. 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
7.04, 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 interfere with the Offer or 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 Offer, Exchange Offer, 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 Offer, the Exchange Offer, 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 Offer, the Exchange
Offer, the Merger and the other transactions contemplated by this Agreement.
Parent shall take actions as may be necessary to eliminate any impediment under
any antitrust, competition or trade regulation laws that may be asserted by any
governmental entity with respect to the Offer, the Exchange Offer or the Merger
so as to enable the Offer, the Exchange Offer and the Merger to occur as soon as
reasonably practicable. Without limiting the generality of the foregoing, Parent
shall agree to divest, hold separate, or agree to any conduct restrictions with
respect to any Parent or Company assets or as may be required by any
governmental entity in order to forego that governmental entity bringing any
action to enjoin the Offer, the Exchange Offer or the Merger.
Section 9.03. 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 and the Merger Form S-4 declared effective
by the SEC, in each case as promptly as practicable.
(b) 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
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therewith or with the Company Disclosure Documents and Parent Disclosure
Documents and seeking timely to obtain any such actions, consents, approvals or
waivers.
Section 9.04. 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 9.05. 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.
ARTICLE 10
CONDITIONS TO THE MERGER
Section 10.01. 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 and the issuance of Parent Common Stock in the Merger
shall have been approved by the stockholders of Parent, each in
accordance with Delaware Law;
(b) any applicable waiting period under the HSR Act relating
to the Offer and the Merger shall have expired or been terminated;
(c) no provision of any applicable law or regulation and no
judgment, injunction, order or 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;
(d) the Merger Form S-4 shall have been declared effective, no
stop order suspending the effectiveness of the Merger Form S-4 shall be
in effect and no proceedings for such purpose shall be pending before
the SEC; and
(e) the shares of Parent Common Stock to be issued in the
Merger shall have been approved for listing in the NYSE, subject to
official notice of issuance.
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Section 10.02. Conditions to the Obligation of the Company. The
obligation of the Company to consummate the Merger is subject to Merger Co.
having purchased pursuant to the Offer shares of Company Common Stock
representing, together with shares of Company Common Stock previously owned by
Parent, no less than 50.1% of the issued and outstanding shares of Company
Common Stock.
ARTICLE 11
TERMINATION
Section 11.01. Termination. This Agreement may be terminated and the
transactions contemplated hereby 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) (i) by the Company, if the Offer has not been consummated
by February 28, 2001, provided that the Company is not then in breach
in any material respect of any of its obligations under this Agreement;
or (ii) by either the Company or Parent (but in case of Parent, only if
no shares of Company Common Stock were purchased by Merger Co. pursuant
to the Offer) if the Merger has not been consummated by May 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 the
Agreement;
(c) by either the Company or Parent, if there shall be any law
or regulation that makes acceptance for payment of, and payment for,
the shares of Company Common Stock pursuant to the Offer, or
consummation of the Merger illegal or otherwise prohibited or any
judgment, injunction, order or decree enjoining Merger Co. from
accepting for payment of, and paying for, the shares of Company Common
Stock pursuant to the Offer, or Parent, Merger Co. or the Company from
consummating the Merger is entered and such judgment, injunction, order
or decree shall become final and nonappealable;
(d) by Parent, prior to the purchase of the shares of Company
Common Stock pursuant to the Offer, (i) 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,
the Offer, the Exchange Offer or the Merger or its recommendation that
stockholders of the Company tender their shares of Company Common Stock
pursuant to the Offer and the Exchange Offer, adopt and approve this
Agreement and the Merger or approved, recommended or endorsed any
proposal for a transaction other than the transactions hereunder
(including a tender or exchange offer for shares of Company Common
Stock) or (ii) 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 the Merger Form S-4 is declared
effective by the SEC or failed to include in such statement the
recommendation referred to above;
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(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 a Superior Proposal and the Company
notifies Parent in writing at least three business 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
business day period) and (ii) the Company prior to such termination
pursuant to this clause (e) pays to Parent in immediately available
funds the fees required to be paid pursuant to Section 7.04. 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;
(f) by Parent, prior to the acceptance for payment of the
shares of Company Common Stock under the Offer, if there has been a
breach by the Company of any representation, warranty, covenant or
agreement contained in this Agreement that is not curable and such
breach would give rise to a failure of the condition set forth in (d)
or (e) of Annex I hereof;
(g) by the Company, prior to the acceptance for payment of the
Shares under the Offer, if there has been a breach by Parent of any
representation, warranty, covenant or agreement contained in this
Agreement that is not curable and such breach would give rise to a
failure of the condition set forth in (d) or (e) of Annex I hereof
(which, for purposes of this Section 11.01(g) only shall apply mutatis
mutandis to Parent); or
(h) 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; PROVIDED, however,
that Parent shall not have the right to terminate this Agreement or
abandon the transactions contemplated hereby pursuant to this Section
11.01(h) if shares of Company Common Stock were purchased pursuant to
the Offer.
The party desiring to terminate this Agreement pursuant to Sections
11.01(b)-11.01(h) shall give written notice of such termination to the other
party in accordance with Section 12.01.
Section 11.02. Effect of Termination. If this Agreement is terminated
pursuant to Section 11.01, 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 7.04, 7.08, 8.02, 11.02, 11.03, 12.04 and 12.06 shall survive the
termination hereof.
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Section 11.03. Parent Payment Event. If a Parent Payment Event (defined
below) occurs, Parent shall pay to the Company a fee of $70 million
simultaneously with the occurrence of such Parent Payment Event. "Parent Payment
Event" means the termination of this Agreement (i) by Parent or the Company
pursuant to Section 11.01(c) or (ii) by the Company pursuant to Section 11.01(b)
if the inability to close results from the failure of the conditions set forth
in clause (a) of Annex I hereto, provided, however, that, in each case, such
termination results from any laws, regulation, judgment, injunction, order or
decree with respect to any antitrust, competition or trade regulation laws that
may be asserted by any governmental entity with respect to the Offer or the
Merger.
ARTICLE 12
MISCELLANEOUS
Section 12.01. 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:
John Tyson, Chairman of the Board,
President and Chief Executive Officer
Tyson Foods, Inc.
2210 West Oaklawn Drive
Springdale, Arkansas 72762
Telecopy: 501-290-4028
with a copy to:
Les Baledge, Esq.
Tyson Foods, Inc.
2210 West Oaklawn Drive
Springdale, Arkansas 72762
Telecopy: 501-290-4028
and with an additional copy to:
Mel M. Immergut, Esq.
Lawrence Lederman, Esq.
Milbank, Tweed, Hadley & McCloy LLP
1 Chase Manhattan Plaza
New York, New York 10005
Telecopy: 212-530-5219
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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
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 12.02. 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, 8.04, 8.05, 11.03, 12.04 and 12.06.
Section 12.03. 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.
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(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 12.04. Expenses. Except as provided in Section 7.04, all costs
and expenses incurred in connection with this Agreement shall be paid by the
party incurring such cost or expense.
Section 12.05. 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 present and former officers and directors of the
Company shall have the rights set forth in Section 8.04 hereof.
Section 12.06. Governing Law. This Agreement shall be construed in
accordance with and governed by the law of the State of New York, except,
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, the
law of the State of Delaware shall apply.
Section 12.07. 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.
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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: _____________________________
Name: Robert L. Peterson
Title: Chairman & CEO
TYSON FOODS, INC.
By: _____________________________
Name: John Tyson
Title: Chairman, President & CEO
LASSO ACQUISITION CORPORATION
By: _____________________________
Name: John Tyson
Title: President
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ANNEX I
-------
CONDITIONS TO THE OFFER
The capitalized terms used in this Annex I shall have the meanings
ascribed to them in the Agreement and Plan of Merger to which it is attached,
except that the term "Merger Agreement" shall be deemed to refer to such
Agreement and Plan of Merger.
Notwithstanding any other provision of the Offer, Merger Co. shall not
be required to accept for payment or, subject to any applicable rules and
regulations of the SEC, including Rule 14e-1(c) under the Exchange Act (relating
to Merger Co.'s obligation to pay for or return tendered shares of Company
Common Stock promptly after termination or withdrawal of the Offer), pay for,
and may (subject to any such rule or regulation) delay the acceptance for
payment of any tendered shares of Company Common Stock, and may (except as
provided in the Merger Agreement) amend or terminate the Offer as to any shares
of Company Common Stock not then paid for, if (i) the condition that shares of
Company Common Stock representing at least the Minimum Condition shall have been
validly tendered and not properly withdrawn prior to the expiration of the Offer
shall not have been satisfied, (ii) any applicable waiting period under the HSR
Act shall not have expired or terminated prior to the expiration of the Offer or
(iii) at any time on or after the date of the Merger Agreement and before the
time of payment for any such shares of Company Common Stock (whether or not any
shares of Company Common Stock have theretofore been accepted for payment or
paid for pursuant to the Offer), any of the following events shall have occurred
and remain in effect other than as a result of any action or inaction of Parent
or any of its Subsidiaries that constitutes a breach of this Agreement:
(a) there shall have been any law or order promulgated,
entered, enforced, enacted, issued or deemed applicable to the Offer or
the Merger by any court of competent jurisdiction or other competent
governmental or regulatory authority which, directly or indirectly, (1)
prohibits, or imposes any material limitations on, Parent's or Merger
Co.'s ownership or operation (or that of any of their respective
subsidiaries or affiliates) of any portion of their or the Company's
businesses or assets which is material to the business of all such
entities taken as a whole, or compels Parent or Merger Co. (or their
respective subsidiaries or affiliates) to dispose of or hold separate
any portion of their or the Company's business or assets which is
material to the business of all such entities taken as a whole, (2)
prohibits, restrains or makes illegal the acceptance for payment,
payment for or purchase of shares of Company Common Stock pursuant to
the Offer or the consummation of the Merger, (3) imposes material
limitations on the ability of Merger Co. or Parent (or any of their
respective subsidiaries or affiliates) effectively to acquire or to
hold or to exercise full rights of ownership of the shares of Company
Common Stock purchased pursuant to the Offer including, without
limitation, the right to vote such shares of Company Common Stock on
all matters properly presented to the Company's stockholders, (4)
imposes material limitations on the ability of Merger Co. or Parent (or
any of their respective subsidiaries or affiliates) effectively to
control in any material respect any material portion of the business or
assets of the Company and the Subsidiaries taken as a whole, or (5)
otherwise materially adversely affects the Company and the Subsidiaries
taken as a whole; PROVIDED, however, that actions or inactions agreed
to
<PAGE>
be taken or not taken by Parent and Merger Co. in the Merger Agreement
(including, without limitation, the agreements in Section 9.02 of the
Merger Agreement) shall not be deemed to be a satisfaction of the
conditions set forth in this clause (a);
(b) there shall have occurred (1) any general suspension of
trading in, or limitation on prices for, securities on the New York
Stock Exchange for a period in excess of 24 hours (excluding
suspensions of limitations resulting solely from physical damage or
interference with such exchange not related to market conditions or
suspensions or limitations triggered by price fluctuations on a trading
day), (2) a declaration of a banking moratorium or any suspension of
payments in respect of banks in the United States (whether or not
mandatory), (3) any limitation (whether or not mandatory) by any United
States governmental or regulatory authority on the extension of credit
by banks or other financial institutions, or (4) in the case of any of
the foregoing existing at the time of the execution of the Merger
Agreement, a material acceleration or worsening thereof;
(c) except as disclosed in the Company SEC Reports filed prior
to the date of the execution of the Merger Agreement, since such date,
there shall have been any change, event or development having, or that
could reasonably be expected to have, individually or in the aggregate,
a Material Adverse Effect on the Company and the Subsidiaries taken as
a whole;
(d) except as affected by actions specifically permitted by
this Agreement, the representations and warranties of the Company
contained in this Agreement (x) that are qualified by materiality or
Material Adverse Effect shall not be true at and as of the scheduled
expiration of the Offer 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 (y) that are not
qualified by materiality or Material Adverse Effect shall not be true
in all material respects at and as of the Effective Time as if made at
and as of such time;
(e) the Company shall not have performed and complied with, in
all material respects, each agreement and covenant required by the
Merger Agreement to be performed or complied with by it with such
exceptions as would not in the aggregate have a Material Adverse
Effect;
(f) the Merger Agreement shall have been terminated in
accordance with its terms; or
(g) Parent, Merger Co. and the Company shall have agreed that
Merger Co. shall amend the Offer to terminate the Offer or postpone the
payment for shares of Company Common Stock thereunder;
which in the reasonable good faith judgment of Parent and Merger Co., in any
such case, and regardless of the circumstances makes it inadvisable to proceed
with the Offer or with such acceptance for payment or payment.
-2-
<PAGE>
The foregoing conditions are for the sole benefit of Parent and Merger
Co., may be asserted by Parent and Merger Co. regardless of the circumstances
giving rise to any such condition and, subject to the terms and conditions of
the Merger Agreement, may be waived by Parent and Merger Co., in whole or in
part at any time and from time to time in the sole discretion of Parent and
Merger Co. The failure by Parent and Merger Co. at any time to exercise any of
the foregoing rights shall not be deemed a waiver of any such right and each
such right shall be deemed an ongoing right which may be asserted at any time
and from time to time.
-3-
<PAGE>
ANNEX II
--------
CONDITIONS TO THE EXCHANGE OFFER
The capitalized terms used in this Annex II shall have the meanings
ascribed to them in the Agreement and Plan of Merger to which it is attached,
except that the term "Merger Agreement" shall be deemed to refer to such
Agreement and Plan of Merger.
Notwithstanding any other provision of the Exchange Offer, Merger Co.
shall not be required to accept for payment or, subject to any applicable rules
and regulations of the SEC, including Rule 14e-1(c) under the Exchange Act
(relating to Merger Co.'s obligation to pay for or return tendered shares of
Company Common Stock promptly after termination or withdrawal of the Exchange
Offer), pay for, and may (subject to any such rule or regulation) delay the
acceptance for payment of any tendered shares of Company Common Stock, and may
(except as provided in the Merger Agreement) amend or terminate the Exchange
Offer as to any shares of Company Common Stock not then paid for, if (i) Merger
Co. has not accepted for payment and paid for a number of shares of Company
Common Stock representing, together with shares of Company Common Stock
previously owned by Parent, at least 50.1% of the issued and outstanding shares
of Company Common Stock or (ii) at any time on or after the date of the Merger
Agreement and before the time of payment for any such shares of Company Common
Stock (whether or not any shares of Company Common Stock have theretofore been
accepted for payment or paid for pursuant to the Exchange Offer), any of the
following events shall have occurred and remain in effect other than as a result
of any action or inaction of Parent or any Parent Subsidiary that constitutes a
breach of this Agreement:
(a) there shall have been any law or order promulgated,
entered, enforced, enacted, issued or deemed applicable to the Exchange
Offer by any court of competent jurisdiction or other competent
governmental or regulatory authority which, directly or indirectly, (1)
prohibits, or imposes any material limitations on, Parent's or Merger
Co.'s ownership or operation (or that of any of their respective
subsidiaries or affiliates) of any portion of their or the Company's
businesses or assets which is material to the business of all such
entities taken as a whole, or compels Parent or Merger Co. (or their
respective subsidiaries or affiliates) to dispose of or hold separate
any portion of their or the Company's business or assets which is
material to the business of all such entities taken as a whole, (2)
prohibits, restrains or makes illegal the acceptance for payment,
payment for or purchase of shares of Company Common Stock pursuant to
the Exchange Offer or the consummation of the Merger, (3) imposes
material limitations on the ability of Merger Co. or Parent (or any of
their respective subsidiaries or affiliates) effectively to acquire or
to hold or to exercise full rights of ownership of the shares of
Company Common Stock purchased pursuant to the Exchange Offer
including, without limitation, the right to vote such shares of Company
Common Stock on all matters properly presented to the Company's
stockholders, (4) imposes material limitations on the ability of Merger
Co. or Parent (or any of their respective Subsidiaries or affiliates)
effectively to control in any material respect any material portion of
the business or assets of the Company and the Subsidiaries taken as a
whole, or (5) otherwise materially adversely affects the Company and
the Subsidiaries taken as a whole; PROVIDED, however, that actions or
inactions agreed to
<PAGE>
be taken or not taken by Parent and Merger Co. in the Merger Agreement
(including, without limitation, the agreements in Section 9.02 of the
Merger Agreement) shall not be deemed to be a satisfaction of the
conditions set forth in this clause (a);
(b) the issuance of Parent Common Stock in the Exchange Offer
and the Merger shall not have been approved by the stockholders of
Parent, in accordance with Delaware Law;
(c) the shares of Parent Common Stock to be issued in the
Exchange Offer and the Merger shall not have been approved for listing
on the NYSE, subject to official notice of issuance;
(d) the Merger Agreement shall have been terminated in
accordance with its terms;
(e) Parent, Merger Co. and the Company shall have agreed that
Merger Co. shall amend the Exchange Offer to terminate the Exchange
Offer or postpone the payment for shares of Company Common Stock
thereunder; or
(f) the Exchange Form S-4 shall not have been declared
effective by the SEC or the SEC has suspended effectiveness of, or
issued a stop order with respect to, the Exchange Form S-4 which
suspension or stop order has not been lifted;
which in the reasonable good faith judgment of Parent and Merger Co., in any
such case, and regardless of the circumstances makes it inadvisable to proceed
with the Exchange Offer or with such acceptance for payment or payment.
The foregoing conditions are for the sole benefit of Parent and Merger
Co., may be asserted by Parent and Merger Co. regardless of the circumstances
giving rise to any such condition and, subject to the terms and conditions of
the Merger Agreement, may be waived by Parent and Merger Co., in whole or in
part at any time and from time to time in the sole discretion of Parent and
Merger Co. The failure by Parent and Merger Co. at any time to exercise any of
the foregoing rights shall not be deemed a waiver of any such right and each
such right shall be deemed an ongoing right which may be asserted at any time
and from time to time.
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<PAGE>
ANNEX III
---------
TERMINATED TENDER OFFER/CASH ELECTION MERGER
In accordance with Section 3.06 of the Agreement, in the event of a
Terminated Tender Offer, the Agreement shall be amended as follows:
Section 1. The table of definitions is amended to insert the following
defined terms in correct alphabetical order:
<TABLE>
<CAPTION>
TERM SECTION
---- -------
<S> <C>
Allocation Date 3.03(b)
Cash Consideration 3.02(c)
Cash Election 3.03(a)
Cash Election Shares 3.02(c)
Dissenting Shares 3.02(e)
Election Deadline 3.03(a)
Election Form 3.03(a)
Exchange Agent 3.03(a)
No-Election Shares 3.03(a)
Stock Consideration 3.02(c)
Stock Election 3.03(a)
</TABLE>
Section 2. Clause (c) of Section 3.02 of the Agreement shall be amended
and restated in its entirety as follows:
(c) holders of Company Common Stock (other than Parent, Merger
Co. and holders who properly perfect appraisal rights under Section 262
of the Delaware Law) outstanding immediately prior to the Effective
Time shall have the right to elect to receive from Parent for each
share of Company Common Stock either (i) $27.00 in cash (the "Cash
Consideration") (such shares for which such election is made to be
referred to as the "Cash Election Shares"), (ii) a number of shares
(such shares for which such election is made to be referred to as the
"Stock Election Shares") of Parent Common Stock (the "Stock
Consideration") equal to the Exchange Ratio (as defined below) or (iii)
a combination of both. For purposes of this Section 3.02(c), "Exchange
Ratio" shall mean a number equal to:
(i) If the Average Parent Common Stock Price is equal to
or greater than $15.40, the Exchange Ratio shall be
1.753 shares of Parent Common Stock;
(ii) If the Average Parent Common Stock Price is less than
$15.40 and greater than $12.60, the Exchange Ratio
shall be determined by dividing $27.00 by the Average
Parent Common Stock Price; and
<PAGE>
(iii) If the Average Parent Common Stock Price is equal to
or less than $12.60 the Exchange Ratio shall be 2.143
shares of Parent Common Stock.
For purposes of this Section 3.02, "Average Parent Common Stock Price"
means the average of the closing price per share of Parent Common Stock
on the New York Stock Exchange, Inc. (the "NYSE") at the end of the
regular session as reported on the Consolidated Tape, Network A for the
fifteen consecutive trading days ending on the fifth trading day
immediately preceding the Effective Time. For purposes of this
Agreement, Cash Consideration, Stock Consideration and any combination
of the both shall be collectively referred to herein as "Merger
Consideration".
Section 3. New clauses (d) and (e) shall be inserted in Section 3.02 of
the Agreement which states as follows:
(d) (i) In the event that holders of shares of Company Common
Stock who hold, in the aggregate, a number of shares of Company Common
Stock which represents, together with shares of Company Common Stock
owned by Parent and Dissenting Shares, if any, more than 50.1% of the
issued and outstanding shares of Company Common Stock, have made a Cash
Election (as defined in Section 3.03(a)), then such holders will
receive a combination of cash and shares of Parent Common Stock to be
determined as follows: (A) the number of Cash Election Shares covered
by a Cash Election which shall be converted into the right to receive
the Cash Consideration shall equal the amount obtained by multiplying
(I) the number of shares of Company Common Stock covered by such Cash
Election by (II) a fraction of which the numerator shall be the cash
made available by Parent and Merger Co. and the denominator shall be
the amount of the Cash Consideration multiplied by the number of Cash
Election Shares; and (B) the balance of such Cash Election Shares shall
each be converted into the right to receive the Stock Consideration;
or (ii) In the event that holders of shares of Company Common Stock who
hold, in the aggregate, a number of shares of Company Common Stock
which represents more than 49.9% of the issued and outstanding shares
of Company Common Stock, have made a Stock Election (as defined in
Section 3.03(a)), then such holders will receive a combination of cash
and shares of Parent Common Stock to be determined as follows: (A) the
number of Stock Election Shares covered by a Stock Election which shall
be converted into the right to receive the Stock Consideration shall
equal the amount obtained by multiplying (I) the number of shares of
Company Common Stock covered by such Stock Election by (II) a fraction
of which the numerator shall be the number of shares of Parent Common
Stock made available by Parent and the denominator shall be the amount
of the Stock Consideration multiplied by the number of Stock Election
Shares; and (B) the balance of such Stock Election Shares shall each be
converted into the right to receive the Cash Consideration; or (iii) In
the event neither of the foregoing clauses (i) or (ii) is applicable,
each holder of shares of Company Common Stock that elects to receive
Parent Common Stock will receive the Stock Consideration in the Merger
and each holder of shares of Company Common Stock that elects to
receive cash will receive the Cash Consideration in the Merger.
-2-
<PAGE>
(e) Notwithstanding Section 3.02, shares of Company Common
Stock which are issued and outstanding immediately prior to the
Effective Time and which are held by a holder who (i) has not voted
such shares of Company Common Stock in favor of the Merger; (ii) shall
have delivered a written demand for appraisal of such Shares in the
manner provided by the Delaware Law and (iii) as of the Effective Time,
shall not have effectively withdrawn or lost such right to appraisal
((i),(ii) and (iii) together, the "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 of Company Common Stock 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 of Company Common Stock or lost his right to appraisal and
payment for his shares of Company Common Stock under Section 262 of the
Delaware Law or (iii) if neither any holder of Dissenting Shares nor
the Surviving 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 of Company Common Stock 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 3.02 hereof. The Company shall give Parent prompt notice of any
demands received by the Company for appraisal of shares of Company
Common Stock, 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 4. Section 3.03 of the Agreement shall be amended as follows:
(i) clause (a) shall be amended and restated in its entirety as stated below;
(ii) new clauses (b) and (c) shall be inserted as stated below; and (iii)
current clauses (b), (c), (d) and (e) shall be renamed (d), (e), (f) and (g),
respectively.
(a) Prior to the Effective Time, Parent shall appoint an agent
reasonably acceptable to the Company (the "Exchange Agent") for the
purpose of exchanging certificates representing shares of Company
Common Stock 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 delivered in respect of the shares of Company Common Stock. At
the time of the mailing of the Proxy Statement/Prospectus provided for
in Section 9.01, Parent will cause the Exchange Agent to send to each
holder of shares of Company Common Stock on the record date for the
meeting of stockholders of the Company a letter of transmittal and cash
election form (collectively, the "Election Form") and other appropriate
materials providing for such holder, subject to the provisions of
Section 3.02(d), (i) to elect to
-3-
<PAGE>
receive the Stock Consideration with respect to all or any portion of
such holder's shares of Company Common Stock ("Stock Election") or (ii)
to elect to receive the Cash Consideration with respect to all or any
portion of such holder's shares of Company Common Stock ("Cash
Election"). As of the Election Deadline (as hereinafter defined), any
shares of Company Common Stock with respect to which there shall not
have been such election by submission to the Exchange Agent of an
effective, properly completed Election Form shall be deemed to be
"No-Election Shares".
(i) Any election to receive the Cash Consideration or the
Stock Consideration shall have been validly made only if the Exchange
Agent shall have received by 5:00 p.m., New York City time, on the
business day preceding the meeting of stockholders of the Company
provided for in Section 7.02 (the "Election Deadline"), an Election
Form properly completed. An election by a holder of shares of Company
Common Stock shall be validly made only if the Exchange Agent shall
have received an Election Form properly completed and executed (with
the signature or signatures thereon guaranteed if required by the
Election Form) by such holder of shares of Company Common Stock. Parent
shall have the right to make reasonable determinations and to establish
reasonable procedures (not inconsistent with the terms of this
Agreement) in guiding the Exchange Agent in its determination as to the
validity of Election Forms and of any revision, revocation or
withdrawal thereof.
(ii) Two or more holders of shares of Company Common Stock who
are determined to constructively own such shares owned by each other by
virtue of Section 318(a) of the Code and who so certify to Parent's
satisfaction, and any single holder of shares of Company Common Stock
who holds such shares in two or more different names and who so
certifies to Parent's satisfaction, may submit a joint Election Form
covering the aggregate shares of Company Common Stock owned by all such
holders or by such single holder, as the case may be. For all purposes
of this Agreement, each such group of holders which, and each such
single holder who, submits a joint Election Form shall be treated as a
single holder of shares of Company Common Stock.
(iii) Record holders of shares of Company Common Stock who are
nominees only may submit a separate Election Form for each beneficial
owner for whom such record holder is a nominee; provided, however, that
at the request of Parent, such record holder shall certify to the
satisfaction of Parent that such record holder holds such shares as
nominee for the beneficial owner thereof. For purposes of this
Agreement, each beneficial owner for which an Election Form is
submitted will be treated as a separate holder of shares of Company
Common Stock subject, however, to the immediately preceding paragraph
(ii) dealing with joint Election Forms.
(iv) Any holder of shares of Company Common Stock who has made
an election by submitting an Election Form to the Exchange Agent may at
any time prior to the Election Deadline change such holder's election
by submitting a revised Election Form, properly completed and signed,
that is received by the Exchange Agent prior to the Election Deadline.
Any holder of shares of Company Common Stock may at any time
-4-
<PAGE>
prior to the Election Deadline revoke such holder's election by written
notice to the Exchange Agent received at any time prior to the Election
Deadline.
(b) As soon as practicable after the Election Deadline (the
"Allocation Date"), the Exchange Agent shall effectuate the allocation
among holders of shares of Company Common Stock of rights to receive
the Stock Consideration or the Cash Consideration in the Merger in
accordance with the terms of this Section 3.03(b). As is more fully set
forth above, the number of shares of Company Common Stock to be
converted in the Merger into the right to receive cash may not exceed a
number of shares of Company Common Stock which, together with shares of
Company Common Stock owned by Parent and Dissenting Shares, exceeds
50.1% of the outstanding shares of Company Common Stock. The number of
shares of Company Common Stock to be converted in the Merger into the
Stock Consideration shall not exceed 49.9% of the total number of
outstanding shares of Company Common Stock.
(i) The Exchange Agent shall determine the percentages of the
Cash Election Shares and the Stock Election Shares have been received.
(ii) Each No-Election Share shall be converted in the Merger
into the right to receive 50% Stock Consideration and 50% Cash
Consideration.
(c) No certificates or scrip for fractional shares of Parent
Common Stock will be issued, no Parent stock split or dividend shall
relate to any fractional share interest, and no such fractional share
interest shall entitle the owner thereof to vote or to any rights of or
as a stockholder of Parent. In lieu of such fractional shares, any
holder of Company Common Stock who would otherwise be entitled to a
fraction of a share of Parent Common Stock (or any other person who is
the record holder of certificates for shares of Parent Common Stock
into which such shares of Company Common Stock have been converted)
will, upon surrender of his certificate or certificates, be paid the
cash value of such fraction (without interest and rounded to the
nearest cent), which shall be equal to the fraction multiplied by the
Average Parent Common Stock Price, which shall be deemed to represent
the market value of a full share of Parent Common Stock.
Section 5. Clause (a) of Section 3.04 of the Agreement shall be amended
and restated in its entirety as follows:
(a) At or immediately prior to the Effective Time, each
employee stock option or director stock option to purchase shares of
Company Common Stock outstanding under any Company stock option plans,
whether or not vested or exercisable (each, a "Company Option") shall,
by virtue of the Merger and without any further action on the part of
any holder thereof, be assumed by Parent and deemed to constitute an
option (each, a "Parent Option") to acquire, on the same terms and
conditions as were applicable under such Company Option (subject to
Section 3.04(b)), the same number of shares of Parent Common Stock as
the holder of such Company Option would have been entitled to receive
pursuant to Section 3.02(c) of this Agreement had such holder exercised
such Company Option in full immediately prior to the Effective Time
(rounded to the nearest
-5-
<PAGE>
whole number) and received only Stock Consideration in the Merger, at a
price per share (rounded down to the nearest whole cent) equal to (x)
the aggregate exercise price for the share of Company Common Stock
otherwise purchasable pursuant to such Company Option divided by (y)
the number of whole shares of Parent Common Stock purchasable pursuant
to the Parent Option in accordance with the foregoing. The other terms
of each such Company Option, and the plans under which they were
issued, shall continue to apply in accordance with their terms.
Section 6. The introduction of Section 7.01 of the Agreement shall be
amended and restated in its entirety as follows (with clauses (a) through (i)
remaining unchanged):
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:
Section 7. Section 7.02 of the Agreement shall be amended and restated
in its entirety as follows:
Section 7.02. Stockholder Meeting. The Company shall cause a
meeting of its stockholders (the "Company Stockholder Meeting") to be
duly called and held, as soon as reasonably practicable following the
date hereof, for the purpose of voting on the approval and adoption of
this Agreement and the Merger. Subject to Section 7.04, 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.
Section 8. In the first proviso of Section 7.04 of the Agreement, the
words "PROVIDED, however, that, prior to the acceptance for payment of shares of
Company Common Stock pursuant to the Offer representing together with shares of
Company Common Stock already owned by Parent at least 50.1% of the shares of
Company Common Stock outstanding" shall be deleted and replaced with "PROVIDED,
however, that, prior to the Effective Time", and the remainder of such section
shall be unchanged.
Section 9. Section 10.01(b) of the Agreement shall be amended and
restated in its entirety as follows:
(b) any applicable waiting period under the HSR Act relating
to the Merger shall have expired or been terminated;
Section 10. Section 10.02 of the Agreement shall be amended and
restated in its entirety as follows:
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<PAGE>
Section 10.02. Conditions to the Obligation of the Company.
The obligation of the Company to consummate the Merger is subject to
the satisfaction of the following further condition:
(a) 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 Parent
Material Adverse Effect shall not be true 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 (y) that are not qualified by
materiality or Parent Material Adverse Effect shall be true in all
material respects at and as of the Effective Time and if made at and as
of such time; and
(b) Parent shall not have performed and complied with each
agreement and covenant required by this Agreement to be performed or
complied with by it with such exceptions as would not in the aggregate
have a Parent Material Adverse Effect.
Section 14. Inserted in the Agreement is a new Section 10.03 which
states as follows:
Section 10.03. 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 of the following conditions:
(a) there shall not have been any law or order promulgated,
entered, enforced, enacted, issued or deemed applicable to the Merger
by any court of competent jurisdiction or other competent governmental
or regulatory authority which, directly or indirectly, (1) prohibits,
or imposes any material limitations on, Parent's or Merger Co.'s
ownership or operation (or that of any of their respective subsidiaries
or affiliates) of any portion of their or the Company's businesses or
assets which is material to the business of all such entities taken as
a whole, or compels Parent or Merger Co. (or their respective
subsidiaries or affiliates) to dispose of or hold separate any portion
of their or the Company's business or assets which is material to the
business of all such entities taken as a whole, (2) imposes material
limitations on the ability of Merger Co. or Parent (or any of their
respective subsidiaries or affiliates) effectively to control in any
material respect any material portion of the business or assets of the
Company and the Subsidiaries taken as a whole, or (3) otherwise
materially adversely affects the Company and the Subsidiaries taken as
a whole; PROVIDED, however, that actions or inactions agreed to be
taken or not taken by Parent and Merger Co. in this Agreement
(including, without limitation, the agreements in Section 9.02 of this
Agreement) shall not be deemed to be a satisfaction of the conditions
set forth in this clause (a);
(b) there shall have occurred (1) any general suspension of
trading in, or limitation on prices for, securities on the New York
Stock Exchange for a period in excess of 24 hours (excluding
suspensions of limitations resulting solely from physical damage or
interference with such exchange not related to market conditions or
suspensions or limitations triggered by price fluctuations on a trading
day), (2) a declaration of a banking
-7-
<PAGE>
moratorium or any suspension of payments in respect of banks in the
United States (whether or not mandatory), (3) any limitation (whether
or not mandatory) by any United States governmental or regulatory
authority on the extension of credit by banks or other financial
institutions, or (4) in the case of any of the foregoing existing at
the time of the execution of this Agreement, a material acceleration or
worsening thereof;
(c) 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 not be true 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 (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; and
(d) the Company shall not have performed and complied with
each agreement and covenant required by this Agreement to be performed
or complied with by it with such exceptions as would not in the
aggregate have a Material Adverse Effect.
-8-
<PAGE>
EXHIBIT A
---------
[Form of Affiliate's Agreement]
[Date]
Tyson Foods, Inc.
2210 West Oaklawn Drive
Springdale, Arkansas 72762
Ladies and Gentlemen:
I have been advised that as of the date hereof I may be deemed to be an
"affiliate" of IBP, inc., a Delaware corporation (the "Company"), as that term
is defined for purposes of paragraphs (c) and (d) of Rule 145 of the rules and
regulations (the "Rules and Regulations") of the Securities and Exchange
Commission (the "Commission") under the Securities Act of 1933, as amended (the
"Act"). Neither my entering into this agreement, nor anything contained herein,
shall be deemed an admission on my part that I am such an "affiliate".
Pursuant to the terms of the Agreement and Plan of Merger dated as of
January __, 2001 (the "Merger Agreement"), among Tyson Foods, Inc. a Delaware
corporation ("Parent"), Lasso Acquisition Corporation, a Delaware corporation
("Merger Co."), and the Company providing for the merger of the Company with and
into Merger Co. (the "Merger"), and as a result of the Merger, I may receive
shares of Parent's Class A Common Stock, par value $0.10 per share (the "Parent
Securities"), in exchange for the shares of common stock, par value $0.05 per
share, of the Company owned by me at the Effective Time (as defined in the
Merger Agreement) of the Merger.
I represent and warrant to Parent that in such event:
A. I shall not make any sale, transfer or other disposition of the
Parent Securities in violation of the Act or the Rules and Regulations.
B. I have carefully read this letter and the Merger Agreement and
discussed its requirements and other applicable limitations upon my ability to
sell, transfer or otherwise dispose of Parent Securities, to the extent I felt
necessary, with my counsel or counsel for the Company.
C. I have been advised that the issuance of Parent Securities to me
pursuant to the Merger has been registered with the Commission under the Act on
a Registration Statement on Form S-4. However, I have also been advised that,
since at the time the Merger was submitted for a vote of the stockholders of the
Company I may have been deemed to have been an affiliate of the Company and a
distribution by me of Parent Securities has not been registered under the Act,
the Parent Securities must be held by me indefinitely unless (i) a distribution
of Parent Securities by me has been registered under the Act, (ii) a sale of
Parent Securities by me is made in conformity with the volume and other
limitations of Rule 145 promulgated by the Commission under the Act or (iii) in
the opinion of counsel reasonably acceptable to Parent, some other
<PAGE>
exemption from registration is available with respect to a proposed sale,
transfer or other disposition of the Parent Securities by me.
D. I understand that Parent is under no obligation to register
the sale, transfer or other disposition of Parent Securities by me or on my
behalf or to take any other action necessary in order to make compliance with an
exemption from registration available.
E. I also understand that stop transfer instructions will be
given to Parent's transfer agents with respect to the Parent Securities and that
there will be placed on the certificates for the Parent Securities, or any
substitutions therefor, a legend stating in substance.
"The shares represented by this certificate were issued in a
transaction to which Rule 145 promulgated under the Securities Act of
1933, as amended, applies."
F. I also understand that unless the transfer by me of my
Parent Securities has been registered under the Act or is a sale made in
conformity with the provisions of Rule 145, Parent reserves the right to put the
following legend on the certificates issued to my transferee:
"The shares represented by this certificate have not been
registered under the Securities Act of 1933, as amended, and were
acquired from a person who received such shares in a transaction to
which Rule 145 promulgated under such Act applies. The shares have been
acquired by the holder not with a view to, or for resale in connection
with, any distribution thereof within the meaning of such Act and may
not be sold, pledged or otherwise transferred except in accordance with
an exemption from the registration requirements of such Act."
-2-
<PAGE>
It is understood and agreed that the legends set forth in paragraph E
and F above shall be removed by delivery of substitute certificates without such
legend if the undersigned shall have delivered to Parent a copy of a letter from
the staff of the Commission, or an opinion of counsel reasonably acceptable to
Parent to the effect that such legend is not required for purposes of the Act.
Very truly yours,
-------------------------------
Name:
Accepted this ____ day of
__________, ____, by:
TYSON FOODS, INC.
By____________________________
Name:
Title:
-3-
<PAGE>
EXHIBIT B
---------
VOTING AGREEMENT
In consideration of Tyson Foods, Inc., a Delaware corporation
("Parent"), and Lasso 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"), the
undersigned holder (the "Stockholder") of shares of Schedule A Securities (as
defined below) agrees with the Company as follows:
1. During the period (the "Agreement Period") beginning on the date
hereof and ending on the earlier of (i) the date of any substantive amendment to
the Merger Agreement which has not been approved in writing by the Stockholder
and (ii) the date of termination of the Merger Agreement, the Stockholder hereby
agrees to vote the shares of Parent's Class B Common Stock set forth opposite
its name in Schedule A hereto (the "Schedule A Securities") to approve the
issuance of Parent's Class A Common Stock with respect to the Exchange Offer and
the Merger at the Parent Stockholder Meeting (each as defined in the Merger
Agreement), and at any adjournment thereof or pursuant to action by written
consent, at or by which such action is submitted for the consideration and vote
of the stockholders of Parent.
2 The Stockholder hereby represents and warrants to the Company that as
of the date hereof:
(a) The Stockholder (i) owns beneficially all of the shares of
Schedule A Securities set forth opposite the Stockholder's name in
Schedule A hereto, and no other shares of Schedule A Securities, (ii)
has the full and unrestricted legal power, authority and right to enter
into, 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 Parent in respect of this
Agreement based upon any arrangement or agreement made by or on behalf
of the Stockholder.
3. 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.
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<PAGE>
4. 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.
5. 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.
6. This Voting Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware.
7. 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.
8. This Agreement shall terminate upon the termination of the Agreement
Period.
9. 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 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. The Company understands and
acknowledges 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.
10. 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.
11. 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 the Company, to:
Robert L. Peterson, Chairman of the Board
5
<PAGE>
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
If to the Stockholder:
Don Tyson
Tyson Limited Partnership
2210 West Oaklawn Drive
Springdale, AR 72762-6999
(501) 290-4028
with a copy to:
Les Baledge, Esq.
Tyson Foods, Inc.
2210 West Oaklawn Drive
Springdale, AR 72762-6999
(501) 290-4028
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
6
<PAGE>
confirmation is received or (b) if given by any other means, when delivered at
the address specified in this Section.
7
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Voting Agreement as of
the [______] day of January, 2001.
IBP, inc.
By:___________________________
Name:
Title:
TYSON LIMITED PARTNERSHIP
By: __________________________
Name: Don Tyson
Title: Managing General Partner
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<PAGE>
SCHEDULE A
SHARES OF TYSON
STOCKHOLDER CLASS B COMMON STOCK
----------- --------------------
Tyson Limited Partnership 102,598,560
