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Exhibit (d)(5)
VOTING AGREEMENT
In consideration of Tyson Foods, Inc., a Delaware corporation ("Parent"), and
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Lasso Acquisition Corporation, a Delaware corporation and wholly-owned
subsidiary of Parent ("Merger Co."), entering into on the date hereof an
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Agreement and Plan of Merger (the "Merger Agreement") dated as of the date
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hereof with IBP, inc., a Delaware corporation (the "Company"), the undersigned
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holder (the "Stockholder") of shares of Schedule A Securities (as defined below)
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agrees with the Company as follows:
1. During the period (the "Agreement Period") beginning on the date
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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
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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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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
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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.
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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
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
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or such other address or telecopy or telephone number as such party may
hereafter specify for the purpose by notice to the other parties hereto. Each
such notice, request or other communication shall be effective (a) if given by
telecopy, when such telecopy is transmitted to the telecopy number specified in
this Section and the appropriate telecopy confirmation is received or (b) if
given by any other means, when delivered at the address specified in this
Section.
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IN WITNESS WHEREOF, the parties hereto have executed this Voting Agreement as of
the 1st day of January, 2001.
IBP, inc.
By:___________________________
Name:
Title:
TYSON LIMITED PARTNERSHIP
By: __________________________
Name: Don Tyson
Title: Managing General Partner
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SCHEDULE A
SHARES OF TYSON
STOCKHOLDER CLASS B COMMON STOCK
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Tyson Limited Partnership 102,598,560
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