EXHIBIT 99.1
CONFORMED COPY
STOCK VOTING AGREEMENT
STOCK VOTING AGREEMENT (this "Agreement"), dated as of
September 4, 1997 by and between Xxxxx X. Xxxxxx ("Stockholder") and Tyson
Foods, Inc., a Delaware corporation ("Parent").
WHEREAS, concurrently herewith, Parent, HFI Acquisition Sub
Inc., a Delaware corporation and a wholly owned subsidiary of Parent (the
"Purchaser"), and Xxxxxx Foods, Inc., a Delaware corporation (the "Company"),
are entering into an Agreement and Plan of Merger of even date herewith (such
Agreement in the form attached hereto as Exhibit A being the "Merger
Agreement"), pursuant to which the Company will merge with and into the
Purchaser (the "Merger"); and
WHEREAS, Stockholder owns as of the date hereof, 56,028
shares of Class A common stock, $.01 par value per share (the "Class A Common
Stock"), of the Company and 7,650,000 shares of Class B common stock, $.01 par
value per share (the "Class B Common Stock"), of the Company (such Class A
Common Stock and Class B Common Stock collectively referred to as the
"Existing Shares," and together with any shares of Class A Common Stock and/or
Class B Common Stock acquired after the date hereof and prior to the
termination hereof, hereinafter collectively referred to as the "Shares"); and
WHEREAS, Parent and the Purchaser have entered into the
Merger Agreement in reliance on and in consideration of Stockholder's
representations, warranties, covenants and agreements hereunder.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements herein contained and other good and valuable consideration, and
intending to be legally bound hereby, it is agreed as follows:
1. Agreement to Vote. Stockholder hereby revokes any and all previous
proxies with respect to the Shares and irrevocably agrees to vote and
otherwise act (including pursuant to written consent) with respect to all of
the Shares, for the approval and the adoption of the Merger Agreement, as the
same may be amended from time to time, all agreements related to the Merger
and any actions related thereto, and against any proposal or transaction which
could prevent or delay the consummation of the transactions contemplated by
this Agreement or the Merger Agreement, at any meeting or meetings of the
stockholders of the Company, and at any adjournment, postponement or
continuation thereof, at which the Merger Agreement and other related
agreements (or any amended version or versions thereof), or such other actions
are submitted for the consideration and vote of the stockholders of the
Company. The foregoing shall remain in effect with respect to the Shares
until the termination of this Agreement. Stockholder hereby agrees to,
execute such additional documents as Parent may reasonably request to
effectuate the foregoing.
2. Representations and Warranties of Stockholder. Stockholder
represents and warrants to Parent as follows:
2.1 Ownership of Shares. On the date hereof, the Existing
Shares are all of the Shares currently owned by Stockholder. On the Closing
Date, the Shares will constitute all of the shares of Class A Common Stock and
Class B Common Stock owned by Stockholder. On the date hereof and on the date
of the Company Stockholders Meeting (as defined in the Merger Agreement), the
Existing Shares represent, and will represent, at least 65% of the outstanding
voting power of the Company, and are, and will be, sufficient, to adopt and
approve the Merger Agreement and the transactions contemplated thereby,
including the Merger. Stockholder does not have any rights to acquire any
additional shares of Class A Common Stock or Class B Common Stock (other than
pursuant to options disclosed in the Company's Proxy Statement dated December
31, 1996). Stockholder currently has, and at Closing will have (other than
Shares transferred in accordance with Section 3.2 hereof), good, valid and
marketable title to the Shares, free and clear of all liens, encumbrances,
restrictions, options, warrants, rights to purchase and claims of every kind
(other than the encumbrances created by this Agreement and other than
restrictions on transfer under applicable Federal and State securities laws).
2.2 Authority; Binding Agreement. Stockholder has the full
legal right, power and authority to enter into and perform all of his
obligations under this Agreement. The execution and delivery of this
Agreement by Stockholder will not violate any other agreement to which
Stockholder is a party including, without limitation, any voting agreement,
stockholders agreement or voting trust. This Agreement has been duly executed
and delivered by Stockholder and constitutes a legal, valid and binding
agreement of Stockholder, enforceable in accordance with its terms, except as
the enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium and similar laws, now or hereafter in effect
affecting creditors' rights and remedies generally or general principles of
equity. Neither the execution and delivery of this Agreement nor the
consummation by Stockholder of the transactions contemplated hereby will (i)
violate, or require any consent, approval or notice under, any provision of
any judgment, order, decree, statute, law, rule or regulation applicable to
Stockholder or the Shares or (ii) constitute a violation of, conflict with or
constitute a default under, any contract, commitment, agreement,
understanding, arrangement or other restriction of any kind to which
Stockholder is a party or by which Stockholder is bound.
2.3 Reliance on Agreement. Stockholder understands and
acknowledges that the Purchaser and Parent each are entering into the Merger
Agreement in reliance upon Stockholder's execution and delivery of this
Agreement. Stockholder acknowledges that the agreement set forth in Section 1
is granted in consideration for the execution and delivery of the Merger
Agreement by the Purchaser and Parent.
3. Certain Covenants of Stockholder. Except in accordance with the
provisions of this Agreement, Stockholder agrees with, and covenants to,
Parent as follows:
3.1 Transfer. Stockholder shall not (i) except as set forth in
Section 3.2 below, transfer (which term shall include, without limitation, for
the purposes of this Agreement, any sale, gift, pledge, assignment,
encumbrance or other disposition) or consent to any transfer of, any or all of
the Shares or any interest therein, except pursuant to the Merger, (ii) enter
into any contract, option or other agreement or understanding with respect to
any transfer of any or all such Shares or any interest therein, (iii) grant
any proxy, power-of-attorney or other authorizations in or with respect to
such Shares or (iv) deposit such Shares into a voting trust or enter into a
voting agreement or arrangement with respect to the Shares. Stockholder will
submit to the Company, promptly after the execution of this Agreement, any and
all certificates representing the Shares and Stockholder agrees with, and
consents to (i) the inscription on all such certificates prior to their prompt
return to Stockholder of the following legend by the Company on such
certificates: "The shares of Common Stock, $.01 par value, of Xxxxxx Foods,
Inc., represented by this certificate are subject to a Stock Voting Agreement,
dated as of September 4, 1997, and may not be sold or otherwise transferred,
except in accordance therewith. Copies of such Agreement may be obtained at
the principal executive office of Xxxxxx Foods, Inc., 0000 Xxxxxx Xxxx,
Xxxxxx, Xxxxxxxx 00000. Such restrictions on sale or other transfer expire
and terminate, whether or not this legend remains on any certificate
representing such shares of Common Stock and without any notice, action or
demand of any person, on the date such Agreement terminates"; and (ii) the
entering of stop transfer orders with the transfer agent and the registrar of
the Company against the transfer of the Shares other than in compliance with
the requirements of this Agreement, such stop transfer orders to expire by
their terms on the date this Agreement terminates with no notice, action or
demand by Stockholder, Parent or the Company.
3.2 Permitted Transfer. Notwithstanding Section 3.1 hereof to
the contrary, Stockholder may transfer any of the Shares to a Permitted
Transferee (as defined in the Certificate of Incorporation of the Company in
effect on the date hereof) provided that (a) at least thirty (30) days prior
to any such transfer, Stockholder shall provide at his expense a written
opinion of nationally recognized tax counsel, in form and substance reasonably
acceptable to Parent, that such transfer will not adversely affect the
treatment of the Merger as a reorganization within the meaning of Section 368
of the Internal Revenue Code of 1986, as amended, (b) prior to any such
transfer, such Permitted Transferee shall agree in writing to take such Shares
subject to, and comply with, all of the provisions of this Agreement, a copy
of which writing shall be delivered to Parent, and (c) immediately after any
such transfer, the shares of Class A Common Stock and Class B Common Stock
owned by Stockholder shall represent at least a majority of the outstanding
voting power of the Company and shall be sufficient to adopt and approve the
Merger Agreement and the transactions contemplated thereby, including the
Merger.
3.3 Solicitation. Prior to the Effective Time, Stockholder
agrees that he shall not, and he shall use his reasonable best efforts to
cause his affiliates, and their respective agents or representatives not to,
directly or indirectly, (i) solicit or initiate (including by way of
furnishing or disclosing non-public information) any inquiries or the making
of any proposal with respect to any merger, consolidation or other business
combination involving the Company or any subsidiary of the Company or the
acquisition of all or any significant part of the assets or capital stock of
the Company, including the Shares, or any Subsidiary of the Company (other
than the sale by the Company (y) of its Columbus, Nebraska beef processing
plant and (z) the Company's minority interest in Diversity Foods LLC) (an
"Acquisition Transaction") or (ii) negotiate, explore or otherwise engage in
discussions with any person (other than Parent and its representatives) with
respect to any Acquisition Transaction, or which may reasonably be expected to
lead to a proposal for an Acquisition Transaction or enter into any agreement,
arrangement or understanding with respect to any such Acquisition Transaction
or which would require it to abandon, terminate or fail to consummate the
Merger or any other transaction contemplated by this Agreement.
3.4 Notifications. Stockholder shall, while this Agreement is
in effect, notify Parent promptly, but in no event later than two days, of the
number of any shares of Class A Common Stock or Class B Common Stock acquired
by Stockholder after the date hereof.
4. Delivery of Affiliate Letter. In connection with the execution of
this Agreement, Stockholder shall execute and deliver to Parent on the date
hereof an Affiliate Letter substantially in the form attached hereto as
Exhibit A.
5. Termination. This Agreement shall terminate on the earlier of (i)
the Effective Time (as defined in the Merger Agreement) or (ii) immediately
after the termination of the Merger Agreement in accordance with its terms.
6. Action in Stockholder Capacity Only. Stockholder makes no
agreement or understanding herein as director or officer of the Company. The
Stockholder signs solely in his capacity as a recordholder and beneficial
owner of the Shares, and nothing herein shall limit or affect any actions
taken in his capacity as an officer or director of the Company.
7. Miscellaneous.
7.1 Notices. All notices, requests, claims, demands and other
communications under this Agreement shall be in writing and shall be delivered
personally or by next-day courier or telecopied with confirmation of receipt,
to the parties at the addresses specified below (or at such other address for
a party as shall be specified by like notice; provided that notices of a
change of address shall be effective only upon receipt thereof). Any such
notice shall be effective upon receipt, if personally delivered or telecopied
or one day after delivery to a courier for next-day delivery.
If to Parent:
Tyson Foods, Inc.
0000 Xxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Executive Vice President and
Chief Financial Officer
Telecopier: (000) 000-0000
with a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Xxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx, Esq.
Telecopier: (000) 000-0000
If to Stockholder:
Xxxxx X. Xxxxxx
00 Xxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxx 00000
Telecopier: (000) 000-0000
7.2 Entire Agreement. This Agreement, together with the
documents expressly referred to herein, constitute the entire agreement and
supersede all other prior agreements and understandings, both written and oral,
among the parties or any of them, with respect to the subject matter contained
herein.
7.3 Amendments. This Agreement may not be modified, amended,
altered or supplemented, except upon the execution and delivery of a written
agreement executed by the parties hereto.
7.4 Assignment. This Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective successors, assigns
and personal representatives, but neither this Agreement nor any of the
rights, interests or obligations hereunder shall be assigned by any of the
parties hereto without the prior written consent of the other parties.
7.5 Governing Law. This Agreement, and all matters relating
hereto, shall be governed by, and construed in accordance with the laws of the
State of Delaware without giving effect to the principles of conflicts of laws
thereof.
7.6 Injunctive Relief; Jurisdiction. Stockholder agrees that
irreparable damage would occur and that Parent would not have any adequate
remedy at law in the event that any of the provisions of this Agreement were
not performed in accordance with their specific terms or were otherwise
breached. It is accordingly agreed that Parent shall be entitled to an
injunction or injunctions to prevent breaches by Stockholder of this Agreement
and to enforce specifically the terms and provisions of this Agreement in any
court of the United States located in the State of Delaware or in any Delaware
state court (collectively, the "Courts"), this being in addition to any other
remedy to which they are entitled at law or in equity. In addition, each of
the parties hereto (i) irrevocably consents to the submission of such party to
the personal jurisdiction of the Courts in the event that any dispute arises
out of this Agreement or any of the transactions contemplated hereby, (ii)
agrees that such party will not attempt to deny or defeat such party to the
personal jurisdiction by motion or other request for leave from any of the
Courts and (iii) agrees that such party will not bring any action relating to
this Agreement or any of the transactions contemplated hereby in any court
other the Courts. Stockholder hereby appoints, and shall give prompt notice
of such appointment to, CT Corporation System as his authorized agent (the
"Authorized Agent") upon which process may be served in any action based on
this Agreement which may be instituted in the Courts by Parent, and
Stockholder expressly accepts the jurisdiction of any such Court in respect to
such action. Such appointment shall be irrevocable. Stockholder represents
and warrants that the Authorized Agent has agreed to act as said agent for
service of process, and Stockholder agrees to take any and all action,
including, without limitation, the filing of any and all documents and
instruments, which may be necessary to continue such appointment in full force
and effect. Service of process upon the Authorized Agent and written notice
of such service to Stockholder shall be deemed, in every respect, effective
service of process upon Stockholder.
7.7 Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be deemed to be an original and all of
which together shall constitute one and the same document.
7.8 Severability. Any term or provision of this Agreement which
is invalid or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity or
unenforceability without rendering invalid or unenforceable the remaining terms
and provisions of this Agreement or affecting the validity or enforceability
of any of the terms or provisions of this Agreement in any other jurisdiction.
If any provision of this Agreement is so broad as to be unenforceable, such
provision shall be interpreted to be only so broad as is enforceable.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed, as of the date and year first above written.
TYSON FOODS, INC.
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: Chairman and Chief
Executive Officer
/s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx
