Exhibit 8
TENDER AGREEMENT
TENDER AGREEMENT dated as of March 25, 1997 (this "Agree-
ment"), among IBP, inc., a Delaware corporation (the "Parent"),
IBP Sub, Inc., a Delaware corporation and a wholly owned subsid-
iary of the Parent ("Purchaser"), and Xxxxxx Xxxxxxxxxx & Xxxx,
X.X., a Delaware limited partnership, and Xxxxxx, Xxxxxxxxxx &
Levy Fund II, L.P., a Delaware limited partnership (together, the
"Stockholder").
WHEREAS, concurrently with the execution and delivery of
this Agreement the Parent, Purchaser and Foodbrands America,
Inc., a Delaware corporation (the "Company"), have entered into
an Agreement and Plan of Merger dated as of the date hereof (such
Agreement and Plan of Merger, as amended from time to time, the
"Merger Agreement"), which provides, among other things, that
Purchaser shall make the Offer (as defined in the Merger Agree-
ment) to purchase at a price of $23.40 per share, net to the
sellers in cash, all of the issued and outstanding shares of the
Company's Common Stock, par value $.01 per share (the "Company
Common Stock"), and shall merge with and into the Company (the
"Merger"), upon the terms and subject to the conditions set forth
in the Merger Agreement (any term used herein without definition
shall have the definition ascribed thereto in the Merger Agree-
ment);
WHEREAS, the Stockholder owns beneficially and of record
shares of Company Common Stock (such shares of Company Common
Stock being collectively referred to herein as the "Stockholder
Shares" or individually referred to herein as the "Stockholder
Share") and;
WHEREAS, as a condition to the willingness of the Parent and
Purchaser to enter into the Merger Agreement, and as an induce-
ment to them to do so, the Stockholder has agreed for the benefit
of the Parent and Purchaser to tender the Stockholder Shares and
any other shares of Company Common Stock at any time during the
term of this Agreement held by the Stockholder, pursuant to the
Offer, to vote all the Stockholder Shares and any other shares of
Company Common Stock owned by the Stockholder in favor of the
Merger, and to grant to Purchaser an option to acquire all
Stockholder Shares and all other shares of Company Common Stock
owned by the Stockholder under certain circumstances, all on the
terms and conditions contained in this Agreement.
NOW, THEREFORE, in consideration of the representations,
warranties, covenants and agreements contained in this Agreement,
the parties hereby agree as follows:
ARTICLE I
Tender Offer and Option
SECTION 1.01. Tender of Shares. (a) Within five business
days of the commencement by Purchaser of the Offer, the Stock-
holder shall tender to the Depository designated in the Offer to
Purchase (the "Offer to Purchase") distributed by Purchaser in
connection with the Offer (i) a letter of transmittal with
respect to the Stockholder Shares and any other shares of Company
Common Stock held by the Stockholder (whether or not currently
held by the Stockholder; the Stockholder Shares, together with
any shares acquired by the Stockholder in any capacity after the
date hereof and prior to the termination of this Agreement
whether upon the exercise of options, warrants or rights, the
conversion or exchange of convertible or exchangeable securities,
or by means of purchase, dividend, distribution or otherwise (the
"Shares"), complying with the terms of the Offer to Purchase,
(ii) the certificates representing the Shares, and (iii) all
other documents or instruments required to be delivered pursuant
to the terms of the Offer to Purchase.
(b) The Stockholder shall not, subject to applicable law,
withdraw the tender effected in accordance with Section 1.01(a);
provided, however, that the Stockholder may decline to tender, or
may withdraw, any and all Shares owned by the Stockholder if the
Purchaser amends the Offer to (w) reduce the Offer Price to less
than $23.40 in cash, net to the stockholders, (x) reduce the
number of shares of Company Common Stock subject to the Offer,
(y) change the form of consideration payable in the Offer or (z)
amend or modify any term or condition of the Offer in a manner
adverse to the stockholders of the Company (other than insignifi-
cant changes or amendments or other than to waive any condition).
The Stockholder shall give Purchaser at least two business days'
prior notice of any withdrawal of Shares owned by the Stockholder
pursuant to the immediately preceding proviso.
SECTION 1.02. Option. (a) The Stockholder hereby irrevoca-
xxx grants Purchaser an option (the "Option"), exercisable only
upon the events and subject to the conditions set forth herein,
to purchase any or all of the Shares at a purchase price per
share equal to $23.40 (or such higher per share price as may be
offered by Purchaser in the Offer).
(b) Subject to the conditions set forth in Section 1.03 and
the termination provisions of Section 6.07, Purchaser may exer-
cise the Option in whole or in part at any time prior to the date
60 days after the expiration or termination of the Offer (such
sixtieth day being herein called the "Option Expiration Date") if
(x) the Stockholder fails to comply with any of its obligations
under this Agreement or withdraws the tender of the Shares except
under the circumstances set forth in the proviso to Section
1.01(b) (but the Option shall not limit any other right or remedy
available to the Parent or Purchaser against the Stockholder for
breach of this Agreement) or (y) the Offer is not consummated
because of the failure to satisfy any of the conditions to the
Offer set forth in Annex A to the Merger Agreement (other than as
a result of any action or inaction of the Parent or Purchaser
which constitutes a breach of the Merger Agreement).
Upon the occurrence of any of such circumstances,
Purchaser shall be entitled to exercise the Option and (subject
to Section 1.03) Purchaser shall be entitled to purchase the
Shares and the Stockholder shall sell the Shares to Purchaser.
Purchaser shall exercise the Option by delivering written notice
thereof to the Stockholder (the "Notice"), specifying the number
of Shares to be purchased and the date, time and place for the
closing of such purchase which date shall not be less than three
business days nor more than five business days from the date the
Stockholder receives the Notice and in no event shall such date
be later than the Option Expiration Date. The closing of the
purchase of Shares pursuant to this Section 1.02 (the "Closing")
shall take place on the date, at the time and at the place
specified in such notice; provided, that if at such date any of
the conditions specified in Section 1.03 shall not have been
satisfied (or waived), Purchaser may postpone the Closing until a
date within five business days after such conditions are satis-
fied (but not later than the Option Expiration Date).
(c) At the Closing, the Stockholder will deliver to Pur-
chaser (in accordance with Purchaser's instructions) the certifi-
xxxxx representing the Shares owned by the Stockholder and being
purchased pursuant to Section 1.02(c), duly endorsed or accompa-
xxxx by stock powers duly executed in blank. At such Closing,
Purchaser shall deliver to the Stockholder, by bank wire transfer
of immediately available funds, an amount equal to the number of
Shares being purchased from the Stockholder as specified in the
Notice multiplied by $23.40 (or such higher per share price as
may be offered by Purchaser in the Offer).
SECTION 1.03. Conditions to Option. The obligation of
Purchaser to purchase the Shares at the Closing is subject to the
following conditions:
(a) all waiting periods under the Xxxx-Xxxxx-Xxxxxx
Antitrust Improvements Act of 1976 and the rules and regula-
tions promulgated thereunder (the "HSR Act") applicable to
such purchase shall have expired or been terminated; and
(b) there shall be no preliminary or permanent injunc-
tion or other order, decree or ruling issued by any Govern-
mental Entity, nor any statute, rule, regulation or order
promulgated or enacted by any Governmental Entity prohibit-
ing, or otherwise restraining, such purchase.
SECTION 1.04. No Purchase. Purchaser may allow the Offer
to expire without accepting for payment or paying for any Shares,
on the terms and conditions set forth in the Offer to Purchase,
and may allow the Option to expire without exercising the Option
and purchasing all or any Shares pursuant to such exercise. If
all Shares validly tendered and not withdrawn are not accepted
for payment and paid for in accordance with the terms of the
Offer to Purchase or pursuant to the exercise of the Option, they
shall be returned to the Stockholder, whereupon they shall
continue to be held by the Stockholder subject to the terms and
conditions of this Agreement.
ARTICLE II
Consent and Voting
The Stockholder hereby revokes any and all previous proxies
granted with respect to the Shares owned by the Stockholder. By
entering into this Agreement, the Stockholder hereby consents to
the Merger Agreement and the transactions contemplated thereby,
including the Merger. So long as the Merger Agreement is in
effect, the Stockholder hereby agrees (i) to vote all Shares now
or hereafter owned by such Stockholder or execute a consent and
not revoke any proxy, vote or consent, in favor of the Merger
Agreement, the Merger and the transactions contemplated thereby,
and (ii) to oppose any Acquisition Proposal and to vote all
Shares now or hereafter owned by such Stockholder, or execute a
consent, against any Acquisition Proposal.
ARTICLE III
Representations, Warranties and Covenants
of the Stockholder
The Stockholder represents, warrants and covenants to the
Purchaser that:
SECTION 3.01. Ownership. As of the date hereof the Stock-
holder is the sole, true, lawful and beneficial owner of
5,515,833 Shares and that there are no restrictions on voting
rights or rights of disposition pertaining to such Shares other
than those specified herein or any applicable provisions of
Article Fifth of the Company's Amended and Restated Certificate
of Incorporation. To the extent permitted by Article Fifth of
the Company's Amended and Restated Certificate of Incorporation,
the Stockholder will convey good and valid title to the Shares
owned by the Stockholder and being acquired pursuant to the
Offer, the Merger or the exercise of the Option, as the case may
be, free and clear of any and all liens, restrictions, security
interests or any encumbrances whatsoever (collectively, "Liens").
None of the Shares owned by the Stockholder is subject to any
voting trust or other agreement, arrangement or restriction with
respect to the voting of such Shares. Until this Agreement is
terminated, the Stockholder shall not, directly or indirectly,
sell, exchange, encumber, pledge, assign or otherwise transfer or
dispose of, or agree to or solicit any of the foregoing, or grant
any right or power to any person that limits the Stockholder's
sole power to vote, sell, assign, transfer, pledge, encumber or
otherwise dispose of the Shares owned by the Stockholder or
otherwise directs the Stockholder with respect to such Shares.
SECTION 3.02. Authority and Non-Contravention. The execu-
tion, delivery and performance by the Stockholder of this Agree-
ment and the consummation of the transactions contemplated hereby
(i) are within the Stockholder's power and authority, have been
duly authorized by all necessary action (including any consulta-
tion, approval or other action by or with any other person),
(ii) require no action by or in respect of, or filing with, any
Governmental Entity (except as may be required under the HSR Act
and under the Securities Exchange Act of 1934, as amended, and
the rules and regulations promulgated thereunder (the "Exchange
Act")), and (iii) do not and will not contravene or constitute a
default under, or give rise to a right of termination, cancella-
tion or acceleration of any right or obligation of the Stockhold-
er or to a loss of any benefit of the Stockholder under, any
provision of applicable law or regulation or any agreement,
judgment, injunction, order, decree, or other instrument binding
on the Stockholder or result in the imposition of any Lien on any
assets of the Stockholder.
SECTION 3.03. Binding Effect. This Agreement has been duly
executed and delivered by the Stockholder and is the valid and
binding agreement of the Stockholder, enforceable against it in
accordance with its terms, except as enforcement may be limited
by bankruptcy, insolvency, moratorium or other similar laws
relating to creditors' rights generally.
SECTION 3.04. Total Shares. The Stockholder Shares owned
by the Stockholder are the only shares of Company Common Stock
beneficially owned as of the date hereof by the Stockholder and
the Stockholder has no option to purchase or right to subscribe
for or otherwise acquire any securities of the Company and has no
other interest in or voting rights with respect to any other
securities of the Company.
SECTION 3.05. Finder's Fees. No investment banker, broker
or finder is entitled to a commission or fee from Purchaser or
the Company in respect of this Agreement based upon any arrange-
ment or agreement made by or on behalf of the Stockholder, except
as otherwise disclosed in the Merger Agreement.
ARTICLE IV
Representations, Warranties and Covenants
of the Parent and Purchaser
The Parent and Purchaser represent, warrant and covenant to
the Stockholder:
SECTION 4.01. Corporate Power and Authority;
Noncontravention. The Parent and Purchaser have all requisite
corporate power and authority to enter into this Agreement and to
perform their obligations hereunder. The execution, delivery and
performance by the Parent and Purchaser of this Agreement and the
consummation by the Parent and Purchaser of the transactions
contemplated hereby (i) have been duly authorized by all neces-
sary corporate action on the part of the Parent and Purchaser,
(ii) require no action by or in respect of, or filing with, any
Governmental Entity (except as may be required under the HSR Act
and under the Exchange Act, or (iii) do not and will not contra-
vene or constitute a default under, the certificate of incorpora-
tion or by-laws of Parent or Purchaser or any provision of
applicable law or regulation or any, judgment, injunction, order,
decree, material agreement or other material instrument binding
on the Parent or Purchaser.
SECTION 4.02. Binding Effect. This Agreement has been duly
executed and delivered by the Parent and Purchaser and is a valid
and binding agreement of the Parent and Purchaser, enforceable
against each of them in accordance with its terms, except as
enforcement may be limited by bankruptcy, insolvency, moratorium
or other similar laws relating to creditors' rights generally.
SECTION 4.03. Acquisition for Purchaser's Account. Any
Shares to be acquired upon consummation of the Offer, or upon
exercise of the Option will be acquired by Purchaser for its own
account and not with a view to the public distribution thereof
and will not be transferred except in compliance with the Securi-
ties Act and the rules and regulations promulgated thereunder.
ARTICLE V
Additional Agreements
SECTION 5.01. Agreements of Stockholder. The Stockholder
hereby covenants and agrees that:
(a) No Solicitation. The Stockholder shall not di-
rectly or indirectly (i) solicit, initiate or knowingly
encourage (or authorize any person to solicit, initiate or
encourage) any Acquisition Proposal, or (ii) participate in
any discussion or negotiations regarding, or furnish to any
other person any information with respect to, or otherwise
knowingly cooperate in any way with, or participate in,
facilitate or encourage any effort or attempt by any other
person to do or seek the foregoing. The Stockholder shall
promptly advise the Purchaser of the terms of any communica-
tions it or any of its affiliates may receive relating to
any Acquisition Proposal (including, without limitation, the
identify of the party making any such Acquisition Proposal).
(b) Adjustment upon Changes in Capitalization or
Merger. In the event of any change in the Company's capital
stock by reason of stock dividends, stock splits, mergers,
consolidations, recapitalization, combinations, conversions,
exchanges of shares, extraordinary or liquidating dividends,
or other changes in the corporate or capital structure of
the Company which would have the effect of diluting or
changing Purchaser's rights hereunder, the number and kind
of shares or securities subject to this Agreement and the
price set forth herein at which Shares may be purchased from
the Stockholder pursuant to the Offer or the exercise of the
Option shall be appropriately and equitably adjusted so that
Purchaser shall receive pursuant to the Offer or the exer-
cise of the Option the number and class of shares or other
securities or property that Purchaser would have received in
respect of the Shares purchasable pursuant to the Offer or
the exercise of the Option if such purchase had occurred
immediately prior to such event.
ARTICLE VI
Miscellaneous
SECTION 6.01. Expenses. All costs and expenses incurred in
connection with this Agreement shall be paid by the party incur-
ring such cost or expense.
SECTION 6.02. Further Assurances. The Parent, Purchaser
and the Stockholder will execute and deliver or cause to be
executed and delivered all further documents and instruments and
use its reasonable best efforts to secure such consents and take
all such further action as may be reasonably necessary in order
to consummate the transactions contemplated hereby and by the
Merger Agreement.
SECTION 6.03. Additional Agreements. Subject to the terms
and conditions of this Agreement, each of the parties hereto
agrees to use all 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 regula-
tions and which may be required under any agreements, contracts,
commitments, instruments, understandings, arrangements or re-
strictions of any kind to which such party is a party or by which
such party is governed or bound, to consummate and make effective
the transactions contemplated by this Agreement.
SECTION 6.04. Specific Performance. The parties acknowl-
edge and agree that performance of their respective obligations
hereunder will confer a unique benefit on the other and that a
failure of performance will not be compensable by money damages.
The parties therefore agree that this Tender Agreement shall be
specifically enforceable and that specific enforcement and
injunctive relief shall be available to the Parent, Purchaser or
the Stockholder for any breach by the other party or parties of
any agreement, covenant or representation hereunder.
SECTION 6.05. Notices. All notices, requests, claims,
demands and other communications hereunder shall be deemed to
have been duly given when delivered in person, by telecopy, or by
registered or certified mail (postage prepaid, return receipt
requested) to such party at its address set forth on the signa-
ture page hereto.
SECTION 6.06. Survival of Representations and Warranties.
All representations and warranties contained in this Agreement
shall survive delivery of and payment for the Shares pursuant to
Section 1.02 hereof. None of the representations and warranties
contained in this Agreement shall survive the acceptance for
payment and payment for the Shares pursuant to the Offer.
SECTION 6.07. Amendments; Termination. 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. Notwithstanding anything herein to the contrary,
this Agreement shall expire and be of no further force or effect
if (i) the conditions to the Purchaser's obligations to accept
for payment and pay for Shares pursuant to the Offer shall have
been satisfied and the Purchaser breaches any obligation of
Purchaser under the Merger Agreement to accept for payment and
promptly pay for all Shares validly tendered and not withdrawn
pursuant to the Offer upon expiration of the Offer or (ii)
Purchaser amends the Offer to (w) reduce the Offer Price to less
than $23.40 in cash, net to the sellers, (x) reduce the number of
shares of Company Common Stock subject to the Offer, (y) change
the form of consideration payable in the Offer or (z) amend or
modify any term or condition of the Offer in a manner adverse to
the stockholders of the Company (other than insignificant changes
or amendments or other than to waive any condition). This
Agreement will also terminate upon the earlier of (i) the close
of business on September 24, or (ii) the Effective Time.
SECTION 6.08. Successors and Assigns. 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, however, that Purchaser may assign its rights and
obligations to another wholly-owned subsidiary of the Parent
which is the assignee of Purchaser's rights under the Merger
Agreement; and provided further that except as set forth in the
prior clause, a party may not assign, delegate or otherwise
transfer any of its rights or obligations under this Agreement
without the consent of the other parties hereto and any purported
assignment, delegation or transfer without such consent shall be
null and void.
SECTION 6.09. Governing Law. This Agreement shall be
construed in accordance with and governed by the law of Delaware
without giving effect to the principles of conflicts of laws
thereof.
SECTION 6.10. Counterparts; Effectiveness. This Agreement
may be signed in any number of counterparts, each of which shall
be an original, with the same effects as if the signatures
thereto and thereof were upon the same instrument. This Agree-
ment shall become effective when each party hereto shall have
received counterparts hereof signed by all of the other parties
hereto.
SECTION 6.11. Stockholder Capacity. The Stockholder signs
solely in its capacity as the record holder and beneficial owner
of the Shares and nothing herein shall limit or affect any
actions taken by any officer, director, partner, employee or
affiliate of the Stockholder in his or her capacity as an officer
or director of the Company and no such actions shall be deemed a
breach of this Agreement.
SECTION 6.12. Severability. If any term or other provision
of this Agreement is invalid, illegal or incapable of being
enforced by any rule of law, or public policy, all other condi-
tions and provisions of this Agreement shall nevertheless remain
in full force and effect so long as the economic or legal sub-
stance of the transactions contemplated hereby are not affected
in any manner materially adverse to any party. Upon such deter-
mination that any term or other provision is invalid, illegal or
incapable of being enforced, the parties shall negotiate in good
faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible in a mutually
acceptable manner in order that the transactions be consummated
as originally contemplated to the fullest extent possible. To
the extent that any provision of this Agreement and the Merger
Agreement conflict, the provisions of the Merger Agreement shall
control.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the day and year first above
written.
IBP, inc.
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Chairman and Chief Execu-
tive Officer
Address for Notices:
XXX Xxxxxx
X.X. Xxx 000
Xxxxxx Xxxx, Xxxxxxxx 00000
Attn: Xxxxxx Xxxxxxx, Esq. (#141)
IBP SUB, INC.
By: /s/ Xxxxx Xxxxxxx
--------------------------------
Name: Xxxxx Xxxxxxx
Title: President
Address for Notices:
XXX Xxxxxx
X.X. Xxx 000
Xxxxxx Xxxx, Xxxxxxxx 00000
Attn: Xxxxxx Xxxxxxx, Esq. (#141)
XXXXXX XXXXXXXXXX & XXXX FUND, L.P.
By: JLL Associates, L.P., General
Partner
By /s/ Xxxxx X. Xxxxxx
----------------------------
Name: Xxxxx X. Xxxxxx
Title: General Partner
Address for Notices:
Xxxxxx Xxxxxxxxxx & Levy
000 Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx X. Xxxx
XXXXXX XXXXXXXXXX & LEVY FUND II,
L.P.
By: JLL Associates, L.P., General
Partner
By /s/ Xxxxx X. Xxxxxx
----------------------------
Name: Xxxx X. Xxxx
Title: General Partner
Address for Notices:
Xxxxxx Xxxxxxxxxx & Xxxx
000 Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx X. Xxxx
