Exhibit (d)(6)
December 18, 2000
Tyson Foods, Inc.
0000 Xxxx Xxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Ladies & Gentlemen:
In connection with a possible transaction involving Tyson Foods, Inc.
(the "Company") and us (a "Transaction"), the Company and its advisors and
agents are prepared to make available certain information which is non-public,
confidential or proprietary in nature.
By execution of this letter agreement (the "Agreement"), we agree to
treat confidentially all such information whether written or oral (the
"Evaluation Material"), and to observe the terms and conditions set forth
herein. We also agree that, subject to the fourth paragraph of this Agreement,
prior to giving any of our directors, officers, employees, partners, affiliates,
agents, advisors, potential sources of financing or refinancing, or
representatives (hereinafter, "Representatives") access to any of the Evaluation
Material, each such Representative shall be advised of the terms of this
Agreement.
For purposes of this Agreement, Evaluation Material shall mean all
information, data, reports, analyses, compilations, studies, interpretations,
projections, forecasts, records, and other materials (whether prepared by the
Company, its agents or advisors or otherwise and in whatever form maintained,
whether documentary, computerized or otherwise), regardless of the form of
communication, that contain or otherwise reflect information concerning the
Company that we or our Representatives may be provided by or on behalf of the
Company or its agents or advisors in the course of our evaluation of a possible
Transaction. The term "Evaluation Material" shall also include all information,
data, reports, analyses, computations, studies, interpretations, projections,
forecasts, records, notes, memoranda, summaries or other materials in whatever
form maintained, whether documentary, computerized or otherwise, whether
prepared by us or our Representatives, that contain or otherwise reflect any
such Evaluation Material (the "Notes"). This Agreement shall be inoperative as
to those particular portions of the Evaluation Material that (i) become
available to the public other than as a result of a disclosure by us or any of
our Representatives, (ii) were available to us on a non-confidential basis prior
to the disclosure of such Evaluation Material to us pursuant to this Agreement,
or (iii) becomes available to us or our Representatives on a non-confidential
basis from a source other than the Company or its agents or advisors provided
that the source of such information was not known by us to be contractually
prohibited from making such disclosure to us or such Representative.
We agree that we will not use the Evaluation Material for any purpose
other than in connection with a Transaction. We agree not to disclose or allow
disclosure to others of any Evaluation Material; PROVIDED that, subject to the
second paragraph of this Agreement, we may disclose Evaluation Material to our
Representatives to the extent necessary to permit such Representatives to assist
us in connection with a possible Transaction.
We understand and agree that none of the Company, its advisors or any
of their affiliates, agents, advisors or representatives (i) have made or make
any representation or warranty, expressed or implied, as to the accuracy or
completeness of the Evaluation Material or (ii) shall have any liability
whatsoever to us or our Representatives relating to or resulting from the use of
the Evaluation Material or any errors therein or omissions therefrom, except in
the case of (i) and (ii), to the extent provided in any definitive agreement
relating to a Transaction.
In the event that we or anyone to whom we transmit any Evaluation
Material in accordance with this Agreement are requested or required (by
deposition, interrogatories, requests for information or documents in legal
proceedings, subpoenas, civil investigative demand or similar process), in
connection with any proceeding, to disclose any Evaluation Material, we will
give the Company prompt notice of such request or requirement, to the extent
practicable, so that the Company may seek an appropriate protective order or
other remedy and/or waive compliance with the provisions of this Agreement, and
we will use reasonable efforts to cooperate with the Company, to the extent
practicable, to obtain such protective order. In the event that such protective
order or other remedy is not obtained or the Company waives compliance with the
relevant provisions of this Agreement, we (or such other person to whom such
request is directed) will furnish only that portion of the Evaluation Material
which we are advised by our or such other person's counsel, is required to be
disclosed. It is further agreed that, if in the absence of a protective order we
(or such other person to whom such request is directed) are nonetheless legally
compelled to disclose such information, we may make such disclosure without
liability hereunder, PROVIDED that we give the Company notice of the information
to be disclosed as far in advance of its disclosure as is practicable and upon
the Company's request and at the Company's expense, use our reasonable efforts
to obtain assurances that confidential treatment will be accorded to such
information and, PROVIDED further, that such disclosure was not caused by and
did not result from a previous disclosure by us not permitted hereunder.
Until the earlier of (i) the consummation of a Transaction, or (ii)
eighteen months from the date of this Agreement, we agree not to initiate or
maintain substantive contact (except for contact in the ordinary course of our
business) with any officer, employee or director (other than any director who is
a member of the Special Committee of the Board of Directors of the Company) of
the Company regarding the Company, its operations, assets, prospects or
finances, except with the express prior written permission of the Company. We
also agree that, for the period ending eighteen months from the date of this
Agreement, we will not, without the Company's prior written consent, directly or
indirectly, solicit for employment any person (i) who is currently employed in a
management, supervisory or senior operational position with the Company, or (ii)
whom we come in contact with in connection with our consideration of a
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possible Transaction, it being understood that general advertising shall not be
deemed a solicitation for these purposes.
If we decide that we do not wish to proceed with a Transaction, we
will promptly notify the Company of that decision. In that case, or if the
Company shall elect at any time to terminate further access by us to the
Evaluation Material for any reason (either of such date being referred to as the
"Return Date"), we will promptly destroy or redeliver to the Company all copies
of the Evaluation Material in our possession or that of our Representatives,
provided that we may retain copies of our Notes. Notwithstanding the foregoing,
we and our Representatives will continue to be bound by our obligations of
confidentiality and other obligations hereunder.
We are aware that the securities laws of the United States prohibit
any person who has material, non-public information concerning the company or a
possible Transaction involving the Company or a significant portion thereof from
purchasing or selling securities in reliance upon such information or from
communicating such information to any other person or entity under circumstances
in which it is reasonably foreseeable that such person or entity is likely to
purchase or sell such securities in reliance upon such information.
We agree that unless and until a definitive agreement between the
Company and us with respect to any Transaction has been executed and delivered,
neither the Company nor we will be under any legal obligation of any kind
whatsoever with respect to such Transaction.
We agree that money damages would not be a sufficient remedy for any
breach of this Agreement by us or our Representatives, that in addition to all
other remedies the Company shall be entitled to specific performance and
injunctive or other equitable relief as a remedy for any such breach, and we
further agree to waive, and to use our best efforts to cause our Representatives
to waive, any requirement for the securing or posting of any bond in connection
with such remedy.
All modifications of, waivers of and amendments to this Agreement or
any part hereof must be in writing signed on behalf of us and the Company.
It is further understood and agreed that no failure or delay by the
Company in exercising any right, power or privilege under this Agreement shall
operate as a waiver thereof nor shall any single or partial exercise thereof
precluded any other or further exercise of any right, power of privilege
hereunder.
We hereby irrevocably and unconditionally submit to the exclusive
jurisdiction of any State or Federal court sitting in Delaware over any suit,
action or proceeding arising out of or relating to this Agreement. We hereby
agree that service of any process, summons, notice or document by U.S.
registered mail addressed to us shall be effective service of process for any
action, suit or proceeding brought against us in any such court. You hereby
irrevocably and unconditionally waive any objection to the laying of venue of
any such suit, action or proceeding brought in any such court and any claim that
any such suit, action or proceeding brought in any such court has been brought
in an inconvenient form. We agree that a final judgment in any such suit, action
or proceeding brought in any such court shall be conclusive and binding upon us
and
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may be enforced in any other courts to whose jurisdiction we are or may be
subject, by suit upon such judgment.
The term "person" as used in this Agreement shall be broadly
interpreted to include, without limitation, the media and any corporation,
partnership, group, individual or other entity.
In the event that any provision or portion of this Agreement is
determined to be invalid or unenforceable for any reason, in whole or in part,
the remaining provisions of this Agreement shall be unaffected thereby and shall
remain in full force and effect to the fullest extent permitted by applicable
law.
This Agreement shall be governed by, and construed and enforced in
accordance with, the laws of the State of Delaware.
If you are in agreement with the foregoing, please so indicate by
signing, dating and returning one copy of this Agreement, which will constitute
our agreement with respect to the matters set forth herein.
Very truly yours,
IBP, inc.
By: /s/ XxXxx Xxxxx
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XxXxx Xxxxx
Title: Chairperson to Special Committee
Agreed and Accepted:
Tyson Foods, Inc.
By: /s/ X. Xxxx Xxxxxx
--------------------------------
X. Xxxx Xxxxxx
Title: Secretary
Date: December 18, 2000
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