EXHIBIT 2.3
CONFORMED COPY
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AGREEMENT WITH SHAREHOLDERS
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This Agreement with Shareholders is made and entered into as of January 28,
2000, by and between SMITHFIELD FOODS, INC., a Virginia corporation (the
"Company"), and each of XXXXXXX X. XXXXXX, XXXXX X. XXXXXX, XXXXX X. XXXXXX,
XXXXXXX X. XXXXXX, XX., XXXXX XXXXXX XXXXXXXX, XXXXXXXX X. XXXXXX, XXXX X.
XXXXXX AND XXXXXX XXXXX (each a "Shareholder" and collectively the
"Shareholders").
W I T N E S S E T H :
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WHEREAS, the Company and the Shareholders are parties to an Acquisition
Agreement dated as of November 15, 1999, as amended as of January 1, 2000 (the
"Acquisition Agreement"); and
WHEREAS, pursuant to the Acquisition Agreement and simultaneously with the
execution of this Agreement, the Company and the Shareholders are entering into
a Registration Rights Agreement and an Escrow Agreement;
NOW, THEREFORE, for good and valuable consideration, the delivery and
sufficiency of which is hereby acknowledged, the parties hereto hereby agree as
follows:
ARTICLE I
DEFINITIONS
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1.1 Defined Terms. As used in this Agreement, the following capitalized
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terms shall have the meanings ascribed to them below:
"Affiliate" means, as to any Person, any other Person which, directly
or indirectly, controls, is controlled by or is under common control with such
person. For purposes of this definition, the term "control" means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of a Person, whether through the
ownership of voting stock, by contract or otherwise.
"Common Stock" means the Common Stock, par value $.50 per share, of
the Company.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Lockup Shares" means as to each Shareholder (i) initially, the
respective shares of Common Stock issued to such Shareholder upon the closing
under the Acquisition Agreement on the date hereof, and (ii) upon the making of
the post-closing adjustments required by the Acquisition Agreement, such shares
(a) plus the shares of Common Stock additionally issued by the Company to such
Shareholder or (b) minus the shares of Common Stock returned by such Shareholder
or the Escrow Agent to the Company, as the case may be, pursuant to such
adjustments, subject in any case to customary adjustment for any subsequent
stock split, stock dividend or similar event.
"Person" means an individual, partnership, joint venture, corporation,
trust, unincorporated organization or government or any department or agency
thereof.
"Voting Securities" means any shares of any class of securities
entitled to, or that may be entitled to, vote, including without limitation the
Common Stock.
ARTICLE II
AGREEMENTS
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2.1 Standstill Agreement. None of the Shareholders will, during the five-
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year period subsequent to the date hereof, without the written consent of the
Company, singly or as part of a "partnership, limited partnership, syndicate or
other group" (within the meaning of Section 13(d)(3) of the Exchange Act),
directly or indirectly, individually, together with any other Shareholder,
through one or more Affiliates, associates or intermediaries or otherwise:
(a) make or in any way participate, directly or indirectly, in the
making of any "solicitation" of "proxies" (as such terms are defined or used in
Regulation 14A under the Exchange Act) to vote Voting Securities at any meeting
of Company shareholders or become a "participant" in any "election contest" (as
such terms are defined or used in Rule 14a-11 under the Exchange Act) with
respect to the Company, or initiate, propose or otherwise solicit holders of
Voting Securities for the approval of one or more shareholder proposals with
respect to the Company as described in Rule 14a-8 under the Exchange Act;
(b) oppose, or form, join or in any way participate in a "group"
(within the meaning of Section 13(d)(3) of the Exchange Act) opposing, any
proposal presented by Company management at any meeting of Company shareholders,
or vote against such proposal; or
(c) acquire or substantially influence the control of the Company, or
directly or indirectly participate in the formation of any "group" (within the
meaning of
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Section 13(d)(3) of the Exchange Act) which seeks to acquire beneficial
ownership of more than 25% of the outstanding shares of any class of Voting
Securities of the Company or to acquire or substantially influence control of
the Company; otherwise act, directly or indirectly, alone or in concert with
others, to seek to control the Board of Directors of the Company; or solicit,
seek to effect, negotiate with or provide any information to any other party
with respect to, or make any statement or proposal, whether written or oral, to
the Board of Directors of the Company or any director or officer of the Company,
or otherwise make any public announcement of any proposal, with respect to any
form of business combination transaction involving the Company, including,
without limitation, a merger, exchange offer or sale of the Company's assets or
instigate any third party to do any of the foregoing.
2.2 Restrictions on Transfer. Without the written consent of the Company,
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no Shareholder will, individually or together with any other Shareholder, during
the five year period commencing on the date hereof: (i) sell, transfer, donate,
pledge, hypothecate, encumber or otherwise agree or arrange to transfer, to one
Person or "group" (within the meaning of Section 13(d)(3) of the Exchange Act)
(other than another Shareholder) Shares of Common Stock aggregating 5% or more
of the outstanding Common Stock; or (ii) within any 12-month period sell,
transfer, donate, pledge, hypothecate, encumber or make any other agreement or
arrangement of transfer with respect to, an aggregate number of Lockup Shares
equal to or greater than 10% of such Shareholder's Lockup Shares at the date
hereof (other than to or with another Shareholder).
ARTICLE III
MISCELLANEOUS
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3.1 Amendments. This Agreement may be amended only by written amendment
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signed by the Company and by Shareholders holding a majority of the then
outstanding Lockup Shares.
3.2 Successors, Assigns and Transferees. No rights under this Agreement
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may be assigned or transferred to any Person, other than with the prior written
consent of all of the parties hereto, and other than by operation of law.
3.3 Integration. This Agreement, the Acquisition Agreement, the Escrow
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Agreement, the Registration Rights Agreement and any other documents referred to
herein or delivered pursuant hereto that form a part hereof contain the entire
understanding of the parties hereto with respect to its subject matter. There
are no restrictions, agreements, promises, rights, representations, warranties,
covenants or undertakings with respect to the subject matter hereof other than
those expressly set forth herein. This Agreement supersedes all prior
agreements and understandings of the parties hereto with respect to its subject
matter.
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3.4 Notices. All notices required to be given hereunder shall be in
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writing and shall be deemed to have been given if (i) delivered personally or by
documented courier or delivery service, (ii) transmitted by facsimile during
normal business hours or (iii) mailed by registered or certified mail (return
receipt requested and postage prepaid) to the following listed persons at the
addresses and facsimile numbers specified below, or to such other persons,
addresses or facsimile numbers as a party entitled to notice shall give, in the
manner hereinabove specified, to the others entitled to notice:
if to the Company, to:
Smithfield Foods, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Secretary
Telecopier: (000) 000-0000
Telephone Confirmation: (000) 000-0000
with copies to:
McGuire, Woods, Battle & Xxxxxx LLP
One Xxxxx Center
000 X. Xxxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: Xxx Xxxxx Xxxxxxx
Telecopier: (000) 000-0000
Telephone Confirmation: (000) 000-0000
If to any of the Shareholders, to:
Xxxxxxx X. Xxxxxx
Xxxxxx Farms, Inc.
X.X. Xxx 000
X.X. Xxxxxxx 000 Xxxxx
Xxxx Xxxx, Xxxxx Xxxxxxxx 00000
with a copy to:
The Xxxxxxx Xxxxxxxxxx Law Firm PLLC
000 Xxxxxxxxxxxx Xxxxxx, Xxxxx 0000
X.X. Xxx 0000
Xxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Reef X. Xxxx, XX
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Telecopier: (000) 000-0000
Telephone Confirmation: (000) 000-0000
If given personally or by documented courier or delivery service, or transmitted
by facsimile, a notice shall be deemed to have been given when it is received.
If given by mail, it shall be deemed to have been given on the third business
day following the day on which it was posted.
3.5 Termination. This Agreement will terminate upon the fifth anniversary
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of the date hereof.
3.6 Descriptive Headings. The headings in this Agreement are for
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convenience of reference only and shall not limit, expand or otherwise affect
the meaning of the terms contained herein.
3.7 Severability. In the event that one or more of the provisions,
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paragraphs, words, clauses, phrases or sentences contained herein, or the
application thereof in any circumstances, is held invalid, illegal or
unenforceable in any respect for any reason, the validity, legality and
enforceability of any such provision, paragraph, word, clause, phrase or
sentence in every other respect and of the remaining provisions, paragraphs,
words, clauses, phrases or sentences hereof shall not be in any way impaired, it
being intended that all rights, powers and privileges of the Company and the
Shareholders shall be enforceable to the fullest extent permitted by law.
3.8 Governing Law. This Agreement shall be governed by the internal law
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of the State of North Carolina, without regard to principles of conflicts of
law.
3.9 Counterparts. This Agreement may be executed in any number of
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counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same instrument.
Any party's execution of this Agreement may be evidenced by physical delivery or
by telecopier, facsimile or other written communication thereof to the other
parties.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
SMITHFIELD FOODS, INC.
By: /s/ Xxxxxxx X. X. Xxxxxxx
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Name: Xxxxxxx X. X. Xxxxxxx
Title: Vice President and Senior Advisor
To the Chairman
THE SHAREHOLDERS
/s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
/s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
/s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
/s/ Xxxxxxx X. Xxxxxx, Xx.
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Name: Xxxxxxx X. Xxxxxx, Xx.
/s/ Xxxxx Xxxxxx Xxxxxxxx
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Name: Xxxxx Xxxxxx Xxxxxxxx
/s/ Xxxxxxxx X. Xxxxxx
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Name: Xxxxxxxx X. Xxxxxx by Xxxxxx
Xxxxxx, Attorney in Fact
/s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx by Xxxxxx
Xxxxxx, Attorney in Fact
/s/ Xxxxxx Xxxxx
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Name: Xxxxxx Xxxxx
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