EXHIBIT 1
[SMITHFIELD LETTERHEAD]
November 16, 2000
IBP, inc.
000 Xxxxxxx Xxxx Xxxxx
Xxxxxx Xxxxx, XX 00000
Gentlemen:
In connection with a possible transaction involving IBP, 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 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,
(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; and PROVIDED FURTHER that we may
make such disclosures as are required under the federal securities laws in
connection with any offer by us for all of the shares of common stock of the
Company or as otherwise required by law or a regulatory body (including the New
York Stock Exchange).
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 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 agree that, prior to March 31, 2001 (the "Restricted Period"), we
and our subsidiaries will not, in any manner, whether publicly or otherwise,
directly or indirectly, without the prior written consent of the Company, (1)
acquire, agree to acquire or make any public proposal to acquire, directly or
indirectly, any voting securities or assets (other than assets in the ordinary
course of business) of the Company or any of its subsidiaries, (2) publicly
propose to enter into, directly or indirectly, any merger or other business
combination or similar transaction involving the Company or any of its
subsidiaries, (3) enter into any discussions, negotiations, arrangements,
understandings or agreements (whether written or oral) with Rawhide Holdings
Corporation or any of its affiliates or any affiliate of the Company (other than
advisors) regarding a strategic transaction involving the Company or any other
possible purchase or sale of any securities or significant assets of the
Company, (4) publicly disclose any intention, plan or arrangement inconsistent
with the foregoing or (5) knowingly advise or assist any other persons in
connection with any of the foregoing (each of the acts described in clauses (1)
through (5) of this paragraph being an "Acquisition Attempt"), unless such
Acquisition Attempt is made in connection with a proposal by us for the
acquisition of all of the outstanding shares of common stock of the Company;
PROVIDED, however, that if the Company approves or recommends a transaction for
the acquisition by any third party of less than all of the outstanding shares of
common stock of the Company (or, in the case of a tender or exchange offer, does
not recommend that shareholders not tender into such offer), we and our
subsidiaries will not be restricted by any of the foregoing clauses. We also
agree that during the Restricted Period, without the prior written consent of
the Company, we will not acquire any additional shares of the Company's common
stock in the open market if such acquisition would result in us beneficially
owning more than 9.9% of the outstanding shares of the Company's common stock,
except pursuant to or as part of an offer to acquire all of the outstanding
shares of the Company's common stock; PROVIDED, however, that if the Company
approves, recommends or fails to state publicly that it opposes an acquisition
by a third party of shares of the Company's common stock in the open market
which has the effect of causing such third party's beneficial ownership to
exceed 9.9% of the outstanding common stock of the Company, we will be permitted
to purchase additional shares of the Company's common stock in an amount not to
exceed such amount as would cause our ownership of shares of common stock of the
Company not to exceed the percentage of the Company's outstanding common stock
permitted by the Company to be owned by such third party. We further agree that,
during the Restricted Period, neither us nor anyone acting on our behalf will
request the Company, its subsidiaries or its or their officers, directors,
employees, advisors or agents to amend or waive any provision of this paragraph
(including this sentence).
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 acknowledge the existence of the Agreement and Plan of Merger, dated
as of October 1, 2000, among the Company, Rawhide Holdings Corporation and
Rawhide Acquisition Corporation (the "Merger Agreement"). We are aware that the
Company is obligated, pursuant to Section 6.04 of the Merger Agreement, to
deliver a copy of this Agreement to Rawhide Holdings Corporation, and we consent
to such delivery.
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 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,
Smithfield Foods, Inc.
By: /s/ X. XXXXX XXXX
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Title: Vice President and Chief Financial
Officer
Agreed and Accepted:
IBP, inc.
By: /s/ XXXXX X. XXXXX
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Title: CHAIRPERSON OF THE SPECIAL COMMITTEE
Date: NOVEMBER 16, 2000
