EXHIBIT 99.2
TENDER AGREEMENT
TENDER AGREEMENT dated as of March 25, 1997 (this "Agreement"),
among IBP, inc., a Delaware corporation (the "Parent"), IBP Sub, Inc., a
Delaware corporation and a wholly owned subsidiary of the Parent
("Purchaser"), and The Airlie Group, L.P. a Delaware limited partnership (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
Agreement) 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
Agreement);
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") and;
WHEREAS, as a condition to the willingness of the Parent and
Purchaser to enter into the Merger Agreement, and as an inducement 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) From time to time following
the commencement by Purchaser of the Offer, the Stockholder shall, if so
requested in writing by Parent (the "Request"), promptly 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 such number as specified in the Request not in
excess of the then applicable Maximum Share Number), of 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; provided, that the number of Shares the Stockholder shall
be required to tender from time to time pursuant to a Request, when taken
together with all Shares previously tendered in the Offer and not withdrawn,
shall not exceed the aggregate number of Shares owned by the Stockholder
beneficially and of record, at such time (ii) the certificates representing
the Shares specified in the Request, 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 and tendered or requested to be tendered in
excess of the Maximum Share Number or if 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). 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 irrevocably
grants Purchaser an option (the "Option"), exercisable from time to time only
upon the events and subject to the conditions set forth herein, to purchase
such number (not in excess of the then applicable Maximum Share Number), 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 exercise 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 satisfied (but not later than the Option
Expiration Date).
(c) At the Closing, the Stockholder will deliver to Purchaser (in
accordance with Purchaser's instructions) the certificates representing the
Shares owned by the Stockholder and being purchased pursuant to Section
1.02(c), duly endorsed or accompanied by stock powers duly executed in blank;
provided, that the number of Shares the Stockholder shall be required to
deliver from time to time pursuant to a Notice, when taken together with all
Shares previously delivered pursuant to all Notices, shall not exceed the
aggregate number of shares owned by the Stockholder beneficially and of
record, at such time. 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 being 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 ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust
Improvements Act of 1976 and the rules and regulations promulgated
thereunder (the "HSR Act") applicable to such purchase shall have
expired or been terminated; and
(b) there shall be no preliminary or permanent injunction or
other order, decree or ruling issued by any Governmental Entity,
nor any statute, rule, regulation or order promulgated or enacted
by any Governmental Entity prohibiting, 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.
SECTION 1.05. Maximum Share Number. For purposes of this
Agreement, the term "Maximum Share Number" shall mean, as of any time of
determination, such number of Shares that, when taken together with all
shares of the Company Common Stock that Parent or any of its Affiliates (i)
owns directly or indirectly, beneficially or of record, at such time of
determination and (ii) has the right to acquire, at such time of
determination, from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇, ▇.▇. and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ &
▇▇▇▇ Fund II, L.P. in accordance with the terms of the Tender Agreement dated
March 25, 1997 among Parent, Purchaser and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇, ▇.▇. and
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ Fund II, L.P. pursuant to the Offer or the exercise
of the Option (as defined in such Tender Agreement), would cause Parent or
its Affiliates to own directly or indirectly, beneficially or of record,
49.9% of the aggregate voting power represented by the issued and outstanding
capital stock of the Company.
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 (not to exceed the Maximum Share Number) 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 (not to exceed the Maximum Share Number) 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
and AC that:
SECTION 3.01. Ownership. As of the date hereof the Stockholder is
the sole, true, lawful and beneficial owner of 827,200 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 execution,
delivery and performance by the Stockholder of this Agreement 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 consultation, 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, cancellation or acceleration of any right or obligation
of the Stockholder 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 arrangement 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
necessary 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 contravene or constitute a default under,
the certificate of incorporation 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 Securities 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 directly 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
communications 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 exercise 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 incurring 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 regulations and which may be required under any
agreements, contracts, commitments, instruments, understandings, arrangements
or restrictions 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 acknowledge 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
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 signature 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) the 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 Agreement 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 conditions and provisions of this
Agreement shall nevertheless remain in full force and effect so long as the
economic or legal substance of the transactions contemplated hereby are not
affected in any manner materially adverse to any party. Upon such
determination 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/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Chairman and Chief Executive
Officer
Address for Notices:
▇▇▇ ▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq. (#141)
IBP SUB, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: President
Address for Notices:
▇▇▇ ▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq. (#141)
THE AIRLIE GROUP, L.P.
By: EBD L.P., General Partner
By: TMT-FW, Inc., General Partner
By: /s/ Dort ▇. ▇▇▇▇▇▇▇ III
Name: Dort ▇. ▇▇▇▇▇▇▇ III
Title:
Address for Notices:
▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇.
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Dort ▇. ▇▇▇▇▇▇▇ III
