EXHIBIT 99.1
EXECUTION COPY
VOTING AGREEMENT
BY AND AMONG
SMITHFIELD FOODS,
INC.,
CONTIGROUP COMPANIES,
INC.
AND
(SOLELY FOR PURPOSES OF SECTION
5.2 HEREOF)
PREMIUM STANDARD FARMS,
INC.
DATED AS OF SEPTEMBER 17,
2006
TABLE OF CONTENTS
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Page
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ARTICLE I General
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1
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1.1.
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Defined
Terms
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1
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ARTICLE II
VOTING
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3
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2.1.
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Agreement to
Vote
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3
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2.2.
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No Inconsistent
Agreements
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4
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2.3.
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Proxy
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4
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ARTICLE III
REPRESENTATIONS AND WARRANTIES
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5
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3.1.
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Representations
and Warranties of the Stockholder
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5
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ARTICLE IV
OTHER COVENANTS
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7
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4.1.
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Prohibition on
Transfers, Other Actions
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7
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4.2.
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Stock
Dividends, etc.
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7
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4.3.
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No
Solicitation
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7
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4.4.
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Notice of
Acquisitions, Proposals Regarding Prohibited
Transactions
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8
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4.5.
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Stockholder
Profit
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8
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4.6.
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Waiver of
Appraisal Rights
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10
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4.7.
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Further
Assurances
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10
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4.8.
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Piggy-back
Registration Rights
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10
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ARTICLE V
MISCELLANEOUS
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10
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5.1.
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Termination
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10
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5.2.
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Legends; Stop
Transfer Order
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10
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5.3.
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No Ownership
Interest
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11
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5.4.
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Notices
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11
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5.5.
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Interpretation
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13
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5.6.
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Counterparts
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13
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5.7.
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Entire
Agreement
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13
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5.8.
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Governing Law;
Consent to Jurisdiction; Waiver of Jury Trial
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13
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5.9.
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Amendment;
Waiver
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14
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5.10.
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Remedies
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14
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5.11.
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Severability
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14
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5.12.
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Successors and
Assigns; Third Party Beneficiaries
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15
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5.13.
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Stockholder
Capacity
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15
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Schedule 1: Stockholder
Information
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i
INDEX OF DEFINED
TERMS
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Page
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Affiliate
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1
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Agreement
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1
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Beneficial Ownership
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2
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Beneficially Own
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2
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Beneficially Owned
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2
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Common Stock
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1
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Company
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1
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control
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2
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Covered Shares
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2
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Encumbrance
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2
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Existing Shares
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2
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Grantees
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4
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Merger
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1
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Merger Agreement
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1
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Merger Sub
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1
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Permitted Transfer
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2
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Person
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3
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Prohibited Activity
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9
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Representatives
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3
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Saturn
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1
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Specified Rights
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5
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Stockholder
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1
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Subsidiary
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3
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Traded Securities
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9
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Transfer
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3
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Valuation Period
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9
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ii
VOTING AGREEMENT
VOTING AGREEMENT, dated as of
September 17, 2006 (this “ Agreement
”), by and among Smithfield Foods, Inc., a Virginia
corporation (“ Parent ”), ContiGroup
Companies, Inc., a Delaware corporation (“
Stockholder ”), and, solely for the purposes of
Section 5.2 hereof, Premium Standard Farms, Inc., a Delaware
corporation (the “ Company ”).
W I T N E S S E T
H:
WHEREAS, concurrently with the
execution of this Agreement, Parent, KC2 Merger Sub, Inc., a
Delaware corporation and a wholly-owned subsidiary of Parent
(“ Merger Sub ” ), and the Company are
entering into an Agreement and Plan of Merger, dated as of the date
hereof (as amended, supplemented, restated or otherwise modified
from time to time, the “ Merger Agreement
”) pursuant to which, among other things, Merger Sub will
merge with and into the Company (the “ Merger
”) and each outstanding share of the common stock, par value
$0.01 per share, of the Company (the “ Common
Stock ”) will be converted into the right to receive
the merger consideration specified therein.
WHEREAS, as of the date hereof, the
Stockholder is the record and beneficial owner, in the aggregate,
of 12,428,592 outstanding shares of Common Stock, all of which such
shares Stockholder controls the right to vote.
WHEREAS, as a material inducement to
Parent entering into the Merger Agreement, Parent has required that
the Stockholder agree, and the Stockholder has agreed, to enter
into this agreement and abide by the covenants and obligations with
respect to the Covered Shares (as hereinafter defined) set forth
herein.
WHEREAS, simultaneously with the
execution of this Agreement, Parent, the Company and the
Stockholder have entered into the Missouri Sale
Agreement.
NOW THEREFORE, in consideration of
the foregoing and the mutual representations, warranties, covenants
and agreements herein contained, and intending to be legally bound
hereby, the parties hereto agree as follows:
ARTICLE I
GENERAL
1.1. Defined Terms . The
following capitalized terms, as used in this Agreement, shall have
the meanings set forth below. Capitalized terms used but not
otherwise defined herein shall have the meanings ascribed thereto
in the Merger Agreement.
“ Affiliate
” means, with respect to any Person, any other Person that
directly, or indirectly through one or more intermediaries,
controls, is controlled by or is under common control with, such
specified Person.
“ Beneficial
Ownership ” by a Person of any securities includes
ownership by any Person who, directly or indirectly, through any
contract, arrangement, understanding, relationship or otherwise,
has or shares (i) voting power which includes the power to
vote, or to direct the voting of, such security; and/or
(ii) investment power which includes the power to dispose, or
to direct the disposition, of such security; and shall otherwise be
interpreted in accordance with the term “beneficial
ownership” as defined in Rule 13d-3 adopted by the Securities
and Exchange Commission under the Securities Exchange Act of 1934,
as amended; provided that for purposes of determining
Beneficial Ownership, a Person shall be deemed to be the Beneficial
Owner of any securities which such Person has, at any time during
the term of this Agreement, the right to acquire pursuant to any
agreement, arrangement or understanding or upon the exercise of
conversion rights, exchange rights, warrants or options, or
otherwise (irrespective of whether the right to acquire such
securities is exercisable immediately or only after the passage of
time, including the passage of time in excess of 60 days, the
satisfaction of any conditions, the occurrence of any event or any
combination of the foregoing). The terms “ Beneficially
Own ” and “ Beneficially Owned
” shall have a correlative meaning.
“ control
” (including the terms “ controlled by
” and “ under common control with
”), with respect to the relationship between or among two or
more Persons, means the possession, directly or indirectly, of the
power to direct or cause the direction of the affairs or management
of a Person, whether through the ownership of voting securities, as
trustee or executor, by contract or any other means.
“ Covered Shares
” means, with respect to the Stockholder, the
Stockholder’s Existing Shares, together with any shares of
Common Stock or other voting capital stock of the Company and any
securities convertible into or exercisable or exchangeable for
shares of Common Stock or other voting capital stock of the
Company, in each case that the Stockholder acquires Beneficial
Ownership of on or after the date hereof.
“ Encumbrance
” means any security interest, pledge, mortgage, lien
(statutory or other), charge, option to purchase, lease or other
right to acquire any interest or any claim, restriction, covenant,
title defect, hypothecation, assignment, deposit arrangement or
other encumbrance of any kind or any preference, priority or other
security agreement or preferential arrangement of any kind or
nature whatsoever (including any conditional sale or other title
retention agreement), excluding restrictions under securities
laws.
“ Existing
Shares ” means, with respect to the Stockholder, the
number of shares of Common Stock Beneficially Owned (and except as
may be set forth on Schedule 1 hereto, owned of record) by the
Stockholder, as set forth opposite the Stockholder’s name on
Schedule 1 hereto.
“ Permitted
Transfer ” means a Transfer by the Stockholder to a
wholly owned Subsidiary of the Stockholder, provided that such
transferee Subsidiary executes and delivers to Parent a written
agreement, in form and substance acceptable to Parent, to assume
all of Stockholder’s obligations hereunder in respect of the
securities subject to such Transfer and to be bound by the terms of
this Agreement, with respect to the securities subject to such
Transfer, to the same extent as the Stockholder is bound hereunder
and to make each of the representations and warranties hereunder in
respect of the securities transferred as the Stockholder shall have
made hereunder.
2
“ Person ”
means any individual, corporation, limited liability company,
limited or general partnership, joint venture, association,
joint-stock company, trust, unincorporated organization, government
or any agency or political subdivision thereof or any other entity,
or any group comprised of two or more of the foregoing.
“
Representatives ” means the officers,
directors, employees, agents, advisors and Affiliates of a
Person.
“ Subsidiary
” means, with respect to any Person, any corporation or other
organization, whether incorporated or unincorporated, (i) of
which such Person or any other Subsidiary of such Person is a
general partner, or (ii) at least a majority of the securities
or other interests of which having by their terms ordinary voting
power to elect a majority of the board of directors or others
performing similar functions with respect to such corporation or
other organization is directly or indirectly owned or controlled by
such Person or by any one or more of its Subsidiaries, or by such
Person and one or more of its Subsidiaries.
“ Transfer
” means, directly or indirectly, to sell, transfer, assign,
pledge, encumber, hypothecate or similarly dispose of (by merger
(including by conversion into securities or other consideration),
by tendering into any tender or exchange offer, by testamentary
disposition, by operation of law or otherwise), either voluntarily
or involuntarily, or to enter into any contract, option or other
arrangement or understanding with respect to the voting of or sale,
transfer, assignment, pledge, encumbrance, hypothecation or similar
disposition of (by merger, by tendering into any tender or exchange
offer, by testamentary disposition, by operation of law or
otherwise).
ARTICLE II
VOTING
2.1. Agreement to Vote . The
Stockholder hereby irrevocably and unconditionally agrees that
during the term of this Agreement, at the Company
Stockholders’ Meeting and at any other meeting of the
stockholders of the Company, however called, including any
adjournment or postponement thereof, and in connection with any
written consent of the stockholders of the Company, the Stockholder
shall, in each case to the fullest extent that such matters are
submitted for the vote or written consent of the Stockholder and
that the Covered Shares are entitled to vote thereon or consent
thereto:
(a) appear at each such meeting or
otherwise cause the Covered Shares as to which the Stockholder
controls the right to vote to be counted as present thereat for
purposes of calculating a quorum; and
(b) vote (or cause to be voted), in
person or by proxy, or deliver (or cause to be delivered) a written
consent covering, all of the Covered Shares as to which the
Stockholder controls the right to vote (i) in favor of the
adoption of the Merger Agreement and any related
3
proposal in furtherance thereof, as reasonably
requested by Parent, submitted for the vote or written consent of
stockholders; (ii) against any action or agreement submitted
for the vote or written consent of stockholders that is in
opposition to, or competitive or materially inconsistent with, the
Merger or that would result in a breach of any covenant,
representation or warranty or any other obligation or agreement of
the Company contained in the Merger Agreement, or of the
Stockholder contained in this Agreement; and (iii) against any
Takeover Proposal and against any other action, agreement or
transaction submitted for the vote or written consent of
stockholders that would reasonably be expected to impede, interfere
with, delay, postpone, discourage, frustrate the purposes of or
adversely affect the Merger or the other transactions contemplated
by the Merger Agreement or this Agreement or the performance by the
Company of its obligations under the Merger Agreement or by the
Stockholder of its obligations under this Agreement. The
obligations of the Stockholder specified in this
Section 2.1(b) shall, subject to Section 2.1(c), apply
whether or not the Merger or any action described above is
recommended by the Board of Directors of the Company.
(c) Notwithstanding the foregoing,
in the event of a Company Adverse Recommendation Change (as defined
in the Merger Agreement) made in compliance with the Merger
Agreement, other than a Company Adverse Recommendation Change not
made in connection with a Superior Proposal, the obligation of the
Stockholder to vote Covered Shares as to which the Stockholder
controls the right to vote in the manner set forth in this
Section 2.1 shall only apply to an aggregate number of Covered
Shares entitled to vote in respect of such matter that is equal to
thirty-two percent (32%) of the total number of shares of Common
Stock entitled to vote in respect of such matter and the
Stockholder shall cause all remaining Covered Shares so entitled to
vote to be voted in a manner that is proportionate to the manner in
which all shares of Common Stock (other than shares voted by the
Stockholder) which are voted in respect of such matter, are
voted.
2.2. No Inconsistent
Agreements . The Stockholder hereby covenants and agrees that,
except for this Agreement, the Stockholder (a) has not entered
into, and shall not enter into at any time while this Agreement
remains in effect, any voting agreement or voting trust with
respect to the Covered Shares, (b) has not granted, and shall
not grant at any time while this Agreement remains in effect, a
proxy (except pursuant to Section 2.3 hereof), consent or
power of attorney with respect to the Covered Shares and
(c) has not taken and shall not knowingly take any action that
would make any representation or warranty of the Stockholder
contained herein untrue or incorrect or have the effect of
preventing or disabling the Stockholder from performing any of its
obligations under this Agreement.
2.3. Proxy . The Stockholder
hereby irrevocably appoints as its proxy and attorney-in-fact,
Michael Cole and Richard Poulson, in their respective capacities as
officers of Parent, and any individual who shall hereafter succeed
to any such officer of Parent, and any other Person designated in
writing by Parent (collectively, the “ Grantees
”), each of them individually, with full power of
substitution, to vote or execute written consents with respect to
the Covered Shares as to which the Stockholder controls the right
to vote in accordance with Section 2.1 hereof and, in the
discretion of the Grantees, with respect to any proposed
postponements or adjournments of any annual or special meeting of
the stockholders of the Company at which any of the matters
described in Section 2.1(a) was to be considered. This proxy
is coupled with an interest and shall be irrevocable, and the
Stockholder will take such further action or execute such
other
4
instruments as may be necessary to effectuate
the intent of this proxy and hereby revokes any proxy previously
granted by the Stockholder with respect to the Covered Shares.
Parent may terminate this proxy with respect to the Stockholder at
any time at its sole election by written notice provided to the
Stockholder.
ARTICLE III
REPRESENTATIONS AND
WARRANTIES
3.1. Representations and
Warranties of the Stockholder . The Stockholder hereby
represents and warrants to Parent as follows:
(a) Organization; Authorization;
Validity of Agreement; Necessary Action . The Stockholder is
duly organized and is validly existing and in good standing under
the laws of the jurisdiction of its incorporation. The Stockholder
has full power and authority to execute and deliver this Agreement,
to perform its obligations hereunder and to consummate the
transactions contemplated hereby. The execution and delivery by the
Stockholder of this Agreement, the performance by it of its
obligations hereunder and the consummation by it of the
transactions contemplated hereby have been duly and validly
authorized by the Stockholder and no other actions or proceedings
on the part of the Stockholder or any stockholder thereof are
necessary to authorize the execution and delivery by it of this
Agreement, the performance by it of its obligations hereunder or
the consummation by it of the transactions contemplated hereby.
This Agreement has been duly executed and delivered by the
Stockholder and, assuming this Agreement constitutes a valid and
binding obligation of the other parties hereto, constitutes a
legal, valid and binding obligation of the Stockholder, enforceable
against it in accordance with its terms, subject to bankruptcy,
insolvency, fraudulent transfer, moratorium, reorganization or
similar laws affecting the rights of creditors generally and the
availability of equitable remedies (regardless of whether such
enforceability is considered in a proceeding in equity or at
law).
(b) Ownership . The
Stockholder’s Existing Shares are, and all of the Covered
Shares owned by the Stockholder from the date hereof through and on
the Closing Date will be, Beneficially Owned and owned of record by
the Stockholder, except to the extent such Covered Shares are
Transferred after the date hereof pursuant to a Permitted Transfer
or constitute any warrants, options, conversion rights or similar
rights with respect to Common Stock (collectively, “
Specified Rights ”) that expire after the date
hereof. The Stockholder has good and marketable title to the
Stockholder’s Existing Shares, free and clear of any
Encumbrances. As of the date hereof, the Stockholder’s
Existing Shares constitute all of the shares of Common Stock
Beneficially Owned or owned of record by the Stockholder. Except
(i) to the extent Covered Shares are transferred after the
date hereof pursuant to a Permitted Transfer or constitute
Specified Rights that expire after the date hereof or (ii) as
set forth on Schedule 1, the Stockholder has and will have at all
times through the Closing Date sole voting power (including the
right to control such vote as contemplated herein), sole power of
disposition, sole power to issue instructions with respect to the
matters set forth in Article II hereof, and sole power to agree to
all of the matters set forth in this Agreement, in each case with
respect to all of the Stockholder’s Existing Shares and with
respect to all of the Covered Shares owned by the Stockholder at
all times through the Closing Date (subject, in the case of Covered
Shares underlying Specified Rights acquired after the date hereof,
to the terms of such Specified Rights).
5
(c) No Violation . The
execution and delivery of this Agreement by the Stockholder does
not, and the performance by the Stockholder of its obligations
under this Agreement will not, (i) conflict with or violate
the certificate of incorporation, bylaws or other comparable
governing documents, as applicable, of the Stockholder,
(ii) conflict with or violate any law, ordinance or regulation
of any Governmental Entity applicable to the Stockholder or by
which any of its assets or properties is bound, or
(iii) conflict with, result in any breach of or constitute a
default (or an event that with notice or lapse of time or both
would become a default) under, or give to others any rights of
termination, amendment, acceleration or cancellation of, or result
in the creation of any Encumbrance on the properties or assets of
the Stockholder pursuant to, any note, bond, mortgage, indenture,
contract, agreement, lease, license, permit, franchise or other
instrument or obligation to which the Stockholder is a party or by
which the Stockholder or any of its asse