CONTIGROUP COMPANIES,
INC.
(SOLELY FOR PURPOSES OF SECTION
5.2 HEREOF)
PREMIUM STANDARD FARMS,
INC.
DATED AS OF SEPTEMBER 17,
2006
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ARTICLE I
General
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1
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1
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ARTICLE II
VOTING
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3
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3
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No Inconsistent Agreements
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4
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4
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ARTICLE III
REPRESENTATIONS AND WARRANTIES
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5
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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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Prohibition on Transfers, Other
Actions
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7
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7
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7
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Notice of Acquisitions, Proposals Regarding
Prohibited Transactions
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8
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Waiver of Appraisal Rights
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10
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10
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Piggy-back Registration Rights
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10
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ARTICLE V
MISCELLANEOUS
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Legends; Stop Transfer Order
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Governing Law; Consent to Jurisdiction; Waiver
of Jury Trial
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14
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14
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Successors and Assigns; Third Party
Beneficiaries
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15
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Schedule 1: Stockholder
Information
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5
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9
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9
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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
”).
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:
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
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and warranties
hereunder in respect of the securities transferred as the
Stockholder shall have made hereunder.
“
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).
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
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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
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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.
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
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underlying
Specified Rights acquired after the date hereof, to the terms of
such Specified Rights).
(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 assets or properties is bound,
except for any of the foregoing as coul
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