-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, KNdRxgSci64z/fe7tszI0Y09Okv7y5d25F08WtTowTtdS269LrCIZBfulRcbfPui EJRA5MaeC409qpFeUj8J6w== /in/edgar/work/0000007084-00-000044/0000007084-00-000044.txt : 20001004 0000007084-00-000044.hdr.sgml : 20001004 ACCESSION NUMBER: 0000007084-00-000044 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 20001003 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: IBP INC CENTRAL INDEX KEY: 0000052477 STANDARD INDUSTRIAL CLASSIFICATION: [2011 ] IRS NUMBER: 420838666 STATE OF INCORPORATION: DE FISCAL YEAR END: 1226 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: SEC FILE NUMBER: 005-06183 FILM NUMBER: 734251 BUSINESS ADDRESS: STREET 1: IBP AVE STREET 2: P O BOX 515 CITY: DAKOTA CITY STATE: NE ZIP: 68731 BUSINESS PHONE: 4024942061 MAIL ADDRESS: STREET 1: IBP AVE STREET 2: P O BOX 515 CITY: DAKOTA CITY STATE: NE ZIP: 68731 FORMER COMPANY: FORMER CONFORMED NAME: IOWA BEEF PROCESSORS INC /PRED/ DATE OF NAME CHANGE: 19821109 FORMER COMPANY: FORMER CONFORMED NAME: IOWA BEEF PACKERS INC DATE OF NAME CHANGE: 19701130 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: ARCHER DANIELS MIDLAND CO CENTRAL INDEX KEY: 0000007084 STANDARD INDUSTRIAL CLASSIFICATION: [2070 ] IRS NUMBER: 410129150 STATE OF INCORPORATION: DE FISCAL YEAR END: 0630 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 4666 FARIES PKWY CITY: DECATUR STATE: IL ZIP: 62526 BUSINESS PHONE: 2174244798 SC 13D/A 1 0001.txt 13-D/A IBP, INC. Page 1 UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 SCHEDULE 13D Under the Securities Exchange Act of 1934 (Amendment No. 7)* IBP, Inc. _____________________________________________________________ (Name of Issuer) COMMON STOCK _____________________________________________________________ (Title of Class of Securities) 449223-10-6 ______________________________________________ (CUSIP Number) D. J. Smith, Vice President, Secretary and General Counsel, Archer-Daniels-Midland Company, 4666 Faries Parkway, P. O. Box 1470, Decatur, IL 62525, Telephone: (217)424-5200 ______________________________________________________________ (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) October 1, 2000 ___________________________________________________ (Date of Event which Requires Filing of this Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition which is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(b)(3) or (4), check the following box __. Check the following box if a fee is being paid with the statement ___. (A fee is not required only if the reporting person: (1) has a previous statement on file reporting beneficial ownership of more than five percent of the class of securities described in Item 1; and (2) has filed no amendment subsequent thereto reporting beneficial ownership of five percent or less of such class.) (See Rule 13d-7.) Note: Six copies of this statement, including all exhibits, should be filed with the commission. See Rule 13d-1(a) for other parties to whom copies are to be sent. * The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of Securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page. 1 Page 2 This information required on the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of that Section of the Act but shall be subject to all other provisions of the Act (however, see the Notes). 2 Page 3 1 NAME OF REPORTING PERSON S. S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON Archer-Daniels-Midland Company I.R.S. Identification No. 41-0129150 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP * (a)__ (b)__ 3 SEC USE ONLY 4 SOURCE OF FUNDS * WC 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(E) __x__ See Appendix I 6 CITIZENSHIP OR PLACE OF ORGANIZATION Delaware 7 SOLE VOTING POWER -0- NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH 8 SHARED VOTING POWER 12,951,400 9 SOLE DISPOSITIVE POWER -0- 10 SHARED DISPOSITIVE POWER 12,951,400 (1) 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 12,951,400 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW(11)EXCLUDES CERTAIN SHARES * __ 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 12.27% based on 105,578,277 shares outstanding 3 Page 4 14 TYPE OF REPORTING PERSON * CO * SEE INSTRUCTIONS BEFORE FILLING OUT! (1) Pursuant to the Voting Agreement described in Item 4, ADM has agreed with Rawhide Holdings and Merger Sub that if ADM sells, transfers, assigns, encumbers or otherwise disposes (a "Transfer") of any shares of Common Stock it owns while the Voting Agreement is in effect that it will require the transferee of such shares to execute and deliver a voting agreement identical in form to the Voting Agreement, except for the identity of the new stockholder, prior to or concurrently with any such Transfer. 4 Page 5 ARCHER-DANIELS-MIDLAND COMPANY Statement Pursuant to Section 13(d) of the Securities Exchange Act of 1934 Item 4. Purpose of Transaction. On October 1, 2000, Rawhide Acquisition Corporation ("Merger Sub"), Rawhide Holdings Corporation ("Rawhide Holdings") and the Issuer entered into an Agreement and Plan of Merger (the "Merger Agreement") whereby, subject to the terms and conditions therein, Merger Sub will be merged (the "Merger") with and into the Issuer at the effective time of the Merger. The separate existence of Merger Sub will cease upon consummation of the Merger, and the Issuer will be the surviving corporation. Pursuant to the Merger Agreement, and subject to the conditions set forth therein (including regulatory approvals and approval by shareholders of the Issuer), at the effective time of the Merger: (i) Merger Sub will be merged with and into Issuer; (ii) each share of common stock of the Issuer (the "Common Stock") held by the Issuer or any subsidiary of the Issuer as treasury stock or owned by Rawhide Holdings or any subsidiary of Rawhide Holdings immediately prior to the Merger will be cancelled and no payment will be made with respect thereto; (iii) each share of Merger Sub's common stock will be converted into and become one share of Common Stock; and (iv) each share of Common Stock outstanding immediately prior to the Merger will be cancelled, extinguished and converted into and become a right to receive $22.25 in cash per share (other than those shares as to which dissenters' rights are perfected). Shortly after the consummation of the Merger, the registration of the Common Stock under the Exchange Act will be terminated and the Common Stock will be delisted from the New York Stock Exchange and the Pacific Stock Exchange. In connection with the execution of the Merger Agreement, on October 1, 2000, Rawhide Holdings and Merger Sub entered into a Voting Agreement (the "Voting Agreement") with each of ADM, Booth Creek Partners Limited III, LLP ("Booth Creek") and Jeffrey J. Joyce ("Joyce"). Pursuant to the Voting Agreement, ADM agreed, among other things, (i) to vote the shares of Common Stock owned by ADM (the "Shares") to approve and adopt the Merger Agreement, the Merger and all agreements related to the Merger and any actions related thereto at any meeting or meetings of the stockholders of the Issuer and (ii) subject to certain exceptions, not to vote any of the Shares in favor of the approval of any other merger, consolidation, sale of assets, reorganization, recapitalization, liquidation or winding up of the Issuer or any other extraordinary transaction involving the Issuer or any matters related to or in connection therewith. Under the Voting Agreement, ADM has irrevocably appointed Rawhide Holdings as proxy for and on behalf of ADM to vote the Shares for the matters and in the manner contemplated by Item (i) above. ADM also agreed not to, directly or indirectly, (i) take any action to solicit, initiate or encourage any Acquisition Proposal (as defined in the Merger Agreement), (ii) engage in negotiations or discussions with, or disclose any nonpublic information relating to the Issuer or any subsidiary of the Issuer or afford access to the properties, books or records of the Issuer or any subsidiary of the Issuer to, or otherwise assist, facilitate or encourage, any Person (as defined in the Merger Agreement) that may be considered making, or had made, an Acquisition Proposal or (iii) acquire beneficial ownership of any shares of the Common Stock, other than pursuant to or as a result of the Voting Agreement. ADM has agreed with Rawhide Holdings and Merger Sub that if ADM Transfers any shares of Common Stock it owns while the Voting Agreement is in effect that it will require the transferee of such shares to execute and deliver a voting agreement identical in form to the Voting Agreement, except for the identity of the new stockholder, prior to or concurrently with any such Transfer. 5 Page 6 The parties to the Voting Agreement contemplate that, promptly following the Merger, the Board of Directors will be changed so as to consist of nine directors, one of whom will be nominated by ADM, one of whom will be nominated by Booth Creek, one of whom will be Robert L. Peterson (so long as he remains an officer of the Issuer), one of whom will be Richard L. Bond (so long as he remains an officer of the Issuer), and the remainder of whom, (including the chairman) will be nominated by the DLJ Merchant Banking Partners III, L.P. and certain affiliated entities ("DLJMB"), the majority shareholders of Merger Sub prior to the Merger. In addition, ADM entered into a Commitment Letter dated October 1, 2000 with Rawhide Holdings (the "Commitment Letter"), whereby ADM, DLJMB, and certain other investors have committed to contribute shares of the Common Stock to Rawhide Holdings in exchange for shares of the capital stock of Rawhide Holdings upon the occurrence of certain events specified in the letter. Under the terms of the Commitment Letter, ADM has committed to contribute 9,900,000 shares of Common Stock in exchange for 25% of the outstanding capital stock of Rawhide Holdings as of the effective time of the Merger. ADM has also entered into a Letter Agreement dated October 1, 2000 between DLJMB and each of ADM and Joyce (the "Letter Agreement") whereby DLJMB has agreed to purchase, immediately prior to the Merger, certain shares of Common Stock held by such parties at $22.25 per share subject to the same conditions contained in the Commitment Letter. Under the terms of the Letter Agreement, DLJMB has agreed to purchase 3,051,400 shares of Common Stock held by ADM. Except as set forth above, ADM has no plans or proposals which relate to or would result in any of the actions enumerated in clauses (a)-(j) of Item 4 of Schedule 13D under the Securities Exchange Act of 1934, as amended. Item 5. Interest in Securities of the Issuer. The Issuer is believed to have 105,578,277 shares of Common Stock outstanding. ADM beneficially owns 12,951,400 shares of the Common Stock or approximately 12.27% of the outstanding Common Stock described above and has shared power to vote or to direct the vote and shared power to dispose or direct the disposition of such shares pursuant to the Voting Agreement described in Item 4. Neither ADM nor any director or executive officer of ADM beneficially owns or has a right to acquire, directly or indirectly, any additional shares of Common Stock of the Issuer. During the past sixty days there have been no transactions in shares of Common Stock of the Issuer by ADM or any director or executive officer of ADM. Item 6. Contracts, Arrangements, Understandings or Relationships With Respect to Securities of the Issuer. ADM has entered into: (1) the Voting Agreement dated October 1, 2000 between Rawhide Holdings, Merger Sub and each of ADM, Booth Creek and Joyce; (2) the Commitment Letter dated October 1, 2000 between Rawhide Holdings and each of DLJMB, ADM, and certain other investors; and (3) the Letter Agreement dated October 1, 2000 between DLJMB and each of ADM and Joyce. See Item 4. 6 Page 7 Item 7. Materials to be Filed as Exhibits. 1. Voting Agreement dated October 1, 2000 between Rawhide Holdings, Merger Sub and each of ADM, Booth Creek and Joyce. 2. Commitment Letter dated October 1, 2000 between Rawhide Holdings and each of DLJMB, ADM, and certain other investors. 3.Letter Agreement October 1, 2000 between DLJMB and each of ADM and Joyce. Signature After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this Statement is true, complete and correct. Dated: October 3, 2000 ARCHER-DANIELS-MIDLAND COMPANY /s/D. J. SMITH By: D. J. Smith Its Vice President, Secretary and General Counsel 7 Page 8 APPENDIX I On October 15, 1996, the Company pled guilty to a two count information in the Northern District of Illinois pursuant to an agreement with the Department of Justice. This information states that the Company engaged in anticompetitive conduct in connection with the sale of lysine and citric acid. In connection with its agreement this Company paid the United States a fine of $70 million with respect to lysine and $30 million with respect to citric acid. On May 27, 1998, the Company pled guilty to a three count indictment in the Federal Court of Canada pursuant to an agreement with Director of Investigation and Research and the Attorney General of Canada. The indictment alleged that the Company engaged in anticompetitive conduct in connection with lysine and citric acid. The Company paid a fine of $16 million (Canadian Dollars). 8 EX-99 2 0002.txt VOTING AGREEMENT Page 1 VOTING AGREEMENT In consideration of Rawhide Holdings Corporation, a Delaware corporation ("Parent"), and Rawhide Acquisition Corporation, a Delaware corporation and wholly-owned subsidiary of Parent ("Merger Co."), entering into on the date hereof an Agreement and Plan of Merger (the "Merger Agreement") dated as of the date hereof with IBP, inc., a Delaware corporation (the "Company"), which provides, among other things, that Merger Co., upon the terms and subject to the conditions thereof, will be merged with and into the Company (the "Merger") and each outstanding share of common stock, $0.05 par value, of the Company (the "Company Common Stock") will be converted into the right to receive the Merger Consideration (as defined in the Merger Agreement) in accordance with the terms of such Agreement, each of the undersigned holders (each, a "Stockholder" and collectively, the "Stockholders") of shares of Company Common Stock agrees with Parent and Merger Co. as follows: 1. During the period (the "Agreement Period") beginning on the date hereof and ending on the earlier of (i) the Effective Time (as defined in the Merger Agreement), (ii) the date of any substantive amendment to the Merger Agreement (including, without limitation, any amendment that increases the Merger Consideration (as defined in the Merger Agreement)), which has not been approved in writing by the Stockholder and (iii) the date of termination of the Merger Agreement, the Stockholder hereby agrees to vote the shares of Company Common Stock set forth opposite its name in Schedule A hereto (the "Schedule A Securities") to approve and adopt the Merger Agreement, the Merger and all agreements related to the Merger and any actions directly and reasonably related thereto at any meeting or meetings of the stockholders of the Company, and at any adjournment thereof or pursuant to action by written consent, at or by which such Merger Agreement, or such other actions, are submitted for the consideration and vote of the stockholders of the Company. Parent agrees to notify the Stockholder promptly upon receipt by Parent, Merger Co. or DLJMB (as defined in the Merger Agreement) of any information relating to any Acquisition Proposal (as defined in the Merger Agreement) and to forward immediately to the Stockholder by telecopy any written material delivered to any of them relating to any such Acquisition Proposal. 2. During the Agreement Period, the Stockholder hereby agrees that it will not vote any of its Schedule A Securities in favor of the approval of any other merger, consolidation, sale of assets, reorganization, recapitalization, liquidation or winding up of the Company or any other extraordinary transaction involving the Company or any matters related to or in connection therewith, or any corporate action relating to or the consummation of which would either frustrate the purposes of, or prevent or delay the consummation of, the transactions contemplated by the Merger Agreement. 1 Page 2 3. During the Agreement Period, the Stockholder hereby irrevocably appoints Parent as proxy for and on behalf of such Stockholder to vote (including, without limitation, the taking of action by written consent) such Stockholder's Schedule A Securities, for and in the name, place and stead of such Stockholder for the matters and in the manner contemplated by paragraph 1 above. 4. During the Agreement Period, the Stockholder will not, directly or indirectly, (i) take any action to solicit, initiate or encourage any Acquisition Proposal (as defined in the Merger Agreement), (ii) engage in negotiations or discussions with, or disclose any nonpublic information relating to the Company or any Subsidiary or afford access to the properties, books or records of the Company or any Subsidiary to, or otherwise assist, facilitate or encourage, any Person (as defined in the Merger Agreement) that may be considering making, or has made, an Acquisition Proposal or (iii) acquire beneficial ownership (as defined in Rule 13d-3 of the Securities Exchange Act of 1934) of any shares of the Company Common Stock in addition to those set forth in Schedule A (other than pursuant to or as a result of this Voting Agreement). The Stockholder agrees to promptly notify Parent after receipt of any Acquisition Proposal or any indication from any Person that it is considering making an Acquisition Proposal or any request for nonpublic information relating to the Company or any Subsidiary or for access to the properties, books or records of the Company or any Subsidiary by any Person that may be considering making, or has made, an Acquisition Proposal and will keep Parent fully informed of the status and details of any such Acquisition Proposal, indication or request (in each case, to the extent permitted by any confidentiality agreement to which such Stockholder is a party). 5. The Stockholder hereby agrees not to exercise any rights (including, without limitation, under Section 262 of the Delaware General Corporation Law) to demand appraisal of any shares of Company Common Stock owned by such Stockholder in connection with the Merger. 6. The Stockholder hereby represents and warrants to Parent that as of the date hereof: (a) The Stockholder (i) owns beneficially all of the shares of Company Common Stock set forth opposite the Stockholders name in Schedule A hereto, and no other shares of Company Common Stock, (ii) has the full and unrestricted legal power, authority and right to enter into, execute and deliver this Voting Agreement without the consent or approval of any other person and (iii) has not entered into any voting agreement with or granted any person any proxy (revocable or irrevocable) with respect to such shares (other than this Voting Agreement). (b) This Voting Agreement is the valid and binding agreement of the Stockholder. (c) No investment banker, broker or finder is entitled to a commission or fee from the Stockholder or the Company in respect of this Agreement based upon any arrangement or agreement made by or on behalf of the Stockholder. 7. If any provision of this Voting Agreement shall be invalid or unenforceable under applicable law, such provision shall be ineffective to the extent of such invalidity or unenforceability only, without in any way affecting the remaining provisions of this Voting Agreement. 2 Page 3 8. This Voting Agreement may be executed in two or more counterparts each of which shall be an original with the same effect as if the signatures hereto and thereto were upon the same instrument. 9. The parties hereto agree that if for any reason any party hereto shall have failed to perform its obligations under this Voting Agreement, then the party seeking to enforce this Agreement against such non- performing party shall be entitled to specific performance and injunctive and other equitable relief, and the parties hereto further agree to waive any requirement for the securing or posting of any bond in connection with the obtaining of any such-injunctive or other equitable relief. This provision is without prejudice to any other rights or remedies, whether at law or in equity, that any party hereto may have against any other party hereto for any failure to perform its obligations under this Voting Agreement. 10. This Voting Agreement shall be governed by and construed in accordance with the laws of the State of Delaware. 11. The Stockholder will, upon request, execute and deliver any additional documents deemed by Parent to be necessary or desirable to complete and effectuate the covenants contained herein. 12. This Agreement shall terminate upon the termination of the Agreement Period. 13. The Stockholder hereby agrees that if it sells, transfers, assigns, encumbers or otherwise disposes (each, a "Transfer") of any Schedule A Securities (whether to an affiliate or otherwise) during the Agreement Period, such Stockholder shall require the transferee of such Schedule A Securities to execute and deliver to Parent, Merger Co. and the Company a voting agreement identical in form to this Voting Agreement except for the identity of the Stockholder prior to or concurrent with the consummation of such Transfer. Parent, Merger Co. and the Company understand and acknowledge that, subject to the preceding sentence, the Stockholder is free to Transfer any Schedule A Securities at such times and in such manner as it deems appropriate. 14. All other voting agreements signed with existing shareholders prior to or concurrently herewith are substantially identical to this Agreement. 15. Nothing in this Agreement, express or implied, shall confer on any person other than the parties hereto, and their respective successors and assigns, any rights, remedies, obligations, or liabilities under or by reason of this Agreement, except that clause 4(iii) of this Agreement shall inure to the benefit of the Company and the Company shall be entitled to enforce such clause to the same extent as if it were a party hereto. 16. All notices, requests and other communications to any party hereunder shall be in writing (including telecopy or similar writing) and shall be given, If to Parent or Merger Co., to: Thompson Dean c/o DLJ Merchant Banking III, Inc. 277 Park Avenue New York, New York 10172 Telecopy: 212-892-7272 3 Page 4 with a copy to: George R. Bason, Jr. Davis Polk & Wardwell 450 Lexington Avenue New York, New York 10017 Telecopy: 212-450-4800 If to Booth Creek Partners Limited III, LLLP or Jeffrey J. Joyce, to: Booth Creek Partners Limited III, LLLP 1000 South Frontage Rd., West Suite 100 Vail, Colorado 81657 Telecopy: 970-476-4030 Telephone: 970-476-4030 Jeffrey J. Joyce 954 New Bedford Court Marietta, Georgia 30068 Telecopy: 770-980-4905 Telephone: 770-980-4903 4 Page 5 with a copy to: Randall Doud Skadden, Arps, Slate, Meagher & Flom LLP 4 Times Square New York, New York 10036 Telecopy: 212-735-2000 Telephone: 212-735-2524 If to Archer-Daniels-Midland Company, to: David Smith, Esq. Archer-Daniels-Midland Company 4666 Faries Parkway P.O. Box 1470 Decatur, IL 62525 Telecopy: (217) 424-6196 Telephone: (217) 424-6183 with a copy to: James E. Nicholson Faegre & Benson LLP 2200 Wells Fargo Center 90 South Seventh Street Minneapolis, MN 55402 Telecopy: (612) 336-3026 Telephone: (612) 336-3203 or such other address or telecopy or telephone number as such party may hereafter specify for the purpose by notice to the other parties hereto. Each such notice, request or other communication shall be effective (a) if given by telecopy, when such telecopy is transmitted to the telecopy number specified in this Section and the appropriate telecopy confirmation is received or (b) if given by any other means, when delivered at the address specified in this Section. 5 Page 6 IN WITNESS WHEREOF, the parties hereto have executed this Voting Agreement as of the 1st day of October, 2000. RAWHIDE HOLDINGS CORPORATION By /s/Ari Benacerraf Name: Ari Benacerraf Title: President RAWHIDE ACQUISITION CORPORATION By /s/ Ari Benacerraf Name: Ari Benacerraf Title: President BOOTH CREEK PARTNERS LIMITED III, LLLP By /s/Jeffrey Joyce Name: Jeffrey Joyce Title: Executive Vice President JEFFREY J. JOYCE /s/Jeffrey Joyce ARCHER-DANIELS- MIDLAND COMPANY By /s/D. J. Smith Name: D. J. Smith Title: Vice President, Secretary and General Counsel 6 Page 7 SCHEDULE A
Stockholder Shares of Company Common Stock Booth Creek Partners 3,644,923 Limited III, LLLP Jeffrey J. Joyce 643,030 Archer-Daniels-Midland 12,951,400 Company
7 EX-99 3 0003.txt COMMITMENT LETTER Page 1 DLJ MERCHANT BANKING III, INC. October 1, 20000 We refer to (i) that certain commitment letter dated as of the date hereof to Rawhide Holdings Corporation ("Parent") from DLJ Merchant Banking Partners III, Inc. on behalf of DLJ Merchant Banking Partners III, L.P. and certain of its affiliated funds and entities ("DLJMB") and certain of its affiliates, Archer-Daniels-Midland Company ("ADM"), Booth Creek Partners Limited III, LLLP ("Booth Creek"), Jeffrey J. Joyce ("Joyce", and together with Booth Creek, the "Booth Creek Investors") and certain other persons (the "Equity Commitment Letter") and (ii) the Merger Agreement (the "Merger Agreement") dated as of the date hereof among Parent, Rawhide Acquisition Corporation ("Merger Co.") and IBP, inc. (the "Company"). DLJMB hereby agrees as follows: 1. Immediately prior to the Closing (as defined in the Merger Agreement), DLJMB and/or certain of its affiliates will purchase that number of shares of Common Stock of the Company from each of ADM, Booth Creek and Joyce as is set forth on Exhibit A hereto for $22.25 per share, subject to the same conditions as pertain to DLJMB=s obligations to fund its equity commitment to Parent under the Equity Commitment Letter. This is subject to execution and delivery of a purchase agreement satisfactory to DLJMB containing customary terms and conditions. The obligation set forth in this paragraph shall terminate in the event that the Agreement Period (as defined in the Voting Agreement dated as of the date hereof among Parent, Merger Co., ADM and the Booth Creek Investors (the "Voting Agreement") expires pursuant to either Sections 1(ii) or (iii) of the Voting Agreement. 2. If DLJMB or any of its affiliates proposes to acquire any Discount Debentures or Warrants (as defined in the Equity Commitment Letter) from Parent at or prior to the Closing, ADM, Booth Creek and Joyce shall each also have the right to acquire Discount Debentures and Warrants from Parent pro rata to their pro forma ownership of Common Stock (as set forth in the Equity Commitment Letter excluding Common Stock held by Management Investors (as defined therein)) at the same time and for the same price as DLJMB and/or such affiliates acquire such Discount Debentures and Warrants. 3. Except in any case where, pursuant to the last sentence of Section 8.01 of the Merger Agreement, ADM=s ownership of Parent is to be reduced, if the shares of Parent to be purchased by ADM pursuant to the Equity Commitment Letter will amount to more or less than 25% of the primary equity of Parent as of the Effective Time (as defined in the Merger Agreement), ADM shall have the right to acquire upon the terms set forth in the Equity Commitment Letter, a greater or lesser number of shares of Parent such that its ownership interest will amount to 25% of the primary equity of Parent as of the Effective Time. Very truly yours, 1 Page 2 DLJ MERCHANT BANKING III, INC. By /s/ Ivy Dodes Name: Ivy Dodes Title: Principal Accepted and agreed as of the date first above written: ARCHER-DANIELS-MIDLAND COMPANY By /s/D. J. Smith Name: D. J. Smith Title: Vice President, Secretary and General Counsel BOOTH CREEK PARTNERS LIMITED III, LLLP By /s/Jeffrey Joyce Name: Jeffrey Joyce Title: Executive Vice President JEFFREY J. JOYCE /s/Jeffrey Joyce 2 Page 3
EXHIBIT A Stockholder Number of Shares 3,051,400 Archer-Daniels-Midland Company Booth Creek Partners Limited III, 1,822,463 LLLP Jeffrey J. Joyce 321,514
3 EX-99 4 0004.txt LETTER AGREEMENT Page 1 October 1, 2000 PERSONAL AND CONFIDENTIAL Rawhide Holdings Corporation 277 Park Avenue New York, NY 10172 Ladies and Gentlemen: We understand that Rawhide Holdings Corporation ("Parent") proposes to acquire (the "Acquisition") IBP, inc. (the "Company") in the manner set forth below. You have advised us that you propose to acquire the Company pursuant to the terms of a merger agreement (the "Merger Agreement") to be entered into between Parent, Rawhide Acquisition Corporation ("Merger Co.") and the Company, which will provide that Merger Co. will be merged with and into the Company (the "Merger"). In the Merger, each outstanding share of common stock of the Company will be converted into the right to receive $22.25 in cash. Upon consummation of the Merger, the Company will be controlled, directly or indirectly, by the Investors (as defined below). You have advised us that the total amount of funds required to consummate the Merger, the surrender of outstanding employee and director stock options of the Company, the refinancing of certain existing indebtedness of the Company and the payment of related fees and expenses, will be approximately $3,894.2 million. It is anticipated that the Acquisition will be financed with: (a) borrowings by Merger Co. under a senior term loan of $1,148.3 million (the "Senior Borrowings"); (b) the issuance by Merger Co., for cash, of not more than $500.0 million of senior unsecured bridge notes and $400.0 million of senior subordinated unsecured bridge notes (the "Bridge Securities"); (c) the assumption by Merger Co. of all of the Company=s outstanding 7.95% Senior Notes due 2010, 7.45% Senior Notes due 2007, 6.125% Senior Notes due 2006 and 7.125% Senior Notes due 2026 (collectively, the "Continuing Senior Notes") in an aggregate principal amount of approximately $625.0 million and certain existing capital leases (the "Continuing Capital Leases") in an aggregate principal amount of approximately $26.7 million; and (d) the issuance, for both cash and non-cash proceeds, of (i) $994.2 million of common stock of Parent ("Common Stock") and (ii) $200.0 million of senior discount debentures of Parent and warrants to purchase Common Stock ("Discount Debentures and Warrants"), to be purchased by the Investors or certain other persons. The Acquisition and transactions related or incidental thereto, including the raising of funds required to consummate the Acquisition is hereafter referred to as the "Transaction". We are pleased to advise you that each of (i) DLJ Merchant Banking Partners III, L.P. and certain affiliated entities (collectively, the "DLJMB Investors"), (ii) Booth Creek Partners Limited III, LLLP, Jeffrey J. Joyce and Archer-Daniels-Midland Company (the "Co-Investors") and (iii) Robert L. Peterson and Richard L. Bond (the "Management Investors" and, together with the DLJMB Investors and Co-Investors, the "Investors") hereby, severally, and not jointly, commit (the "Commitment") to purchase Common Stock and Discount Debentures and Warrants of Parent at such aggregate prices and for such consideration as, in each case, are set forth opposite its name on the signature pages attached hereto. Each Investor shall purchase such securities at the same purchase price per security (i.e. $22.25 whether payable in cash or in stock of the Company) as each other Investor. This Commitment is subject to the following 1 Page 2 conditions: (i) Parent and Merger Co. shall have entered into the Merger Agreement and related documents with the Company providing for the Merger of Merger Co. and the Company, with the Company continuing as the surviving corporation, in the form previously provided; (ii) Merger Co. shall have entered into a credit facility and related documents (the "Credit Documentation") with DLJ Capital Funding Inc. ("Capital Funding") or an affiliate thereof providing for the Senior Borrowing referred to above, all of which shall be in form and substance reasonably satisfactory to, and none of which shall have been amended without the written consent of, the DLJMB Investors and the Co-Investors (it being understood that to the extent that (A) the terms of any Credit Documentation have been specifically agreed in that certain Commitment Letter and Term Sheet dated October 1, 2000 between Capital Funding and the undersigned, and (B) the Credit Documentation embodies such specifically agreed terms, then, as to such specifically agreed terms, the Credit Documentation will be deemed to be reasonably satisfactory to the DLJMB Investors and the Co-Investors; (iii) Merger Co. shall have entered into securities purchase agreements with DLJ Bridge Finance Inc. ("DLJ Bridge Fund") or an affiliate relating to the purchase by DLJ Bridge Fund or such affiliate of the Bridge Securities (the "Bridge Documentation"), all of which shall be in form and substance reasonably satisfactory to, and none of which shall have been amended without the prior written consent of, the DLJMB Investors and the Co-Investors (it being understood that to the extent that (A) the terms of any Bridge Documentation have been specifically agreed in that certain Commitment Letter and Term Sheet dated October 1, 2000 between DLJ Bridge Fund and the undersigned and (B) the Bridge Documentation embodies such specifically agreed terms, then, as to such specifically agreed terms, the Bridge Documentation will be deemed to be reasonably satisfactory to the DLJMB Investors and the Co-Investors); (iv) the terms of the Common Stock and the Discount Debentures and Warrants shall be reasonably satisfactory to the DLJMB Investors and the DLJMB Investors shall have entered into definitive documentation relating to the Common Stock and the Discount Debentures and Warrants to be purchased by them in form and substance reasonably satisfactory to the DLJMB Investors; (v) the absence of any Material Adverse Effect (as defined in the Merger Agreement); (vi) any waiting period applicable to the purchase of Common Stock, Discount Debentures and Warrants contemplated hereby under the Hart- Scott-Rodino Antitrust Improvement Act of 1976 shall have expired or been terminated; and (vii) each of the foregoing transactions, financings or borrowings shall be consummated substantially simultaneously with any funding of the commitments described herein. This Commitment is not assignable by you. Nothing in this letter, expressed or implied, shall give any person, other than the parties hereto, any benefit or any legal or equitable right, remedy or claim under this letter. Parent agrees to indemnify and hold each of the Investors and DLJ Merchant Banking III, Inc. harmless to the extent set forth in Exhibit A to this letter. At closing, Parent agrees to reimburse each of the Investors and DLJ Merchant Banking III, Inc. for all reasonable out-of-pocket costs, expenses and other payments, including but not limited to legal fees and disbursements, incurred or made in connection with the Transaction. This Commitment supersedes all prior commitments and undertakings, both written and oral, by any of the undersigned with respect to the subject matter thereof. This Commitment will expire on the earlier to occur of (i) 5:00 p.m., New York time, October 6, 2000 unless accepted prior to such date and, if accepted prior to such date, will expire at 5:00 p.m., New York time, on March 31, 2001, unless the definitive agreements relating to the purchase of Common Stock, Discount Debentures and Warrants by the DLJMB Investors, the Co-Investors and the Management Investors shall have been executed and delivered and (ii) the date of expiration of the Agreement Period (as defined in the Voting Agreement dated as of the date hereof among Parent, Merger Co. and the Co-Investors (the "Voting Agreement")) pursuant to either Sections 1(ii) or 1(iii) of the Voting Agreement. This Commitment shall be governed by, and construed in accordance with, the laws of the State of New York. 2 Page 3 Please confirm that the foregoing is in accordance with your understanding by signing and returning to us an executed duplicate of this letter. Upon your acceptance hereof, this letter will constitute a binding agreement among us. Very truly yours, DLJ MERCHANT BANKING III, INC. on behalf of DLJ Merchant Banking Partners III, L.P. and other affiliated funds and entities to be named By: /s/Ivy Dodes Name: Ivy Dodes Title: Principal ARCHER-DANIELS-MIDLAND COMPANY By: /s/D. J. Smith Name: D. J. Smith Title: Vice President, Secretary and General Counsel BOOTH CREEK PARTNERS LIMITED III, LLLP By: /s/ Jeffrey Joyce Name: Jeffrey Joyce Title: Executive Vice President JEFFREY J. JOYCE /s/Jeffrey Joyce 3 Page 4 ROBERT L. PETERSON /s/Robert L. Peterson RICHARD L. BOND /s/Richard L. Bond Accepted and agreed as of the date first above written: RAWHIDE HOLDINGS CORPORATION By: /s/Ari Benacerraf Name: Ari Benacerraf Title: President 4 Page 5 PARENT SECURITIES TO BE PURCHASED B COMMON STOCK AND DISCOUNT DEBENTURES AND WARRANTS DLJ MERCHANT BANKING Aggregate Purchase PARTNERS III, L.P. and other Price: Affiliated funds and entities $911,640,546.51 to be named PARENT SECURITIES TO BE PURCHASED B COMMON STOCK ARCHER-DANIELS-MIDLAND Aggregate Purchase COMPANY Price: $220,275,000.0 Method of Payment: 9,900,000 shares of IBP, inc. Common Stock BOOTH CREEK PARTNERS Aggregate Purchase LIMITED III, LLLP Price: $40,549,735.0 Method of Payment: 1,822,460 shares of IBP, inc. Common Stock JEFFREY J. JOYCE Aggregate Purchase Price: $7,153,731.0 Method of Payment: 321,516 shares of IBP, inc. Common Stock ROBERT L. PETERSON Aggregate Purchase Price Price: $12,895,200.0 Method of Payment: $2,500,000.0 cash and 467,200 shares of IBP, inc. Common Stock RICHARD L. BOND Aggregate Purchase Price Price: $1,685,787.5 Method of Payment: $1,500,000 cash and 8,350 shares of IBP, inc. Common Stock 5 Page 6 EXHIBIT A Rawhide Holdings Corporation (the "Indemnitor") agrees to indemnify and hold harmless each Investor (as defined in the letter agreement to which this Exhibit A is attached (the "Letter Agreement")) and DLJ Merchant Banking III, Inc. and each of their respective affiliates and partners, and each of their affiliates, and the respective directors, officers, agents and employees of any of the foregoing (collectively, the "Investor Group") from and against any claims, actions, proceedings, demands, liabilities, damages, judgments, assessments, losses, costs, including fees and expenses, and other liabilities arising out of or in connection with the Commitment (as such term is defined in the Letter Agreement), the transactions contemplated thereby, or any actions or inactions on behalf of any of the members of the Investor Group in connection with any such Commitment or transactions and will reimburse any member of the Investor Group for all such fees and expenses, including the reasonable fees of counsel, as they are incurred by any member of the Investor Group in connection with any pending or threatened litigation, whether or not any member of the Investor Group is a party. The Indemnitor will, however, not be responsible to any member of the Investor Group for any claims, liabilities, losses, damages or expenses that are determined by final judgment of a court of competent jurisdiction to have resulted solely from such member's willful breach of its Commitment or gross negligence or willful misconduct in connection with any of the actions or inactions referred to above. The Indemnitor also agrees that no member of the Investor Group shall have any liability, whether in contract, tort or otherwise, for claims, liabilities, damages, losses or expenses, including legal fees, incurred by the Indemnitor unless they are determined by final judgment of a court of competent jurisdiction to have resulted solely from such member's willful breach of the Commitment or gross negligence or willful misconduct in connection with any of the actions or inactions referred to above. In case any action shall be brought against any member of the Investor Group with respect to which indemnity may be sought against the Indemnitor under this agreement, such member of the Investor Group shall promptly notify the Indemnitor in writing; provided that failure to do so shall not relieve the Indemnitor from any liability it may have on account of this indemnity or otherwise, except to the extent the Indemnitor shall have been materially prejudiced by such failure. The Indemnitor shall, if requested by DLJ Merchant Banking III, Inc., assume the defense of any such action or proceeding, including the employment of counsel satisfactory to DLJ Merchant Banking III, Inc. and the payment of all fees and expenses related thereto. DLJ Merchant Banking III, Inc. shall have the right to employ separate counsel in such action and participate in the defense thereof, but the fees and expenses of such separate counsel shall be at the expense of DLJ Merchant Banking Inc. unless: (i) the Indemnitor has failed to assume the defense and employ counsel satisfactory to DLJ Merchant Banking III, Inc. or (ii) the named parties to any such action (including any impleaded parties) include any member of the Investor Group and the Indemnitor, and DLJ Merchant Banking III, Inc. shall have been advised by such separate counsel that there may be one or more legal defenses available to it (or such other member of the Investor Group) which are different from or additional to those available to the Indemnitor, provided, however, that the Indemnitor shall not in such event be responsible hereunder for the fees and expenses of more than one such firm of separate counsel, in addition to any local counsel. The Indemnitor will not be liable for any settlement of any such action effected without the written consent of the Indemnitor (which shall not be unreasonably withheld), and, except as provided above, the Indemnitor agrees to indemnify and hold harmless each member of the Investor Group from and against any loss or liability by reason of settlement of any action effected with the consent of the Indemnitor. In addition, the Indemnitor will not, without the prior written consent of DLJ Merchant Banking III, Inc., settle, compromise or consent to the entry of any judgment in or otherwise seek to terminate any pending or threatened action in respect of which indemnification or reimbursement may be sought hereunder (whether or not any member of the Investor Group is a party thereto), unless such settlement, compromise, consent or termination includes an unconditional release of each of the members of the Investor Group from all claims, actions, proceedings, demands, liabilities, damages, judgments, assessments, losses, costs and other liabilities arising out of such action. 6 Page 7 If any term, provision, covenant or restriction contained in this Exhibit A is held by a court of competent jurisdiction or other authority to be invalid, void, unenforceable or against its regulatory policy, the remainder of the terms, provisions, covenants and restrictions contained herein shall remain in full force and effect and shall in no way be affected, impaired or invalidated. The obligations of the Indemnitor set forth herein shall apply to any modification of the Letter Agreement and shall remain in full force and effect regardless of any termination of, or the completion of the members of the Investor Group=s obligations under the Commitment and services under or in connection with, such agreement. 7 _______________________________ fn1 Consisting of: (i) $711,640,546.5 in both cash and shares of IBP, inc. Common Stock valued at $22.25 per share and (ii) $200,000,000 of Discount Debentures and Warrants. -----END PRIVACY-ENHANCED MESSAGE-----