asset acquisitions - Jackson Walker LLP

litigation in an expeditious and business-like manner. However, our dutiesdictate that we preserve Tyson's rights and protect the interests of ourshareholders.If our belief is proven wrong and the Merger Agreement is not rescinded,this letter will serve as Tyson's notice, pursuant to sections 11.01(f) and12.01 of the Merger Agreement, of termination.The day after Tyson filed suit in Arkansas, IBP filed its specific performancelawsuit in Delaware. The Delaware Court ruled that because the confidentialityagreement between the parties contained a provision designating Delaware as theexclusive jurisdiction for disputes under that agreement, complete justice could not beachieved unless the entire matter was decided by the Delaware Court. See Comment toSection 13.4 of the Model Agreement elsewhere herein.In the Delaware case, Tyson claimed that it had justification to terminate theMerger Agreement because: (a) an impairment charge that IBP took with respect to itsfood processing division and IBP’s last quarter 2000 and first quarter 2001 performancewas evidence of a Material Adverse Effect with respect to IBP’s business; and (b) IBPbreached the financial statement representation in the Merger Agreement as evidenced byits later restatement of its financial statements. Tyson also claimed that it wasfraudulently induced to enter into the Merger Agreement because IBP failed to provideTyson with the SEC comment letter and other information about the food processingdivision.Confidentiality AgreementIn order to do due diligence review in connection with the negotiation of thedefinitive Merger Agreement, Tyson and IBP executed a “Confidentiality Agreement”which would permit Tyson to have access to non-public, due diligence information aboutIBP. That Confidentiality Agreement contained a broad definition of “EvaluationMaterial” that stated (emphasis added):For purposes of this Agreement, Evaluation Material shall mean allinformation, data, reports, analyses, compilations, studies, interpretations,projections, forecasts, records, and other materials (whether preparedby the Company, its agent or advisors or otherwise), regardless of theform of communication, that contain or otherwise reflect informationconcerning the Company that we or our Representatives may beprovided by or on behalf of the Company or its agents or advisors in thecourse of our evaluation of a possible Transaction.The Confidentiality Agreement carved out from the definition the following:This Agreement shall be inoperative as to those particular portions of theEvaluation Material that (i) become available to the public other than as aresult of a disclosure by us or any of our Representatives, (ii) wereavailable to us on a non-confidential basis prior to the disclosure of suchEvaluation Material to us pursuant to this Agreement, or (iii) becomes3068470v1Appendix H – Page 3