asset acquisitions - Jackson Walker LLP

available to us or our Representatives on a non-confidential basis from asource other than the Company or its agents or advisors provided that thesource of such information was not know by us to be contractuallyprohibited from making such disclosure to us or such Representative.The Confidentiality Agreement thus defines Evaluation Material to includeessentially all non-public information in IBP’s possession, regardless of whether the IBPemployees or agents prepared it. The Confidentiality Agreement also provided:We understand and agree that none of the Company, its advisors or any oftheir affiliates, agents, advisors or representatives (i) have made or makeany representation or warranty, expressed or implied, as to the accuracy orcompleteness of the Evaluation Material or (ii) shall have any liabilitywhatsoever to us or our Representatives relating to or resulting from theuse of the Evaluation Material or any errors therein or omissionstherefrom, except in the case of (i) and (ii), to the extent provided in anydefinitive agreement relating to a Transaction.”Thus, the Confidentiality Agreement in essence provided that Tyson could not rely oninformation obtained in its due diligence unless covered by an express representation orwarranty in the Merger Agreement.The Merger Agreement’s Basic Terms and StructureThe Merger Agreement contemplated that:• Tyson would make a cash tender offer (the “Cash Offer”) for $30 per IBPshare for 50.1% of the outstanding IBP shares.• Tyson would couple the cash tender offer with an “Exchange Offer” inwhich it would offer $30 of Tyson stock (subject to a collar) for each shareof IBP stock. This would permit IBP stockholders who wished toparticipate in the potential benefits of the Tyson/IBP combination to do so.• The Cash Offer would close no later than February 28, 2001, unless theclosing condition set forth in Annex I of the Merger Agreement were notsatisfied, and be followed by a merger in which IBP stockholders wouldreceive $30 in Tyson stock (subject to a collar).• If the conditions to the Cash Offer were not met by February 28, 2001,Tyson would proceed with a “Cash Election Merger” to close on or beforeMay 15, 2001 unless the closing conditions set forth in Annex III of theMerger Agreement were not satisfied. In the Cash Election Merger, IBPstockholders would be able to receive $30 in cash, $30 in Tyson stock(subject to a collar), or a combination of the two.Primarily implicated in the litigation were the following representations andwarranties in the Merger Agreement (emphasis added):3068470v1Appendix H – Page 4