IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
 

IN RE IBP, INC. SHAREHOLDERS LITIGATION
IBP, INC.,

Defendant and Cross-Claim Plaintiff, and Counterclaim Defendant,

V.

TYSON FOODS, INC. and LASSO ACQUISITION CORPORATION,

Defendants, Cross-Claim Defendants and Counterclaim Plaintiffs.

Consolidated Civil Action No. 18373

OPINION

Date Submitted: June 3, 2001
Date Decided: June 15, 2001
Date Corrected: June 18, 2001

Joseph A. Rosenthal, Esquire, of ROSENTHAL, MONHAIT, GROSS & GODDESS, Wilmington, Delaware; Of Counsel: Stanley D. Bernstein, Esquire, of BERNSTEIN LIEBHARD & LIFSHITZ, New York, New York, Attorneys for Plaintiffs.

William D. Johnston, Christian Douglas Wright, Danielle B. Gibbs, Esquires, of YOUNG CONAWAY STARGATT & TAYLOR, Wilmington, Delaware; Of Counsel: Bernard W. Nussbaum, Peter C. Heiin Kenneth B. Forrest, Eric M. Roth, Marc Wolinsky, George T. Conway, III, Elaine P. Golin, Don W. Cruse, Jr., Esquires, of WACHTELL, LIPTON, ROSEN & KATZ, New York, New York, Attorneys for Defendants John J. Jacobson, Jr., Wendy L. Gramm Martin A. Massengale, Michael L. Sanmen and Jo Ann R. Smith, and Defendant and Cross Claim Plaintiff and Counterclaim Defendant IBP, Inc.

Anthony W. Clark, Robert S. Saunders, Martina Bernstein, Julie A. Tostrup Kara R. Yancey, Darryl A. Parson, Esquires, of SKADDEN, ARPS, SLATE, MEAGHER & FLOM, Wilmington, Delaware; OF COUNSEL: Matthew R. Kipp, Vincent P. Schmeltz III, Ryan J. Rohlfsen, Cyrus Amir-Mokri, Esquires, of SKADDEN, ARPS, SLATE, MEAGHER & FLOM; James B. Blair, Esquire, of LAW OFFICES OF JAMES B. BLAIR, Springdale, Arkansas; Jennifer Hendren, Esquire, of HENDREN LAW FIRM, Fayetteville, Arkansas; Kenneth R. Shemin, Esquire, of SHEMIN LAW FIRM, Fayetteville, Arkansas; Ruth Ann Wisener, Esquire, of CONNER & WINTERS, Fayetteville, Arkansas; Attorneys for Defendants and Counterclaim Plaintiffs Tyson Foods, Inc. and Lasso Acquisition Corporation.

STRINE, Vice Chancellor

This post-trial opinion addresses a demand for specific performance of a "Merger Agreement" by IBP, Inc., the nations number one beef and number two pork distributor. By this action, IBP seeks to compel the "Merger" between itself and Tyson Foods, Inc., the nations leading chicken distributor, in a transaction in which IBP stockholders will receive their choice of $30 a share in cash or Tyson stock, or a combination of the two.

The IBP-Tyson Merger Agreement resulted from a vigorous auction process that pitted Tyson against the nations number one pork producer, Smithfield Foods. To say that Tyson was eager to win the auction is to slight its ardent desire to possess IBP. During the bidding process, Tyson was anxious to ensure that it would acquire IBP, and to make sure Smithfield did not. By succeeding, Tyson hoped to create the worlds preeminent meat products company -- a company that would dominate the meat cases of supermarkets in the United States and eventually throughout the globe.

During the auction process, Tyson was given a great deal of information that suggested that IBP was heading into a trough in the beef business. Even more, Tyson was alerted to serious problems at an IBP subsidiary, DFG, which had been victimized by accounting fraud to the tune of over $30 million in charges to earnings and which was the active subject of an asset impairment study. Not only that, Tyson knew that IBP was projected to fall seriously short of the fiscal year 2000 earnings predicted in projections prepared by IBPs Chief Financial Officer in August, 2000.

By the end of the auction process, Tyson had come to have great doubts about IBPs ability to project its future earnings, the credibility of IBPs management, and thought that the important business unit in which DFG was located -- Foodbrands -- was broken.

Yet, Tysons ardor for IBP was such that Tyson raised its bid by a total of $4.00 a share after learning of these problems. Tyson also signed the Merger Agreement, which permitted IBP to recognize unlimited additional liabilities on account of the accounting improprieties at DFG. It did so without demanding any representation that IBP meet its projections for future earnings, or any escrow tied to those projections.

After the Merger Agreement was signed on January 1, 2001 Tyson trumpeted the value of the merger to its stockholders and the financial community, and indicated that it was fully aware of the risks that attended the cyclical nature of IBPs business. In early January, Tysons stockholders ratified the merger agreement and authorized its management to take whatever action was needed to effectuate it.

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During the winter and spring of 2001 Tysons own business performance was dismal. Meanwhile, IBP was struggling through a poor first quarter. Both companies problems were due in large measure to a severe winter, which adversely affected livestock supplies and vitality. As these struggles deepened, Tysons desire to buy IBP weakened.

This cooling of affections first resulted in a slow-down by Tyson in the process of consummating a transaction, a slow-down that was attributed to IBPs on-going efforts to resolve issues that had been raised about its financial statements by the Securities and Exchange Commission ("SEC"). The most important of these issues was how to report the problems at DFG, which Tyson had been aware of at the time it signed the Merger Agreement. Indeed, all the key issues that the SEC raised with IBP were known by Tyson at the time it signed the Merger Agreement. The SEC first raised these issues in a faxed letter on December 29, 2000 to IBPs outside counsel. Neither IBP management nor Tyson learned of the letter until the second week of January, 2001. After learning of the letter, Tyson management put the Merger Agreement to a successful board and stockholder vote.

But the most important reason that Tyson slowed down the Merger process was different: it was having buyers regret. Tyson wished it had

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paid less especially in view of its own compromised 2001 performance and IBPs slow 2001 results.

By March, Tysons founder and controlling stockholder, Don Tyson, no longer wanted to go through with the Merger Agreement. He made the decision to abandon the Merger. His son, John Tyson, Tysons Chief Executive Officer, and the other Tyson managers followed his instructions. Don Tyson abandoned the Merger because of IBPs and Tysons poor results in 2001, and not because of DFG or the SEC issues IBP was dealing with. Indeed, Don Tyson told IBP management that he would blow DFG up if he were them.

After the business decision was made to terminate, Tysons legal team swung into action. They fired off a letter terminating the Agreement at the same time as they filed suit accusing IBP of fraudulently inducing the Merger that Tyson had once so desperately desired.

This expedited litigation ensued, which involved massive amounts of discovery and two weeks of trial.¹

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In this opinion, I address IBP's claim that Tyson had no legal basis to avoid its obligation to consummate the Merger Agreement, as well as Tysons contrary arguments. The parties extensive claims are too numerous to summarize adequately, as are the courts rulings. ^*

At bottom, however, I conclude as follows:

• The Merger Agreement and related contracts were valid and enforceable contracts that were not induced by any material misrepresentation or omission;
• The Merger Agreement specifically allocated certain risks to Tyson, including the risk of any losses or financial effects from the accounting improprieties at DFG, and these risks cannot serve as a basis for Tyson to terminate the Agreement;
• None of the non-DFG related issues that the SEC raised constitute a contractually permissible basis for Tyson to walk away from the Merger;
• IBP has not suffered a Material Adverse Effect within the meaning of the Agreement that excused Tysons failure to close the Merger; and
• Specific performance is the decisively preferable remedy for Tysons breach, as it is the only method by which to adequately redress the harm threatened to IBP and its stockholders.

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I. Factual Background

IBPs Key Managers

IBP was first incorporated in 1960. Its current Chairman of the Board and Chief Executive Officer, Robert Peterson, has been with the company from the beginning. Having started in the cattle business as a cattle driver, Peterson learned the business from the ground up and has been the strategic catalyst behind IBPs growth from a relatively small fresh beef business to a diversified food company with sales of over $15 billion annually.

Peterson is a strong and committed CEO, who loves the business he has helped build and the people who work for it. By the late 1990s, however, Peterson was in his late sixties and cognizant that it would soon be time to turn the reins over to a new CEO. Petersons heir apparent was IBPs President and Chief Operating Officer, Richard "Dick" Bond. By 2000, Peterson had also installed one of his top aides, Larry Shipley, as IBPs Chief Financial Officer. Sheila Hagen was IBPs General Counsel, having joined the company from one of its beef industry rivals.

Although this quartet all have important roles in the company, it is clear that Peterson remains the dominant manager at IBP, and that Bond is the next most important. Shipley and Hagen however, each have important duties regarding financial and legal functions at issue in this case. As in any

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organization, the roles of the four overlapped, but imperfectly so. Put less obliquely, it is common for big picture" executives to view and speak about issues from a larger strategic perspective that is less specific and technically precise than executives like CFOs and General Counsels who are charged with getting the details precisely right.

IBP's Business

The traditional business of IBP is being a meat processor that acts as the middleman between ranchers and retail supermarkets and food processors. This is the so-called "fresh meats" business of IBP. Over the years, that business has evolved in sophistication so that just about every inch of the animals eventually can be processed by IBP or a later purchaser into something useful. The fresh meats business has also gotten more and more precise in terms of slaughtering. Whereas very large sections of animals used to be shipped to end-users, the industry trend is for middlemen like IBP to do more of the cutting.

As of 2000, IBP was on the verge of taking that strategy to its next level. Instead of shipping large sections of meat to stores for further butchering, IBP was preparing to butcher meat itself, which would be shipped "case ready" - that is, ready to be put into the supermarket case.

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This was a new endeavor that was hoped to yield higher margins and reduce the overall cyclicality of IBPs business.

Likewise, IBP was endeavoring to build up its food processing businesses. These are the businesses that take raw food products and turn them into something canned or packaged for supermarket or restaurant sale. Because these processing activities "add value," they tend to have higher profit margins and generate more stable earnings than middleman meat slaughtering.

To carry out this strategy, IBP had recently made a series of acquisitions, including the purchase of Corporate Food Brands America, Inc. ("CFBA") in February 2000. These purchased entities were being put together within IBP under the larger heading of Foodbrands. The companies make a variety of products, such as pizza toppings and crusts, side dishes, sauces, condiments, and portion-controlled meat products. IBP was also intent on promoting a branded line of lunch meat and similar products under the name "Thomas E. Wilson."

IBP hoped that these processed food investments would provide a vehicle for growth and reduce the year-to-year volatility of IBPs earnings. Given that most of the acquired companies within Foodbrands had been

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purchased no earlier than 1998, IBP was obviously quite early in executing this yet-to-be fully proven strategy. Moreover, while Foodbrands was a central part of IBPs strategy for

the future, it remained at that time a much smaller contributor to the bottom line than IBPs fresh meats business. As originally reported, for example, fiscal year ("FY") 1999 sales for IBPs fresh meats business were $12.4 billion as opposed to $1.7 billion for Foodbrands.²  Similarly, FY 1999 operating earnings in the fresh meats business were $438 million as opposed to $90 million for Foodbrands.³ Thus, while Foodbrands had a higher profit margin, fresh meats remained by far the most substantial part of IBPs business.

IBP Management Proposes An LBO

During 1999 and early 2000, IBPs management was frustrated by the stock markets valuation of the companys stock. As earnings-less dot.coms traded at huge multiples to eyeball hits, IBPs stock traded at a relatively small multiple to actual earnings. In response to this problem, Peterson, Bond, and Shipley were receptive when the investment bank of Donaldson,

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Lufkin & Jenrette, Inc. ("DLJ") expressed interest in a leveraged-buy out ("LBO") of the company.

In July, management informed the IBP board that it would like to pursue an LBO seriously. With the help of DLJ, a syndicate of investors who called themselves "Rawhide" was prepared to take the company private if a deal could be negotiated with the IBP board. The board formed a special committee comprised of outside directors, who then selected Wachtell, Lipton, Rosen & Katz as its legal advisor and J.P. Morgan Securities, Inc. as its financial advisor.

To facilitate their work, the special committee and J.P. Morgan asked IBP management to develop a set of five-year projections for the performance of IBP, which I will call the "Rawhide Projections" or the "Projections."  This request put the IBP management in the position of performing a task that was relatively novel to them. While IBP had periodically prepared two to three-year projections for rating agencies, it was not accustomed to making five-year projections. Even more important, it did not utilize such long-term projections in its own business operations.

To the contrary, IBP generally created plans for the coming year. In the fresh beef part of the business, these plans were quite ambitious and designed to motivate excellent performance, rather than to be predictive of

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actual results. The plans for the processed foods part of the business were designed to be more predictive, but these plans also dealt with the part of the business that was newest, and that included several units that had been recently purchased by IBP.

Several other factors made it difficult to project IBPs performance accurately. Although IBP was executing a strategy to diversify its business so as to be less dependent on its fresh meats business, the reality was that fresh meats was still the core of the company, constituting well over 80% of its sales and earnings in 1999. Not only that, IBPs processed foods division used fresh meats heavily.

As a middleman processor of fresh meats, IBP purchases cows and hogs at market prices, slaughters them, and sells them to food retailers and food processors. IBPs profit margins are quite tight. When live stock supplies are low, these margins shrink further. When livestock supplies are plentiful, IBP is more profitable.

Cattle and hog supplies go through cycles that can be tracked with some general precision using information from the United States Department of Agriculture. These cycles are affected by actual demand and ranchers expectations of market demand, as well as the need at various points to hold animals back to build up herds. Livestock supply is also heavily weather-

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driven. Ranchers are paid more money for large animals, from which more meat can be butchered. Cold weather makes it difficult for ranchers to grow the animals to the point where they will sell for the optimal price. When a severe winter hits, ranchers may hold animals back, so that they can be sold later after having been grown to more profitable sizes.

IBPs Foodbrands business was also affected by fluctuations in livestock pricing, because it uses fresh meats as raw material. While Foodbrands has a relatively greater ability to make up for any shortage in livestock than the fresh meats part of IBP, Foodbrands also suffers when livestock supplies are tight and is unable to pass on its increased costs immediately. Instead, it hopes to regain its reduced margins within a reasonable time.⁴

For all these reasons, IBPs management was wary of preparing a five-year projection, but did so. The task fell largely to Shipley as CFO. His methodology was sound and reasonable, if not scientific. In sum, Shipleys August, 2000 Rawhide Projections assumed as follows:

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Fresh Meats:

A Beef: Shipley estimates for FY 2000 profitability ("EBIT⁵ per head") and volume were based on first-half results and projected to continue through the rest of the year. Thus, he projected EBIT per head of $27.50. But Shipley assumed a sharp decline in EBIT per head in 2001 to $16.50 per head, and a further decline in 2002 to $15.00, and a modest increase from 2003 to 2005. Profitability during this period was expected to remain fairly flat⁶ Shipley based his estimates on an expected trough in the cattle cycle, in view of historical trends.

Pork: Shipley used the same per-head EBIT figure for all five years, derived from IBPs historical average, with a slight upward adjustment for industry rationalization. Overall EBIT fluctuated, but was fairly steady throughout.

• Logistics/Other: This category deals with IBPs trucking and freezer businesses. Shipley simply assumed that FY 2000 estimated profits would be repeated in each of the projected years because it was a stable business.

• Case Ready: Shipley used managements existing assumptions. These projected losses for 2000 and 2001, and profitability in years 2002-2005.

• Foodbrands: Shipley divided Foodbrands into three basic categories as follows:

Thomas E. Wilson Shipley assumed that IBPs venture into branded ready-to-eat or cooked meat products would lose money until 2003, when it would begin to be profitable.

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IBP Foods: This was a unit comprised of businesses that IBP had purchased out of bankruptcy. Shipley projected losses in 2000 and 2001, and profitability in the remaining years.

A Other Foodbrands: - This was the heart of Foodbrands business. Shipley assumed 2000 EBIT of $157 million with a steady growth rate of 8% for the remaining years.

The overall picture for Foodbrands therefore was a composite of these assumptions that had Foodbrands producing $125 million in EBIT in 2000, $137 million in 2001, and growing to nearly $300 million by 2005. The $125 million EBIT number excluded $42.5 million in one-time costs associated with IBP's acquisition of CFBA and the write-off of bad debt relating to a customer (together, the "CFBA Charges"). Shipley excluded the CFBA Charges because they were a non-recurring cost that was not expected to affect Foodbrands going-forward. All users of the Rawhide Projections relevant to this opinion were made aware of this feature of Shipleys analysis.

Shipleys assumptions were reasonable given the inherent imprecision of the task he was given. In reaching this conclusion, I also find that the Rawhide Projections were prepared with particular users in mind: a sophisticated special committee and investment bank that would understand that projections of this kind are at best a useful roadmap to where a business may go if the assumptions used in the model pan out and if the companys

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business plan is executed well. Shipley reasonably assumed that the users of the Projections would approach them with the sort of intrinsic skepticism and caution that one expects from seasoned professionals, rather than with the unquestioning attitude of a believer at the foot of a prophet.

The IBP Board Accents A Bid From The Rawhide Group

After several months of negotiations, the Rawhide Group and the special committee struck a deal on October 1, 2000 whereby the Rawhide Group would purchase all of IBPs shares at $22.25 per IBP share. At a special committee meeting in connection with approval of the transaction, Peterson expressed his view that IBP's performance for the second half of the year was softening, and that overall EBIT for FY 2000 might be $500 to $525 million, a range that was lower than the Rawhide Projection estimate that had been performed in August.

The Rawhide deal was publicly announced the next day. By this time, rumors had been circulating within the financial community about the possibility of such a deal.

The announcement of the transaction inspired class action lawsuits in this court, alleging that the transaction was unfair. These suits were filed irrespective of the minimal barriers that existed to a higher transaction.

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Problems At DFG Foods Begin To Surface

In 1998, as part of its strategy to grow IBPs higher-margin food processing business, IBP management purchased a specialty hors doeuvres, kosher foods, and "airline food" business for $91 million, including assumed debt. IBP bought this business from its managers, including its President, Andrew Zahn. Within IBP, the business became known as DFG Foods, Inc. or "DFG." In late 1999, IBP purchased a competitor of DFG named Wilton Foods, and combined its operations with DFG. Zahn stayed on board after the purchase of DFG and continued to run the business, with a right to certain earn-out payments upon his departure that were tied to the units performance.

Although IBP hoped that DFG would become a useful part of its overall strategy to move into higher-margin businesses, as of the year 2000, DFG was an insignificant portion of IBPs overall business. Before the drastic adjustments that I will discuss later, DFG's 1999 sales had been around $75 million and its pre-tax earnings were $8.2 million. At these levels, DFG constituted less than 1% of IBPs sales and less than 2% of its pre-tax earnings. While IBP employed around 50,000 people at over 60 production facilities, DFG employed approximately 300 workers at its two facilities.

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On September 30, 2000 Andrew Zahn left DFG and took a sizable earn-out payment with him. On October 16, 2000, IBP issued a press release announcing earnings for the third quarter of FY 2000 of $83.9 million and year-to-date earnings of $203 million. Soon after this announcement, Dick Bond learned that there were problems with the integrity of DFGs books and records, and that it was possible that DFGs inventory value was overstated.

The evidence reveals that audit staff within the Foodbrands unit had harbored concerns about DFGs accounting procedures for some time. Dan Hughes, the director of internal audit at Foodbrands, had been questioning issues. His boss, Bill Brady, who was Foodbrands CFO, had not taken these concerns as seriously, and had resisted Hughess suggestion to inform IBP's audit committee about possible overstatements. Despite Tysons arguments to the contrary, there is no credible evidence that suggests that anyone in IBP top management were on notice about irregularities at DFG until mid-October 2000.

When IBP top management learned of the problems at DFG, a full inventory audit was ordered. The audit concluded that DFGs inventory was overvalued by $9 million. On November 7, 2000 IBP therefore announced that it would take a $9 million reduction over pre-tax earnings from the

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amounts previously reported for third quarter of FY 2000. These amounts were reported to the SEC in IBPs third quarter 10-Q. As of that time, Peterson and Bond were led to believe that the $9 million overstatement was the extent of the problem at DFG, although efforts to get control of DFG's financials continued.

The Auction For IBP Begins

The rumors about IBPs possible sale had not gone unnoticed among meat industry leaders. Two industry participants had toyed with the idea of making a play for IBP for years.

One was Smithfield Foods, the nations number one pork processing firm. When combined with IBP, Smithfield would be the number one producer of beef and pork products. The strength of the Smithfield-IBP combination was also its weakness. Because of IBP's own strength in pork, anti-trust and political concerns were bound to be raised about a merger. Nonetheless, those concerns did not impede Smithfield from making an unsolicited bid for IBP on November 12, 2000. The Smithfield bid offered $25 in Smithfield stock for each share of IBP stock. This was not the best of news for IBP management, whose relationship with Smithfield management was not warm.

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Meanwhile, Tyson Foods had been pondering a deal with IBP for several years. Bob Peterson and Tyson founder and controlling stockholder, Don Tyson, were old industry friends with great respect for one another. In the preceding year or so, Peterson had bantered with Don Tyson about the idea of putting Tyson and IBP together. This would create a company that was number one in beef and chicken, number two in pork, and that would have a diverse processed food business. Put mildly, Petersons ardor for a combination with Tyson was much stronger than for a deal with Smithfield.

When Peterson spoke with him earlier, Don Tyson saw the potential of the combination, but had recently stepped aside as CEO to make way for a new management team, destined to be led by his son John Tyson. Don Tyson felt that the new team needed to settle in before undertaking such a big deal.

By November 2000, the new Tyson team had been putatively in charge for some time, and was led by John Tyson, the companys CEO. As a part of its active consideration of corporate strategy, Tyson management periodically ran numbers on the feasibility of a merger with IBP. By mid-November, Tyson was seriously considering making a play for IBP. Shortly before Thanksgiving, John Tyson received a call from George Gillett, a major IBP stockholder who was a participant in the Rawhide group. Gillett

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called to encourage Tyson to bid for IBP. By the time Gillett got to John Tyson, John Tyson was already quite receptive.

Soon after the call with Gillett, John Tyson called Dick Bond to set up a meeting to discuss a possible combination. The meeting was arranged for November 24, 2000 at an airport in Tampa due to the various Thanksgiving itineraries of the expected participants. The primary participants were to be Peterson and Bond for IBP, and Don and John Tyson for Tyson.

The November 24 Meeting

The November 24 meeting was a lovefest. Tyson came ready to buy, and IBP came ready to be bought. The meeting was dominated by the two elder statesmen, Peterson and Don Tyson. Each was excited about the possibility of combining the companies, under the day-to-day leadership of John Tyson and Dick Bond. Don Tyson had even been dreaming about the companies combined balanced sheets at bedtime.

The two discussed the combination in general, big picture terms with great enthusiasm. Peterson told the two Tysons that the Rawhide Projections would soon be published. He expressed confidence that performance of the kind indicated in the Projections could be achieved by IBP and that his own internal operating plans for IBP were more ambitious. But at no time did Peterson promise that IBP could be guaranteed to perform

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as the Projections predicted. Indeed, Peterson discussed many of the risk factors that affected IBP and that would naturally lead a reasonable listener to conclude that future results could not be projected with certainty. These risk factors included the cattle cycle, which Peterson explained was likely to be on the downside in the ensuing years.

The testimony suggests that the conversation was largely focused on the future and the synergistic benefits of the combination, and not as much on year 2000. While I have little doubt that Peterson expressed confidence in his company, I also conclude that he did not promise Tyson that IBP's FY 2000 results would be exactly as set forth in the Rawhide Projections. I do think Peterson felt that IBP would have a good year and projected that confidence. That is, I conclude that his subjective belief was fully in accord with the views he expressed to the Tysons.

I also conclude that Peterson felt that he was having a big picture conversation with savvy businessmen, who would be careful to absorb his larger thoughts against a backdrop informed by careful reading and examination of all the information usually considered by a corporation considering a mega-transaction. In this regard, I specifically conclude that a reasonable participant in the meeting would have assumed that the statements of all participants were general and in keeping with the informal

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and preliminary nature of the meeting. In talking about the Rawhide Projections that were to be released soon., the IBP participants would have naturally assumed that the Tysons would read them carefully and the information that qualified them. This assumption that Tyson Foods was proceeding cautiously and not heedlessly is borne out by record evidence that shows that Tyson was running its own assumptions about a combination, with downside cases.

As a result, I conclude that John and Don Tyson did not form a belief at the November 24 meeting that the Rawhide Projections were in the bank and would be met with ease. Instead, they took away the view that Peterson and Bond believed that IBP would meet those Projections, but that there were no guarantees of that and that there were known risks that could compromise IBP's ability to deliver.

At a later point in the meeting, enthusiasm for the deal had run so high that the participants called in Tyson General Counsel Les Baledge, who had flown down with John Tyson, to discuss generally how the parties would proceed if Tyson made a bid.⁷  By the end of the meeting, the Tysons were

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enthusiastic. Don Tyson ended the meeting by saying that the companies ought to be put together as quickly as possible.

The Rawhide Are Published

On November 28, 2000, the preliminary proxy statement for the Rawhide deal was filed with the SEC. The preliminary statement included a description of the Rawhide Projections. The statement included the Projections "solely because of the disclosures [of them] that were made to J.P. Morgan" during the negotiation process.⁸ The preliminary proxy statement included a large amount of highlighted language that was intended to signal the caution with which those Projections should be used. A careful reader of the preliminary proxy would have noted, among other things, that: (i) the Projections had been prepared in August 2000; (ii) that the Projections had not been updated; (iii) that IBP Management does not ordinarily make such Projections; (iv) that the Projections should be read in light of IBP's most recent financial statements; (v) that there were a large number of risks that could affect whether the Projections would be met, particularly supply cycles in the livestock markets; and (vi) that the Projections were not guarantees of particular results.

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By November 28, 2000, IBP had already issued its third quarter 10-Q.  The preliminary proxy statement expressly informed readers that the Rawhide Projections which had been made as of August 2000 and had not been updated should be read in light of the third quarter 10-Q. The third quarter 10-Q contained information that suggested that IBP would have difficulty meeting the $542 million in EBIT predicted for the year 2000. By the end of the third quarter, IBP's total reported EBIT was $340 million, a result that trailed third quarter results for FY 1999 by $67 million.⁹  Whereas the Rawhide Projections had assumed that Foodbrands would deliver EBIT of $125 million for full year 2000, Foodbrands had only delivered around $50 million as of the end of third quarter 2000 on a normalized basis." It thus needed to generate more EBIT in the fourth quarter than the whole of the preceding year to meet the Rawhide Projections¹⁰ estimate.

Tyson Makes Its Opening Bid

In early December, the Tyson board of directors met to consider making a bid for IBP. John Tysons vision for the deal was fundamental: he wanted to dominate the meat case of Americas supermarkets and be the "premier protein center-of-the-plate provider" in the world.¹¹

Tyson/IBP

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would be number one in beef and chicken, and number two in pork. It would therefore be able to provide supermarkets with nearly all the meat they needed.

Not only that, John Tyson saw the potential to bring Tyson Foods own experience and unique expertise to bear outside of the poultry realm. As all parties agree, Tyson was an innovator in the meat industry, which had been the leader in demonstrating that a meat processor could produce value-added meat products of a ready-to-eat and ready-to-heat nature. In the past, meat processors sold large portions of meat to supermarkets and other processors, who butchered them and cooked them into higher priced serving sizes. Tyson began to do much of that work itself, thus preserving more of the profit for itself.

IBP was acknowledged to have a great fresh beefs business with an excellent, long-term track record. While it was beginning to embark on value-added strategies in the beef and pork industry, IBP was by all accounts not as far along in that corporate strategy and could most benefit from Tysons expertise in that particular area. John Tyson saw the potential for Tysons expertise to help IBP do in beef and pork what Tyson had done in poultry. His vision of the companies, however, had little to do with DFG

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specifically, a small subpart of Foodbrands that he knew little, if anything, about.

Tysons board supported managements recommendation to make a bid. On December 4, 2000, Tyson proposed to acquire IBP in a two-step transaction valued at $26 (half cash, half stock) per share. Tyson trumpeted the fact that its offer was preferable to Smithfields, in no small measure because Tyson did not face the same degree of anti-trust complications that Smithfield did and could thus deliver on its offer more quickly. To emphasize this point, Tyson said that its offer was "subject to completion of a quick, confirmatory due diligence review and negotiation of a definitive merger agreement."¹²

To that end, Tyson sent IBP an executed "Confidentiality Agreement," modeled on one signed by Smithfield, which would permit it to have access to non-public, due diligence information about IBP. That Agreement contains a broad definition of "Evaluation Material" that states:

For purposes of this Agreement, Evaluation Material shall mean all information, data, reports, analyses, compilations, studies, interpretations, projections, forecasts, records, and other materials (whether prepared by the Company, its agent or advisors or otherwise), regardless of the form of communication, that contain or otherwise reflect information concerning the Company that we or our Representatives may be provided by or on behalf of the Company or

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its agents or advisors in the course of our evaluation of a possible Transaction¹³.

The agreement carves out from the definition the following:

This Agreement shall be inoperative as to those particular portions of the Evaluation Material that (i) become available to the public other than as a result of a disclosure by us or any of our Representatives, (ii) were available to us on a non-confidential basis prior to the disclosure of such Evaluation Material to us pursuant to this Agreement, or (iii) becomes available to us or our Representatives on a non-confidential basis from a source other than the Company or its agents or advisors provided that the source of such information was not known by us to be contractually prohibited from making such disclosure to us or such Representative.¹⁴

As plainly written, the Confidentiality Agreement thus defines Evaluation Material to include essentially all non-public information in IBP's possession, regardless of whether the companys employees or agents prepared it. The terms of the Confidentiality Agreement also emphasize to an objective reader that the merger negotiation process would not be one during which Tyson could reasonably rely on oral assurances. Instead, if Tyson wished to protect itself, it would have to ensure that any oral promises were converted into contractual representations and warranties. The Confidentiality Agreement does so by providing:

We understand and agree that none of the Company, its advisors or any of their affiliates, agents, advisors or representatives (i) have made or make any representation or warranty, expressed or implied,

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as to the accuracy or completeness of the Evaluation Material or (ii) shall have any liability whatsoever to us or our Representatives relating to or resulting from the use of the Evaluation Material or any errors therein or omissions therefrom, except in the case of (i) and (ii), to the extent provided in any definitive agreement relating to a Transaction."¹⁵

The Due Diligence Process Begins

Tyson did not enter into the due diligence process alone. It retained Millbank, Tweed, Hadley & McCoy as its primary legal advisor, Merrill Lynch & Co. as its primary financial advisor, and Ernst & Young as its accountants.

The bidding process was being run by IBP's special committee. As members of the Rawhide group, Peterson, Bond and their subordinates were considered "interested" participants. Thus, while IBP management played a key informational role, the special committee had the final say.

On December 5 and 6, 2000, Tysons due diligence team reviewed information in the data room at Wachtell, Lipton. Tyson soon learned that the data room did not contain certain information about Foodbrands and the reason why that was so: IBP was reluctant to share competitively sensitive information with Smithfield. The special committees approach to this sales process was to treat the bidders with parity. As a result, Tyson was told that

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any information it wanted that was not in the data room could be provided, but that if Tyson received that information, so would Smithfield.

As a result of its due diligence, Tyson flagged certain items including:

• Possible asset impairments at DFG and certain other Foodbrands companies?¹⁶
• Discrepancies in the way that IBP reported its business segments.¹⁷
• Concerns regarding whether the CFBA acquisition qualified as a pooling.¹⁸
• IBPs policy of recognizing revenue upon invoicing, which was going to have to change on a going-forward basis because of new SEC guidance.¹⁹
• IBPs possible over-confidence about the outcome of certain environmental cases.²⁰
• IBPs decision to treat its stock option plan as involving the issuance of "fixed" rather "variable" options, and whether the accounting treatment for the plan, which was disclosed in the companys financial statements, was proper.²¹

IBP And Tyson Hold A December 8, 2000 Due Diligence Meeting

On December 8, 2000, due diligence teams from Tyson and IBP met in Sioux City, Iowa. The meeting was attended by the top managers from

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each side. Tysons team included its CEO John Tyson, its CFO Steve Hankins its Senior Finance Vice President Dennis Leatherby, and the in-house lawyer who was its due diligence point person, Read Hudson. Tyson was also represented by its outside financial and legal advisors. The IBP team included Peterson, Bond, Shipley, and Hagen as well as its outside financial and legal advisors.

Tyson came to the meeting expecting the now de rigeur Power-Point presentation. IBP came expecting to answer Tysons questions. As a result, the meeting became a question and answer session that covered IBP's business, segment by segment.

At least two important issues were discussed at the meeting. I will start with the DFG issue. Going into the December 8, 2000 meeting, the chairwoman of the IBP special committee, Joann Smith, specifically told John Tyson to ask about DFG at the meeting.

According to IBP witnesses, the DFG situation had gotten more serious by December 8.  IBP's top management was concerned that the accounting problems at DFG were deeper than they had recognized and that additional charges to earnings might be necessary. The IBP employee-witnesses all remember Peterson saying that the DFG problem had gotten worse by at least $20 million. Peterson himself remembers speaking in

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angry and vehement terms about Andy Zahn, labeling him as a "thief in the hen house," and the progeny of a female dog who should be hanged on main street- in front of a crowd." He also recalls saying that DFG was a "black hole."²² His colleagues at IBP have far less specific recollections, but do recall Peterson being quite upset.

The Tyson witnesses have a different recollection. They recall being told that DFG was a $9 million problem. Leatherbys notes of the meeting note that there had been a "$9 mm writedown here (guy fired) fudged earnout," that DFG was "not doing well," but that IBP "believe[d] in bus"²³  Hankinss notes about DFG tersely state: "DFG - At bottom of problem."²⁴None of the Tyson witnesses heard Peterson describe Zahn - at that meeting - in such unforgettable terms. They do admit, however, that Peterson appeared agitated and upset by the issue, that the problem was attributed to fraud by Zahn, that Zahn had been the head of the business, that Zahn was now gone, and that IBP was looking into his activities.

Tyson CEO John Tyson testified at his deposition that he was told at the December 8, 2000 meeting that the problem had reached $20 million,

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which accords with the account of the IBP witnesses.²⁵ At trial, John Tyson recanted this testimony. And a chronology prepared in early 2001 by Leatherby indicates that the DFG problem was defined at $9 million on December 8, 2000, but that he was told by IBP in mid-December, 2000 that the DFG problem was "more like $30 mm."²⁶

I cannot conclude with any certainty exactly what was said at the December 8, 2000 meeting. I find it unlikely that Peterson spoke as vividly as he now recalls at that meeting; rather I believe that Peterson is recalling later comments he made to Tyson representatives. But the parties were then engaged in very intensive efforts on several fronts at once. The DFG discussion on December 8, 2000 then had little of the significance that it has now.

It is quite possible that all of the witnesses are testifying honestly, but that some have telescoped separate events together in a manner that generates chronological error. For reasons that will become clear, the question of whether Tyson was informed on December 8 that the problem was worse than $9 million is not critical. The undisputed facts show that Tyson was apprised of fraud by the highest level executive of DFG and that

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the business had serious problems. Likewise, it is undisputed that the IBP representatives believed that DFG was a viable business, notwithstanding the serious problems it faced because of Zahn, and that they were acting to address those problems so that DFG could be turned around.

The Discussion Of The Rawhide Protections

The Rawhide Projections were also discussed at the December 8 meeting. IBP management again indicated that the Projections were based on reasonable and attainable assumptions, and that they had confidence in the companys ability to meet those projections in future years. Again, however, these statements were made in a context that emphasized the inherent uncertainty of any prediction of future performance. Much of the meeting dealt with IBPs business, including the various risk factors that influence whether IBP will perform well. In particular, the Tyson representatives were told about the cattle cycle, and the adverse effect that severe weather conditions have on cattle supplies.²⁷ IBPs management never promised or guaranteed that the company would meet the Rawhide Projections. In fact, Peterson told Tyson that one of DLJ's biggest concerns

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during the LBO process was the difficulty of forecasting IBPs future earnings.²⁸

The participants seem to have placed little focus on FY 2000. IBPs representatives never clearly indicated that the company would not meet the Rawhide target for the year. For their part, the Tyson participants appear to have been oblivious to the obvious warnings in the IBP third quarter 10-Q that IBP was well behind the run-rate needed to meet the Projections, particularly as to Foodbrands. Therefore, the Tyson and IBP representatives did not get "granular" - as the current lexicon goes - regarding IBPs 2000 performance-to-date. Indeed, at no time in December did Tyson ever ask IBP for updated profit and loss information for the year.

Tyson Asks For Additional Due Diligence Regarding Foodbrands

After the December 8, 2000 meeting, Tyson quickly commenced its tender offer. As due diligence continued, Tyson requested access to additional accounting information involving Foodbrands. IBP management responded with this basic and consistent theme: "if you want to look at it, we have to show it to Smithfield, too. But if you want Smithfield to see it, you can have it."

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This line of reasoning was frustrating to certain members of Tysons due diligence team. Nonetheless, Tyson was never denied access to documents, it was simply told to make a tactical decision. Because Tyson wanted to buy IBP and wanted to compete with Smithfield after doing so, Tyson did not wish Smithfield to see the information. Nor did IBP management, who preferred that Tyson come out on top in the bidding.

Tyson also never chose to narrow its due diligence requests to deal only with the fraud at DFG. It did so even though its own accountants were concerned about the issue and whether IBP had really gotten to the bottom of the problem.²⁹ While Tyson says it did not dig deeper because IBP management told it there was nothing bad at Foodbrands and Tyson relied upon those assurances, I do not find that testimony credible. While IBP management may have said that there were no problems at Foodbrands other than DFG, there is no credible evidence that any such statements were untrue when made, or, as we shall see, that Tyson placed any trust in those statements. Most important, IBP never denied Tyson access and had already told Tyson that there had been fraud at DFG. As a result, it is more probable that Tyson simply wanted to keep Smithfield from having knowledge about a business unit Tyson hoped to soon own. What is certain is that Tyson

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never demanded access to additional due diligence as a condition to going forward with a merger.

The Problems At DFG Grow Deeper

During this same period, IBP management was wrestling with the DFG situation. On December 11, 2000, Foodbrands CFO Brady had sent a memorandum to Foodbrands President Randy Devening. The memorandum signaled that additional write-offs would be necessary, and that DFG would suffer serious losses for the year in proportion to the size of its business.

The memorandum concluded by stating:

[I]t is clear that the business as it is clearly configured is not economically viable. We need to move rapidly and decisively to eliminate costs, improve sales realization and stem losses. DFG's management is in the process of preparing a detailed plan to turn the business around.³⁰

Soon thereafter, IBP deepened its examination of DFG by assigning a team from Price Waterhouse Coopers ("PWC") to do a full investigation. Bradys memo was never turned over to Tyson (or to Smithfield) in due diligence. Petersons trial testimony made clear that he had little regard for Bradys views of the matter, an attitude that is explicable given that Brady had stifled Hughes earlier efforts to explore the DFG issues more deeply and to apprise IBP's audit committee about his concerns.

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According to Tyson, IBPs failure to turn over the Brady memorandum was inconsistent with Hagen's representation to Hudson that she had turned over all audit reports for the "company" to Tyson. According to Hagen, she interpreted this as requesting all audit reports for IBP (i.e., the "company") itself, not all of its various business units, and responded accordingly.³¹ Hudson never asked Hagen for audit reports specific to DFG.

Shipley Prepares New FY 2000 Numbers For Use In An Auction

By mid to late December, the IBP special committee was preparing to conduct an auction between Tyson and Smithfield. By this point, the Rawhide group was out of the running and happy to receive a termination fee courtesy of the winning bidder.

J.P. Morgan asked Shipley to update his Rawhide Projections for use in this final bidding stage. On December 20, 2000 Shipley provided an update to J.P. Morgan. The update reduced IBPs expected EBIT for FY 2000 by $70 million - $542 to $472 million.³²

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On December 2 1, J.P. Morgan sent Tyson and Smithfield bid instructions which called for them to submit best and final bids, along with proposed merger contracts, by 5:00 p.m. on December 29, 2000.  The instructions informed the bidders that the special committee was free to change the rules of the process and that no agreement would be binding until reduced to a signed contract.

Tyson Receives Comment Letters From The SEC And Does Not Share Them With IBP

During this period, Tysons lawyers at Millbank, Tweed had been in communication with the SEC about its tender offer. The communications addressed, among other things, whether Tyson had to exercise good faith in determining whether a condition to the tender offer closing had failed.

Millbank, Tweed did not send the SEC correspondence to IBP.

Tyson Raises Its Bid After Learning That IBP's FY 2000 Earnings Would Be Lower Than The Rawhide Projections Had Anticipated

In the middle of the day on December 28, 2000, Tyson received Shipleys updated numbers from J.P. Morgan, which showed a $70 million decrease in FY 2000 IBP earnings. After learning of that reduction, Tyson raised its tender offer bid $1.00 a share to $27.00 per share in cash.

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Tyson Is Informed Of Additional Problems At DFG

On December 29, 2000, IBP and Tyson representatives held two due diligence calls. In the first, Peterson and IBP's controller, Craig Hart, spoke with Tyson CFO Hankins and General Counsel Baledge. Peterson told Hanks and Baledge that the DFG charges to earnings had grown to $30 to $32 million, inclusive of the original $9 million charge and a $3 million charge to a reserve. Because he was not a numbers man, Peterson also told them that his CFO Shipley would go over all the numbers with them later in the morning.

On the second call, Shipley addressed the DFG issue, as well as the larger issue of reconciling his December 20 projection for FY 2000 with the Rawhide Projections. As to DFG, Shipley indicated that their best estimate was that the problem had grown to $30 to $35 million, and that there could be more charges to come.³³Shipley told Tyson that PWC and IBP were fairly far along in their work, but that they had not yet finished working on the accounting issues at DFG. Shipley indicated that DFG would not be contributing at all to earnings in FY 2000.

Tyson representatives questioned the size of these charges in relation to the size of DFG and the fact that IBP had paid less than $100 million to.

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buy the business. They asked how much goodwill IBP carried on its books for DFG because the amount of the charges seemed very large for a business of DFGs size. Shipley told Tyson that IBP had not yet finished accounting for the problems and that examining the issue of goodwill was necessary to complete that process.³⁴ He also told Tyson that IBP had not figured out yet how it would account for the DFG issues, and that the problems had arisen from past conduct that took place for over a year.³⁵

During the call, Shipley also reconciled his revised FY 2000 estimate with the Rawhide Projections. He informed Tyson that the beef business was off by around $20 million because of tighter margins in the fourth quarter of 2000. This $20 million decrease was offset almost exactly by improved performance in the logistics sectors. As a result, the entirety of the discrepancy related to Foodbrands. Much of that came from the charges from DFG and DFG's failure to reach $10 million in EBIT. The rest came from under-performance in the rest of Foodbrands. Shipleys recitation of IBP's likely FY 2000 performance was reasonable, given the information he

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knew and the fact that he told Tyson that the DFG accounting was not yet concluded.³⁶

Shipley also discussed the Rawhide Projections for future years, particularly as to Foodbrands. Shipley indicated that he had not changed them, and that the numbers were attainable. He explained certain strategies IBP expected to implement that would help reach that number. Shipley did not lead Tyson to believe that meeting the Projections would be easy or a sure thing, but that IBP had the capability to do so. As to DFG, Shipley indicated that it would not deliver EBIT of $10 million in FY 2001, but could perhaps make $2 to $5 million.³⁷

Tyson's Lack Of Faith In IBP's Management

By this point, Tysons representatives harbored more than a healthy skepticism regarding IBPs representations. The evidence reveals, for example that Tyson had "BIG QUESTIONS" about Foodbrands ability to meet its projected performance for FY 2001.³⁸ Hankins scribbled down a

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note that said "How can $80 m sales company hit you for $30 + million".³⁹ Tysons investment banker doubted that DFG had ever made a real profit.⁴⁰

Tyson also placed little faith in Shipley. Hankins did not believe that Shipley had addressed the financial issues between the companies in the manner expected of a public company CFO. Hankins knew that he, rather than Shipley, was likely to be the CFO of the combined companies when all was said and done.

By their own admission, Tysons representatives had had "red flags" waved at them.⁴¹ They found it "alarming" that there was such a sharp drop-off between IBP's expected FY 2000 performance and the Rawhide Projections, and were angry that the likely shortfall had not been highlighted at the December 8 due diligence meeting.⁴²

Tyson CEO John Tyson thought he had been "misled or lied to."⁴³ By December 29, John Tysons level of confidence in Shipley was simple, he had "none."⁴⁴ He had been told by Bond that Shipley was likely to be replaced as CFO of IBP.  John Tyson believed that Foodbrands was

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"broken."⁴⁵ In sum, John Tyson did not trust IBP management going into the final stages of the bidding process.

Tyson Proceeds To Raise Its Bid In The Face of Waving Red Flags

In keeping with its skepticism about IBP's assurances, Tyson was receiving advice from its investment bankers that allowed it to examine whether an acquisition of IBP would make sense if Foodbrands performed at much lower levels than were projected in the Rawhide Projections. For example, Merrill Lynch ran a downside case in which Foodbrands EBIT would be only $85 million FY 2001 and 2002, and stay at a flat $95 million in FY 2003-2005.⁴⁶ Merrill Lynch also ran downside cases for IBP's performance as a whole that used assumptions more pessimistic than the Rawhide Projections.

During the evening of December 29, Smithfield put in an all stock bid it valued at $30 per share. On or about that same date, a member of Tyson management and Ernst & Young discussed the possibility that the DFG problem could require IBP to restate its previously reported financials and to accept an impairment charge.⁴⁷

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Tyson Wins The Auction - Twice

On December 30, 2000, Smithfield advised the special committee that $30 was its best and final offer. Special committee chair Smith called John Tyson and told him that if Tyson bid $28.50 in cash it would have a deal. John Tyson agreed and Smith said they had a deal. Later, the IBP special committee met to consider the Tyson and Smithfield bids. With the advice of J.P. Morgan, the special committee considered Tysons $28.50 cash and stock bid to exceed the value of Smithfields all stock $30 bid. The special committee decided to accept Tysons bid, subject to negotiation of a definitive merger agreement.

As a courtesy, the special committee and its counsel informed Smithfield that it had lost the auction. On December 31, Smithfield increased its all stock bid to $32.00. With deep chagrin, Smith went back to John Tyson and explained what had happened and the committees duty to consider the higher bid. John Tyson was justifiably angry, but understood the realities of the situation.

Tyson Foods went to the well again and drew out another $1.50 a share, increasing its bid to $30 per share. IBP agreed and this time the price stuck.

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The Merger Agreement Negotiations

While the auction was on, the lawyers for IBPs special committee had been negotiating possible merger agreements with Tyson and Smithfield. By December 30, the IBP lawyers were mostly focused on Tyson because it appeared they had prevailed in the auction.

The document that was used as a template for what became the final Merger Agreement was initially prepared by Millbank Tweed, whose team was led by Lawrence Lederman. Lederman used the Rawhide merger agreement as his starting point because he believed it was a good agreement for a buyer with strong representations and warranties on the part of the seller.

Late on December 30, IBP sent Tysons negotiators the disclosure schedules to the Merger Agreement, which had been drafted by IBPs General Counsel Hagen. These schedules included a Schedule 5.11 that expressly qualified Section 5.11 of the Merger Agreement, which reads as follows:

Section 5.11. No Undisclosed Material Liabilities. Except as set forth in Schedule 5.11 the Company 10-K or the Company 10-Q's there are no liabilities of the Company of any Subsidiary of any kind whatsoever, whether accrued, contingent, absolute, determined, determinable or otherwise, and there is no existing condition, situation or set of circumstances which could reasonably be expected to result in such a liability, other than:

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(a) liabilities disclosed or provided for in the Balance Sheet;

(b) liabilities incurred in the ordinary course of business consistent with past practice since the Balance Sheet Date or as otherwise specifically contemplated by this Agreement;

(c) liabilities under this agreement;

(d) other liabilities which individually or in the aggregate do not and could not reasonably be expected to have a Material Adverse Effect.

Schedule 5.11 itself states:

No Undisclosed Material Liabilities

Except as to those potential liabilities disclosed in Schedule 5.12, 5.13, 5.16 and 5.19, the Injunction against IBP in the Department of Labor Wage and Hour litigation (requiring compliance with the Wage and Hour laws), and any further liabilities (in addition to IBP s restatement of earnings in its 3rd Quarter 2000) associated with certain improper accounting practices at DFG Foods, a subsidiary of IBP, there are none.⁴⁸

On a later conference call between Tyson and IBP negotiators, Hagen told the Tyson participants that Schedule 5.11 was intended to cover the DFG issues discussed by Shipley in the December 29 conference call. The Tyson negotiators accepted the Schedule, based on prior discussions between Tyson in-house counsel Hudson and Tyson Finance Vice President Leatherby.

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Tysons lead outside lawyer, Lederman, did not participate in the call  in which Schedule 5.11 was accepted. It appears that neither he, Baledge or Hankins learned about the Schedule until well after the Merger Agreement was signed on January 1, 2001.

The Merger Agreement's Basic Terms And Structure

The Merger Agreement contemplated that:

• Tyson would amend its existing cash tender offer (the "Cash Offer") to increase the price to $30 per share.

• Tyson would couple the cash tender offer with an "Exchange Offer" in which it would offer $30 of Tyson stock (subject to a collar) for each share of IBP stock. This would permit IBP stockholders who wished to participate in the potential benefits of the Tyson/IBP combination to do so.

• The Cash Offer would close no later than February 28, 2001 unless the closing conditions set forth in Annex I of the Merger Agreement were not satisfied.

• 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 before May 15, 2001 unless the closing conditions set forth in Annex III of the Merger Agreement were not satisfied. In the cash election merger, IBP stockholders would be able to receive $30 in cash, $30 in Tyson stock (subject to a collar), or a combination of the two.

The Annexes to the Agreement contain certain language that is substantively identical regarding Tysons duty to close the transactions. That language provides:

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[E]xcept as affected by actions specifically permitted by this Agreement, the representations and warranties of the Company contained in this Agreement (x) that are qualified by materiality or Material Adverse Effect shall not be true at and as of the scheduled expiration of the Offer as if made at and as of such time (except in respect of representations and warranties made as of a specified date which shall not be true as of such specified date), and (y) that are not qualified by materiality or Material Adverse Effect shall not be true in all material respects at and as of the scheduled expiration date of the Offer as if made at and as of such time (except in respect of representations and warranties made as of a specific date which shall not be true in all material respects as of such specified date).⁴⁹

The previously described Section 5.11 is one of the representations and warranties referenced above. Primarily implicated in this case are the following representations and warranties:

Section 5.07. SEC Filings.

(a) The Company has delivered or made available to Parent (i) the Companys annual report on Form 10-K for the year ended December 25, 1999 (the "Companv 10-K), (ii) its quarterly report on Form 10-Q for its fiscal quarter ended September 23, 2000, its quarterly report on Form 10-Q for its fiscal quarter ended June 24, 2000 (as amended) and its quarterly report on Form 10-Q for its fiscal quarter ended March 25, 2000 (together, the "Company 10-Qs"), (iii) its proxy or information statements relating to meetings of, or actions taken without a meeting by, the stockholders of the Company held since January 1, 1998, and (iv) all of its other reports, statements, schedules and registration statements filed with the SEC since January 1, 1998

(b) As of its filing date, each such report or statement filed pursuant to the Exchange Act did not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading.

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(c) Each such registration statement, as amended or supplemented, if applicable, filed pursuant to the Securities Act of 1933, as amended (the "Securities Act"), as of the date such statement or amendment became effective did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading.

Section 5.08. Financial Statements. The audited consolidated financial statements of the Company included in the Company 10-K and unaudited consolidated financial statements of the Company included in the Company 10-Qseach fairly present, in all material respects, in conformity with generally accepted accounting principles applied on a consistent basis (except as may be indicated in the notes thereto), the consolidated financial position of the Company and its consolidated subsidiaries as of the dates thereof and their consolidated results of operations and changes in financial position for the periods then ended (subject to normal year-end adjustments in the case of any unaudited interim financial statements). For purposes of this Agreement, Balance Sheet" means the consolidated balance sheet of the Company as of December 25, 1999 set forth in the Company 10-K and "Balance Sheet Date" means December 25, 1999.

Section 5.09. Disclosure Documents.

(a) Each document required to be filed by the Company with the SEC in connection with the transactions contemplated by this Agreement (the "Company Disclosure Documents"), including, without limitation, (i) the Exchange Schedule 14D-9 (including information required by Rule 14f-1 under the Exchange Act), the Schedule 14D-9/A (including information required by Rule 14f-1 under the Exchange Act) and (iii) the proxy or information statement of the Company containing information required by Regulation 14A under the Exchange Act (the "Companv Proxy Statement"), if any, to be filed with the SEC in connection with the Offer or the Merger and any amendments or supplements thereto will, when filed, comply as to form in all material respects with the applicable requirements of the Exchange Act except that no representation or warranty is made hereby with respect to any information furnished to the Company by Parent in writing specifically for inclusion in the Company Disclosure Documents.

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(b) At the time the Schedule 14D-9/A the Exchange Schedule 14D-9 and the Company Proxy Statement or any amendment or supplement thereto is first mailed to stockholders of the Company, and, with respect to the Company Proxy Statement only, at the time such stockholders vote on adoption of this Agreement and at the Effective Time, the Schedule 14d-9/A the Exchange Schedule 14D-9 and the Company Proxy Statement, as supplemented or amended, if applicable, will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading. At the time of the filing of any Company Disclosure Document other than the Company Proxy Statement and at the time of any distribution thereof, such Company Disclosure Document will not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading. The representations and warranties contained in this Section 509(b)will not apply to statements or omissions included in the Company Disclosure Documents based upon information furnished to the Company in writing by Parent specifically for use therein.

(c) Neither the information with respect to the Company or any Subsidiary that the Company furnishes in writing to Parent specifically for use in the Parent Disclosure Documents (as defined in Section 6.09(a)) nor the information incorporated (sic) by reference from documents filed by the Company with the SEC will, at the time of the provision thereof to Parent or at the time of the filing thereof by the Company with the SEC, as the case may be, at the time of the meeting of the Companys stockholders, if any, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading.

Section 5.10. Absence of Certain Changes Except as set forth in Schedule 5.10 hereto, the Company 10-K or the Company 10-Qs, since the Balance Sheet Date, the Company and the Subsidiaries have conducted their business in the ordinary course consistent with past practice and there has not been:

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(a) any event, occurrence or development of a state of circumstances or facts which has had or reasonably could be expected to have a Material Adverse Effect . . . .⁵⁰

Sections 5.07-5.09 therefore warrant the material accuracy of IBP's 1999 10-K and its 10-Qs for the first three quarters of 2000 (the "Warranted Financials"). Viewed literally and in isolation, these representations can be read as providing Tyson with a right not to close if IBP had to restate the Warranted Financials on account of the earnings charges at DFG that clearly related to past conduct that occurred during the periods covered by the Warranted Financials. Meanwhile, §5.10 protected Tyson in the event IBP suffered a Material Adverse Effect, as defined in the Agreement.⁵¹

The Agreement also required Tyson to correct promptly any information contained in its SEC filings regarding its Cash Tender and Exchange Offs (the "Offer Documents") that had become false and misleading? Tyson was also required to provide IBP promptly with any correspondence between itself and the SEC regarding the Offer Documents.⁵² For its part, IBP agreed to correct promptly any information it had given to Tyson for inclusion in the Offer Documents.⁵³

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The December 29 SEC Comment Letter

On December 29, the SEC sent an e-mail to IBP special committee counsel Seth Kaplan at the firm of Wachtell, Lipton. The e-mail contained a fifteen-page letter from the SECs Division of Corporate Finance to IBP CEO Peterson commenting on the preliminary Rawhide Proxy as well as the Warranted Financials (the "Comment Letter").

At the time Kaplan received this e-mail, he was swamped with numerous pressing tasks. He quickly scanned the document on screen and concluded that it largely related to the by-then moribund Rawhide transaction. Kaplan had been expecting comments on the Rawhide proxy before years end. And in fact, the letters initial 42 comments were focused on the Rawhide preliminary proxy. What Kaplan failed to notice is that the latter half of the document contained 45 comments regarding the Warranted Financials, which had been incorporated by reference into the Rawhide proxy. Kaplan also failed to notice that the letter had been e-mailed only to him and not to Peterson.

Instead, Kaplan simply sent a copy of the Comment Letter on to his associate, Ante Vucic, to handle. He did not send a copy to Tyson, Smithfield, or to IBP.

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The Comment Letter addressed a number of items that Tyson had already identified in its due diligence process. For example, the Comment Letter:

• Asked IBP to identify how it had discovered the $9 million inventory problem at DFG and a synopsis of the events that caused the problem.

• Asked IBP to disclose its revenue recognition policies to comply with recent SEC accounting guidelines.

• Requested information regarding pooling of interest accounting for the CFBA acquisition;

• Asked IBP to revisit its reporting of its business segments, in view of certain inconsistencies in its prior approach.⁵⁴

In January, Kaplan learned that the SEC had not faxed a copy of the Comment Letter to Peterson. Instead, the SEC staffers responsible for the Comment Letter had mailed Petersons copy sometime after the New Years holiday, most likely January 3, 2001.  The Comment Letter arrived by mail at IBP on January 8, 2001, and IBP sent it to Tyson by facsimile on January 10, 2001.

IBP's General Counsel Hagen spoke with the SEC about why IBP had not received an earlier copy. She was led to believe that the SEC had received instructions from Wachtell, Lipton to fax to it and mail to IBP.

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Hagen blew her top. During the auction process, Hagen had found it difficult to be on the sidelines while the Wachtell, Lipton firm acted in the lead role. While Hagen understood that the Rawhide LBO made this the wiser course, tensions had arisen between her and Kaplan.

She unleashed her anger at Kaplan in a series of e-mails. Kaplan denied that he had instructed the SEC to fax to him and mail to IBP. I believe him. After she cooled off, so did Hagen.

In a letter to the IBP special committee, Tysons General Counsel Baledge also expressed his concern about receiving the letter twelve days after its mailing date. He pointed out that IBP had received this letter during the final negotiation and bidding round. He claimed that the SECs comments should have been disclosed and that "no exception was taken to IBPs representations relating to the issues raised in the SEC comment letter."⁵⁵

Baledge also claimed that the Comment Letter would cause Tyson delay in commencing its Exchange Offer, which it had been prepared to launch that very day. Because the Exchange Offer Documents incorporated IBP's financial statements, Tyson had to hold off until PWC resolved the

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issues the SEC raised. Baledge also complained that progress could have been made on the issues, had Tyson received the letter earlier.

Baledge closed by indicating that Tyson was "assessing the materiality and impact of the SECs comments and the SECs requirement that IBP revise its financial statements."⁵⁶

Tyson's Board and Shareholders Vote For The Merger Agreement

On January 12, 2001, Tysons board of directors met and ratified managements decision to enter into the Merger Agreement. Peterson and Bond attended as guests of Tyson. At that point, Tyson expected to invite both of them onto to its board, and for Bond to run the IBP unit of the combined entity.

At the board meeting, Baledge did not discuss the Comment Letter with the Tyson board.

The same day the Tyson shareholders meeting was held. The Merger Agreement was put to a vote of the Tyson stockholders. Baledge made the motion. He did not inform the shareholders of the Comment Letter. The Tyson stockholders approved the Merger Agreement and authorized management to consummate the transactions it contemplated?⁵⁷

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The fact that the Tyson board and stockholders were not told about the Comment Letter is made more understandable by the fact that Tysons accountants believed that the Comment Letter did not contain "any comment that [Earnst & Young] thought was significant to Tyson as an acquiror that Ernst & Young had missed prior to January 1, 2001."⁵⁸

John Tyson Trumpets The Deals Benefits

During January, Tyson and its CEO John Tyson told the world how, wonderful the Tyson/IBP combination was going to be. "By combining the

number one poultry company with the leader in beef and pork we are creating a unique company. . .⁵⁹ John Tyson emphasized that Tyson had seized a unique "point in time" opportunity to put together two companies who were industry leaders and thus become the worlds "premier protein provider."⁶⁰ Together, the companies would dominate the meat cases of Americas supermarkets.

John Tysons public statements also acknowledged that there were no sure things in life. Thus, he indicated that Tyson was purchasing IBP "fully aware of the cyclical factors that affect commodity meat products."⁶¹ John

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Tyson also evinced his acknowledgement that IBP was not as far along in the processed foods side of their business as Tyson Foods was and that Tyson Foods expertise would help IBP achieve success in this area:

When you look at IBP, they look like Tyson Foods twenty years ago. They have put in place the foundation, the assets, but most of all, the people to do to the beef and pork industry what our great company has done in the last fifteen or twenty years to the poultry industry. When you see that, you understand why we get excited.

In our experiences [sic] in branding case ready packaging and fully cooked value-added products mirrors the path that they have created for themselves. It is our belief that our experience and market access in both foodservice and retail can help them achieve their goals quicker and more efficiently.⁶²

None of Tysons public statements or internal documents specifically reference DFG as important to the fulfillment of John Tysons vision for the combined companies.

IBP Addresses Its Issues With The SEC While Tyson Positions Itself To Negotiate A Lower Price

On January 16, 2001, Shipley informed Hankins that the DFG earnings charges might reach $50 million, including the $9 million already taken. Shipley indicated that some of the charges related to 1999, and that it was unclear if a restatement to 1999 earnings would be necessary. He also told Hankins that the impairment study was underway but not complete.

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Hankins concluded "without a doubt" from what he was told that IBP would have to restate the Warranted Financials.⁶³

The next day Tyson extended its Cash Offer. The only reason it gave was that the waiting period under the Hart-Scott-Rodino anti-trust law had not expired. On January 19, 2001, IBP met with Tysons financial and accounting team and discussed the DFG issues in more depth. No one at Tyson told IBP that IBP would breach the Merger Agreement if it restated the Warranted Financials.

On January 24, 2001, Baledge wrote the IBP special committee and told it that Tyson would issue a press release the following day extending its Cash Offer again. His letter again reiterated his view that Tyson should have received the Comment Letter before the Merger Agreement was signed. Baledge said that Tyson would publicly indicate that the reason for extending the Cash Offer would be that the Cash Offer Documents contained information prepared in reliance on the Warranted Financials. As a result, Tyson viewed it as prudent to delay closing until IBP satisfied the SEC. For the same reason, Tyson was not going to commence its Exchange Offer until the SEC issues were settled. Once that was done, Tyson would "assess the

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impact and materiality of any changes to your financial statements and business."⁶⁴

In reaction to Tysons January 25 disclosure, IBP issued a letter from Peterson to Tyson. The letter disclosed that the DFG charges to earnings would be $47 million, inclusive of the $9 million, and that the charge related to prior periods. It said that IBP was still considering whether a restatement was necessary and the extent of any asset impairment at DFG. Petersons letter also stated that IBP had sent a letter to the SEC that day with IBP's response to the Comment Letter and that IBP was scheduled to meet with the SEC on January 29, 2001 to discuss its concerns.

At the January 29, 2001 meeting, IBP hoped to get some helpful guidance from the SEC regarding how it should account for the DFG issue.⁶⁵ This expectation was disabused at the meeting. Instead, the SEC told IBP that it had to figure out how to account for DFG and that it should do so

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promptly. Members of the SECs Division of Enforcement also attended the meeting, to the surprise and chagrin of IBP.

On February 5, 2001, IBP delivered to the SEC a large submission of materials to address issues raised by the SEC. In those materials, IBP stated that the DFG adjustments were "material to previously reported quarterly 2000 data as well as to 1999."⁶⁶ Hagen promptly sent this submission to Baledge. Baledge never informed her that if IBP restated the Warranted Financials, it would automatically breach the Merger Agreement. The next day, Tyson issued a press release extending the Cash Offer yet again for the same reasons expressed in its January 25, 2001 extension.

On February 7, 2001, the SEC wrote to IBP and indicated that it would "not decline to accelerate the effectiveness of a registration statement" for the Exchange Offer so long as IBP had fully and fairly restated the Warranted Financials to address the DFG issue and the registration statement adequately described the restatements!⁶⁷ Hagen discussed this letter with Baledge.

By mid-February, the SECs correspondence with IBP took on a quite brusque and directive tone. The SECs message was that IBP ought to get

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on with the business of filing restated financial statements!⁶⁸ The SEC had identified several technical issues in the Warranted Financials that were not reported in accordance with the SECs view of GAAP. In view of the serious DFG issues, the SEC wanted all the issues addressed in very prompt restatements to the Warranted Financials.

During this period, Hagen and Baledge talked about the need for a restatement. Baledge expressed Tysons preference that there be only one restatement rather than a series of them. He did not tell Hagen that a restatement by IBP would breach the Merger Agreement?⁶⁹ Baledge did not do so because he believed that Tyson would have to determine whether any restatement was material to Tyson.⁷⁰

On February 22, 2001, IBP publicly announced that it would have to restate the Warranted Financials to take an additional DFG charge of $32.9 million. DFG took an additional $12 million DFG charge for the fourth quarter of FY 2000. IBP also indicated that it would be taking an impairment charge at DFG of up to $ 108 million. And the company announced that it would be restating the Warranted Financials to account for

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the companys stock option plan as a "variable" rather than a "fixed" plan. This issue had arisen during the back-and-forth between the SEC and IBP in 2001, and was not mentioned in the December 29 Comment Letter. Tyson had flagged this issue much earlier in due diligence, and IBP's previous accounting decision was openly stated in its 1999 10-K.

As the February 28 deadline for the Cash Offer loomed, Hagen approached Tyson about extending the deadline. Tyson never responded. On February 28, Tyson instead terminated the Cash Offer. John Tyson was quoting as stating: "Unfortunately, it will be impossible to complete the cash tender offer by the 28th.  IBP continues to work with the SEC to resolve their accounting issues. After that work is complete, we will determine what effect these matters will have on our deal."⁷¹ As of that date, Tyson had not made a determination that IBP had breached a contractual warranty, as Baledge admitted at trial.⁷²

IBP responded publicly to the termination of the Cash Offer by indicating that Tysons decision was in "complete accordance" with the Merger Agreement.⁷³ Throughout this period, it had continued to note to the

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public the risk that IBP would not resolve the SEC issues to Tysons satisfaction.

Tyson Gets Nervous And Wants To Reprice The Deal

During February, Tyson Foods became increasingly nervous about the IBP deal and began to stall for time. While Tyson still believed that the deal made strategic sense, it was keen on finding a way to consummate the deal at a lower price. The negotiations with the SEC were a pressure point that Tyson could use for that purpose and it did.

Tysons anxiety was heightened by problems it and IBP were experiencing in the first part of 2001. A severe winter had hurt both beef and chicken supplies, with chickens suffering more than cows.

Tysons first quarter 2001 ended on December 30, 2000.  During that period, Tyson earned $.12 a share, down from $.25 during the same period in its FY 2000. Tysons second quarter 2001 was shaping up even worse. Tysons performance was way down from previous levels. Eventually, Tyson would have to reduce its earnings estimate for this period, only to find out its reduction was not sufficient. Eventually, Tyson reported a loss of $6 million for the pertinent quarter, compared to a profit of $35.7 million for the prior years period.⁷⁴ It described the period as involving the "most

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difficult operating environment" Tyson had seen since 1981, and admitted that Tyson had suffered from the "on-going effect of the severe winter weather."⁷⁵

Meanwhile, IBP was experiencing similar problems. At the end of January, IBP had begun sending weekly profit & loss ("P & L") statements to Tyson. These showed very slow results. that appeared to leave IBP in a compromised position from which to meet the Rawhide Projection of $446 million in EBIT for 2001. Both the beef fresh meats and Foodbrands businesses were performing at below-par levels. When the quarter ended on March 3 1, 2001, IBP had earned only $.19 a share, meaning that it would have to produce $1.74 a share in earnings over the succeeding three quarters to meet the Rawhide Projection of $1.93 per share for FY 2001.

By mid-February, these factors led the Tyson and IBP factions to approach each other warily. IBP sensed that Tyson wanted to renegotiate. Hagen prepared for an even worse possibility: that Tyson would walk away and IBP would have to enforce the deal. Bond tried to deal with the problem by being responsive to John Tysons calls for help in reassuring his father, Don Tyson, that the deal still made sense.

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 On the Tyson side, its key managers began to slow down the merger implementation process to buy time for John and Don Tyson. While Tyson and IBP continued to do all the merger integration planning that precedes a large combination, Tyson was also bent on using its leverage to extract concessions from IBP. To the extent that Tyson Foods had wiggle room not to close the Cash Offer, Don and John Tyson wanted to use that to give them more time to see numbers from IBP and to assess the transaction in light of Tysons own strategic situation. Their subordinates did as instructed and stalled for time by not agreeing to extend the Cash Offer deadline, as IBP had offered.

By February, Don Tyson had brought in Leland Tollet and Buddy Wray to counsel with him on the transaction. Tollet and Wray were Don Tysons key executives when he was Tysons CEO and the three were known as the "old guard." Since Don Tyson controlled 90% of Tysons stock, his word was still the key one at Tyson, and he was worried.

On March 5, 2001, Dick Bond met with Don Tyson to help alleviate some of those worries. Don Tyson was quite concerned that IBP was not on course to meet its projected earnings for the year. Bond tried to convince him otherwise. As to DFG, Don Tyson said that if he were running IBP, he would blow that whole thing up and write the whole thing off and move

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on."⁷⁶ Don Tyson never mentioned the SEC Comment Letter issues during the entire meeting.

During a later phone conversation, Bond again talked with Don Tyson. Don Tyson raised fears about mad cow disease and hoof-and-mouth disease. Bond addressed these issues and Don Tysons continued concern about IBP's year-to-date performance. Don Tyson did not voice concerns about DFG or the SEC accounting matters. At the end of the conversation, Don Tyson said he was satisfied and was going fishing. Bond relayed this to John Tyson, who was pleased.⁷⁷

On March 7, 2001, John Tyson sent all the Tyson employees a memorandum stating that Tyson Foods was still committed to the transaction. But on March 13, 2001, he expressed concern to Bond about IBP's first quarter performance and wanted Bonds best estimates for the rest of the year. Bond sent him estimates that had a low estimate of $1.80 per share in earnings and a high side of $2.47, with a best estimate of $2.12. John Tysons advisor Hankins believed these estimates to be much too optimistic in view of IBP's slow start.

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IBP Filed Its Restated Financials And Tyson Continues Its To Put Pressure On IBP To Renegotiate

On March 13, 2001, IBP also formally filed its restatements to the Warranted Financials. The formal restatements were in line with the previous release regarding DFG, as was the $60.4 million DFG "Impairment Charge" took in its year 2000 10-K. None of the other issues covered had any impact on IBPs prospects. Tyson reacted in print in a March 14 press release that indicated that Tyson was pleased IBP had resolved most of its issues with the SEC. The press release also indicated that Tyson was continuing to look at IBPs business and noted its weak first quarter results. Behind the scenes, Tysons investor relations officer, Louis Gottsponer, was turning up the heat on IBP through comments to analysts.

In an internal e-mail, Gottsponer explained Tysons renegotiation strategy:

To document this point in the process. Weve billed this as the next significant event (were waiting until they file), so now people want to know what the new timeline looks like. . . .

To keep the pressure on their stock price. Based on the voice mails that have been left for me (those seven) the street views these restatements as insignificant. We know these accounting issues aren't the biggest reason to renegotiate (i.e. beef margins). Lets remind people of that (softly). To set the stage for other points that may help us to renegotiate.⁷⁸

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Sure enough, the next day analysts began reporting that IBPs earnings outlook would possibly lead to a renegotiation of the deal.⁷⁹

On March 15, 2001, Tyson in-house counsel Read Hudson sent a letter to Hagen at Baledges instruction. The letter reads:

Congratulations on getting your restated SEC filings behind you. I know they involved a lot of hard work on your part.

Now that all you have left to file is the 2000 10-K it seems that we should begin preparation of documentation, filings, etc. as we move forward with the cash election merger. . . .⁸⁰

Tyson Terminates And Sues IBP

By late March, Don Tyson did not support an acquisition of IBP at $30 per share. On March 26, 2001, Tyson and IBPs merger integration teams had a scheduled meeting. John Tyson used that occasion to raise the possibility of repricing the deal with Bond to $27 to $28 per share. Bond told John Tyson that he did not see how the DFG issue could warrant a reduction of more than $.50 or so. Although he did not tell this to John Tyson, Bond had already come to the pragmatic conclusion that IBP might have to reprice to $28.50 or so in order to get a deal done without a fight. The price discussion went no further.

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At the merger integration meeting, the companies⁸¹ consultant McKinsey & Co. reported that $250 million in synergies could be achieved in the Merger. John Tyson instructed the merger integration team to move full speed ahead? During the meeting, John Tyson had been called out a couple of times. When the meeting concluded, he pulled Bond aside and told Bond that his father, Don Tyson, was coming back to Arkansas. Don Tyson was still nervous about the deal and John Tyson needed Peterson and Bond to help "get him back in the boat."⁸²

On March 27, 2001. Merrill Lynch presented Tyson with a revised IBP valuation analysis, using pessimistic assumptions generated by Tyson CFO Hankins. The analysis concluded that $30.00 per share was still within the "fairness range," that the "transaction still makes tremendous strategic sense," and that "[e]ven at $30 per share, tremendous long-term value accrues to TSN."⁸³ But the document also contained analyses that Tyson could use to renegotiate a lower price.

On March 28, 2001, Don Tyson called a meeting of the "old guard" and Tysons current top management. The agendas first two items were the state of the economy in general, and the state of Tysons business. As of

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that day, Tysons own performance for the year was very disappointing and it had been forced to admit so publicly only days earlier. Only after discussing the first two items on the agenda did the participants discuss the IBP deal. Don Tyson expressed continued concerns about IBP's current year performance and about mad cow disease. When it came time to make the decision how to proceed, Don Tyson left to caucus with the old guard. The new guard was excluded, including John Tyson. Don Tyson returned to the meeting and announced that Tyson should find a way to withdraw. The problems at DFG apparently played no part in his decision, nor did the comments from the SEC.⁸⁴ Indeed, DFG was so unimportant that neither John nor Don Tyson knew about Schedule 5.11 of the Agreement until this litigation was underway.⁸⁵

After the old guard had decided that the Merger should not proceed, Tysons legal team swung into action. Late on March 29, 2001, Baledge sent a letter stating:

Tyson Foods . . . will issue a press release today announcing discontinuation of the transactions contemplated by the Agreement and Plan of Merger dated as of January 1, 2001 among IBP, inc. ("IBP") and Tyson (the "Merger Agreement"). We intend to include this letter with our press release.

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On December 29, 2000, the Friday before final competitive negotiations resulting in the Merger Agreement, your counsel received comments from the Securities and Exchange Commission ("SEC") raising important issues concerning IBP's financial statements and reports filed with the SEC. As you know, we learned of the undisclosed SEC comments on January 10, 2001. Ultimately, IBP restated its financials and filings to address the SECs issues and correct earlier misstatements. Unfortunately, we relied on that misleading information in determining to enter into the Merger Agreement. In addition, the delays and restatements resulting from these matters have created numerous breaches by IBP of representations, warranties, covenants and agreements contained in the Merger Agreement which cannot be cured.

Consequently, whether intended or not, we believe Tyson Foods, Inc. was inappropriately induced to enter into the Merger Agreement. Further, we believe IBP cannot perform under the Merger Agreement. Under these facts, Tyson has a right to rescind or terminate the Merger Agreement and to receive compensation from IBP. We have commenced legal action in Arkansas seeking such relief. We hope to resolve these matters outside litigation in an expeditious and businesslike manner. However, our duties dictate that we preserve Tysons rights and protect the interests of our shareholders.

If our belief is proven wrong and the Merger Agreement is not rescinded, this letter will serve as Tysons notice, pursuant to sections 11.01(f) and 12.01 of the Merger Agreement, of termination.⁸⁶

Notably, the letter does not indicate that IBP had suffered a Material Adverse Effect as a result of its first-quarter performance.

But as indicated in the letter, Tyson had sued IBP in Arkansas that evening, shortly before the close of the business day. The next day IBP filed this suit to enforce the Merger Agreement.

II. The Basic Contentions Of The Parties

The parties have each made numerous arguments that bear on the central question of whether Tyson properly terminated the Merger Agreement, which is understandable in view of the high stakes. The plethora of theories and nuanced arguments is somewhat daunting and difficult to summarize. But the fundamental contentions are as follows.

IBP argues that Tyson had no valid reason to terminate the contract on March 29, 2001 and that the Merger Agreement should be specifically enforced. In support of that position, IBP argues that it has not breached any of the contractual representations and warranties. In addition, IBP contends that Tyson improperly terminated the Cash Offer on February 28, 2001 because all closing conditions were met as of that date. In this regard, IBP says that Tyson did not need IBP to formally file its Restated Financials in order for Tyson to proceed with the Cash Offer. As a result, IBP says that §2.01(e) and (h) of the Agreement do not provide Tyson with a contractual safe harbor.

Tyson argues that its decision to terminate was proper for several reasons. First, Tyson contends that IBP breached its contractual representations regarding the Warranted Financials, as evidenced by the Restatements. Second, Tyson contends that the DFG Impairment Charge as

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well as IBP's disappointing first quarter 2001 performance are evidence of a Material Adverse Effect, which gave Tyson the right to terminate.

Finally, Tyson argues that the Merger Agreement should be rescinded because that Agreement (and related contracts) were fraudulently induced. In this respect, Tyson contends that IBP's failure to disclose the Comment Letter and certain DFG-related documents before January 1, 2001 constitutes ground for rescission. Tyson says that the Agreement should also be rescinded because IBP management made oral statements regarding the Rawhide Projections that they knew to be false, on which Tyson reasonably relied to its detriment. For identical reasons, Tyson says that a letter agreement it signed in connection with the Merger Agreement should also be rescinded, thus entitling Tyson to a refund of a $66 million termination fee it paid to the Rawhide group on behalf of IBP.

The parties have chosen to accompany their basic contentions with a variety of subsidiary theories, all of which derive from the same factual issues.

Before turning to the resolution of the parties various arguments, it is necessary to pause to discuss certain choice of law issues. The parties are in accord that New York law governs the substantive aspects of the contractual and misrepresentation claims before the court. This accord is in keeping

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with the parties choice to have New York contract law govern the interpretation of the Merger Agreement.⁸⁷ But they part company on certain issues with respect to the precise burden of proof governing these claims.⁸⁸ For the sake of clarity, I will outline the approach I take up front.

Under either New York or Delaware law, IBP bears the burden of persuasion to justify its entitlement to specific performance. Under New York law, IBP must show that: (1) the Merger Agreement is a valid contract between the parties; (2) IBP has substantially performed under the contract and is willing and able to perform its remaining obligations; (3) Tyson is able to perform its obligations; and (4) IBP has no adequate remedy at law.⁸⁹ These elements must be proved by a preponderance of the evidence under New York law. Delaware law, by contrast, requires that a plaintiff demonstrate its entitlement to specific performance by clear and convincing evidence. The reasons for this are not entirely clear, but seem to rest in the policy concern that a compulsory remedy is not typical and should not be

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lightly issued, especially given the availability of the more usual legal remedy of money damages.⁹⁰

Although the conflict of law principles by no means provide clear guidance, the better reading of them suggests that New York law should apply. The relevant principles indicate that the law of Delaware should be applied "unless the primary purpose of the relevant rule of the otherwise applicable law is to affect decision of the issue rather than to regulate the conduct of the trial. In that event, the rule of the state of the otherwise applicable law will be applied."⁹¹IBP has the better of the argument, in my view. The question of which party has the burden of proof may be seen as purely procedural. But the question of what the burden of proof is typically constitutes a policy judgment designed to affect the outcome of the courts decision on the merits.⁹² For example, Delawares choice of the clear and convincing evidence standard appears to have been made for substantive policy reasons that do not affect the trial process. The parties have not provided me with authority suggesting why New York selected the

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preponderance standard, which is not the prevalent rule in the United States for specific performance.⁹³ Because the New York approach is a minority approach, I infer that New York public policy as expressed by its common law of long-standing is in favor of a standard that makes it easier, rather than more difficult, to hold a party to its specific promise. For that reason, I conclude that it is most appropriate to apply the law of New York to IBP's claim for specific performance, especially because the application of New York law is in keeping with the parties own choice of the law governing the Merger.

In this case, IBP's and Tysons respective abilities to perform the Merger Agreement are not disputed. Nor is there any doubt that the Merger Agreement, on its face, is a binding contract setting forth specific rights and duties. What is most at issue is whether Tyson had a right to terminate what appears to be a valid and binding contract, or to rescind that contract because of misrepresentations or material omissions of fact in the negotiating process.

Under both New York and Delaware law, a defendant seeking to avoid performance of a contract because of the plaintiffs breach of warranty

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must assert that breach as an affirmative defense.⁹⁴ Indeed, Tyson has plead breach of warranty as an affirmative claim, and not simply as a defense. Therefore, Tyson bears the burden to show that a breach of warranty excused its non-performance.

Under either Delaware or New York law, Tyson also bears the burden to prove its rescission claim. The parties agree that New York law generally governs these claims, but dispute what states law governs the precise burden of proof. Under New York law, the plaintiff must prove fraud by clear and convincing evidence.⁹⁵ Under Delaware law, by contrast, the standard is a preponderance.⁹⁶ Tyson claims that the issue of burden of proof is a purely procedural issue that ought to be decided by the law of Delaware. IBP contends that the issue is a matter of substantive policy that ought to be governed by the law of the state whose law is relevant to the determination of Tysons claim, the law of New York. For the same reasons

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discussed above, New Yorks choice of the clear and convincing standard is best viewed as a policy decision that affects the courts decision, rather than a matter of trial procedure.⁹⁷ Given the parties choice to use New York law as the law governing the Merger Agreement, it makes sense that the merits of any claim for rescission of that contract be decided using the evidentiary burden established by New York law.

Candor requires acknowledgement of the fact that the parties did not provide me with detailed briefing about the choice of law and burden issues discussed above. These questions may be thought to raise many subtle concerns that I do not pretend to have addressed in any sophisticated way.⁹⁸ As a result, I will indicate clearly whether there is any issue in the case that would be decided differently were the evidentiary burden different than I have just outlined.

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III. Resolution Of The Parties Merits Arguments

In the pages that follow, I first address whether IBP breached a representation and warranty that justified Tysons termination of the Merger Agreement. I then analyze the merits of Tysons rescission claims. I conclude with the question of whether Tyson was entitled to terminate its Cash Offer on February 28, 2001

A. General Principles Of New York Contract Law