Tyson cites another merger agreement in which the Wachtell company, Lipton used this technique. DX 1207. Again, I emphasize that my conclusion is strongly influenced by my time perspective, which recognizes that even good companies don`t always operate at a consistent level of profitability. If another political decision is the right one, a contrary conclusion could be drawn. This different and shorter-term approach will, I fear, make it more difficult to negotiate merger agreements and will lead to clauses on significant negative effects of great importance. Finally, Tyson argues that the merger agreement should be terminated because that agreement (and related contracts) were entered into fraudulently. In this context, Tyson argues that the failure of the IBP, the opinion letter and certain documents related to the DFG prior to 1. January 2001. Tyson says the deal should also be revoked because IBP management made oral statements about Rawhide`s projections, which they knew were false, on which Tyson reasonably relied to his detriment. For the same reasons, Tyson claims that a written agreement it signed as part of the merger agreement should also be revoked, entitling Tyson to a refund of the $66 million termination fee it paid to the Rawhide Group on behalf of IBP.
On December 21, J.P. Morgan sent instructions to Tyson and Smithfield requesting them to submit the best final offers and proposed merger agreements by December 29, 2000 at 5:00 p.m. .m .m. The instructions informed bidders that the Special Committee was free to amend the rules of procedure and that no agreement was binding until it was reduced to a signed contract. Parol`s evidence supports the IBP`s position. The representations and warranties contained in the agreement have been largely removed from Rawhide`s existing merger agreement. Tyson`s lawyers created the first draft of the agreement using the Rawhide agreement because it contained assurances and guarantees favorable to a buyer. The agreement results from the definition of the following: In their pleadings, the parties argue whether §§ 5.07-5.09 include a certain standard of materiality. Tyson contends that these sections are written in the language of federal securities laws and the opinions of accountants and should be interpreted as is. IBP argues that those articles are contained in a merger agreement between sophisticated parties and that materiality must be defined by reference to an objectively reasonable acquirer in Tyson`s position who possesses the same combination of information as Tyson. I`ll start with a fundamental question: Is this a truly unique opportunity that can`t be monetized appropriately? If the roles were reversed and Tyson tried to apply the treaty, a great precedent would suggest that the treaty should be applied explicitly.
In the more typical situation, a acquirer argues that it can only be made complete if it can explicitly enforce the acquisition agreement because the target company is unique and produces value of an unquantifiable nature when combined with the acquiring entity. In this case, the seller of the transaction may make the same argument because the merger agreement offers IBP shareholders the choice between cash or Tyson shares, or a combination of both. Through this election, IBP shareholders had the opportunity to share the benefits of what Tyson presented as a unique and synergistic combination. This court did not find a compelling reason, and Tyson found no compelling reason why sellers of mergers and acquisitions should have less right to demand a particular service than buyers, and none of them crossed my mind independently. Tyson`s arguments that the comment letter was an obstacle to credulity. Lederman suggested that Tyson would have boycotted the auction if he knew the SEC would question the pooling treatment in light of the cfba merger. He would have advised it because pooling was important to Smithfield. But Smithfield abandoned any pooling conditions for his bid and Tyson had previously identified pooling as a problem. In the end, the SEC – which questions pooling whenever it sees it – agreed that accounting for the IBP for the CFBA transaction was appropriate. Tyson also asserted that Stephens, Inc. would not have given her an opinion of fairness if she had been aware of the comment letter because the letter would have raised such serious issues. But Stephens` witness suggested that he had never been informed by Tyson of the $30 million to $35 million in revenue expected at DFG, because accounting problems at DFG were still unsolved and were due to fraud by the former director of DFG.
The witness stated that he would not have made a statement if he had known of these facts. However, Tyson obviously considered these facts so insignificant that they didn`t tell Stephens about them. To resolve Tyson`s argument about material adverse effects, the court must perform a completely inaccurate exercise. The simplicity of the words in § 5.10 is misleading because the application of these words is of a discouraging complexity. At first glance, § 5.10 is a comprehensive clause that exposes IBP to risk for a variety of uncontrollable factors that could significantly affect its overall business or results of operations. Although many merger agreements contain specific exclusions from EAW clauses that cover declines in the global economy or industrial sector concerned or adverse weather or market conditions, § 5.10 does not have such explicit exclusions. .
