EXHIBIT 99.12
EXHIBIT 1.1(n)
SHARE VOTING AGREEMENT
SHARE VOTING AGREEMENT (this "Agreement"), dated as of ________, 2003
by and between PILGRIM INTEREST, LTD., ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
(collectively, the "Stockholders"), CONAGRA FOODS, INC., a Delaware corporation
("Seller"), and PILGRIM'S PRIDE CORPORATION, a Delaware corporation (the
"Buyer").
WHEREAS, concurrently herewith, Seller and the Buyer are entering into
a Stock Purchase Agreement of even date herewith (the "Purchase Agreement")
pursuant to which Buyer will acquire a certain poultry business of Seller (each
capitalized term used herein, and not otherwise defined herein, shall have the
meaning set forth in the Purchase Agreement); and
WHEREAS, the Stockholders, in the aggregate, beneficially own or may
vote (whether in the capacity as trustee or otherwise), as of the date hereof,
8,500,292 shares of Class A common stock and 16,965,888 shares of Class B common
stock of the Buyer ("Buyer Common Stock") (such shares of Buyer Common Stock
owned by the Stockholders or which the Stockholders may vote on the date hereof,
together with any shares of Buyer Common Stock acquired by the Stockholders or
for which the Stockholders may acquire the right to vote after the date hereof,
hereinafter collectively referred to as the "Shares");
WHEREAS, the Board of Directors of the Buyer has approved this
Agreement and the transactions contemplated by the Purchase Agreement in
accordance with Section 203(a) of the Delaware General Corporation Law; and
WHEREAS, Seller is entering into the Purchase Agreement in reliance on
and in consideration of the Stockholders' representations, warranties, covenants
and agreements hereunder.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained and other good and valuable consideration, and intending to be
legally bound hereby, it is agreed as follows:
1. VOTE.
(a) Agreement to Vote. Each of the Stockholders hereby revokes any and
all previous proxies with respect to the Shares and irrevocably agrees to vote,
or cause to be voted, and otherwise act (including pursuant to written consent)
with respect to the Shares, (i) for the approval of the issuance of Class A
Common Stock pursuant to the Purchase Agreement at any meeting or meetings of
the stockholders of the Buyer, and at any adjournment, postponement or
continuation thereof, called for that purpose; (ii) for any
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other matters submitted to a vote of the stockholders of Buyer necessary to
approve the transactions contemplated by the Purchase Agreement; (iii) against
any action or agreement that is reasonably likely to result in a breach in any
material respect of any covenant, representation or warranty or any other
obligation of the Buyer under the Purchase Agreement; and (iv) against any
action that is reasonably likely to materially impede, interfere with, delay,
postpone or adversely affect in any material respect the transaction
contemplated by the Purchase Agreement. The obligations of the Stockholders
under this Section 1 shall remain in effect with respect to the Shares until,
and shall terminate upon, the earlier to occur of the Effective Time or the
termination of the Purchase Agreement in accordance with its terms. The
Stockholders hereby agree to execute such additional documents as Seller may
reasonably request to effectuate the foregoing.
(b) Irrevocable Proxy.
(i) The Stockholders hereby constitute and appoint
Seller, with full power of substitution, their true
and lawful proxy and attorney-in-fact to vote, at any
meeting (and any adjournment or postponement thereof)
of the Buyer's stockholders, the Shares in accordance
with Section 1(a). Such proxy shall be limited
strictly to the power to vote the Shares in the
manner set forth in the preceding sentence and shall
not extend to any other matters.
(ii) The proxy and power of attorney granted herein shall
be irrevocable during the term of this Agreement,
shall be deemed to be coupled with an interest
sufficient in law to support an irrevocable proxy and
shall revoke all prior proxies granted by the
Stockholders. The Stockholders agree not to grant any
proxy to any person which conflicts with the proxy
granted herein, and any attempt to do so shall be
void. The power of attorney granted herein is a
durable power of attorney and shall survive the death
or incapacity of any of the Stockholders who are
individuals.
(iii) If the Stockholders fail for any reason to vote the
Shares in accordance with the requirements of Section
1(a) hereof, then the Seller shall have the right to
vote the Shares at any meeting of the Buyer's
stockholders in accordance with the provisions of
this Section 1(b). The vote of Seller shall control
in any such conflict between its vote of the Shares
and a vote by any of the Stockholders of such Shares.
2. REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDER. The Stockholders
jointly and severally represent and warrant to Seller as follows:
2.1 OWNERSHIP / VOTE OF SHARES. On the date hereof, the
Stockholders are the record owners of the Shares. The Shares
are all of the Shares currently owned, or if not beneficially
owned, that may be voted exclusively, by the
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Stockholders, and constitute a majority of the outstanding
shares of each class of Buyer Common Stock. The Stockholders
currently have, and at Closing will have, good, valid and
marketable title to the Shares, free and clear of all liens,
encumbrances, and security interests (other than the
encumbrances created by this Agreement and other than
restrictions on transfer under applicable Federal and State
securities laws), or have the exclusive right to direct the
vote of the Shares in accordance with this Agreement and the
Shares are free of other restrictions, options, rights to
purchase or other claims that would adversely affect the
ability of the Stockholders to perform their obligations
hereunder or pursuant to which, the Stockholders could be
required to sell, assign or otherwise transfer the Shares.
2.2 AUTHORITY; BINDING AGREEMENT. The Stockholders have the full
legal right, power and authority to enter into and perform all
of their obligations under this Agreement. This Agreement has
been duly executed and delivered by the Stockholders and
constitutes a legal, valid and binding agreement of the
Stockholders, enforceable in accordance with its terms, except
as the enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium and similar laws, now
or hereafter in effect affecting creditors rights and remedies
generally or general principles of equity. Neither the
execution and delivery of this Agreement nor the consummation
by the Stockholders of the transactions contemplated hereby
will (i) violate, or require any consent, approval or notice
under, any provision of any judgment, order, decree, statute,
law, rule or regulation applicable to the Stockholders or the
Shares or (ii) constitute a violation of, conflict with or
constitute a default under, any contract, commitment,
agreement, understanding, arrangement or other restriction of
any kind to which any of the Stockholders are a party or by
which any of the Stockholders are bound, in each case the
effect of which would adversely affect the ability of any of
the Stockholders to perform their obligations hereunder.
2.3 RELIANCE ON AGREEMENT. The Stockholders and Buyer understand
and acknowledge that the Seller is entering into the Purchase
Agreement in reliance upon the Stockholders' execution and
delivery of this Agreement. The Stockholders acknowledge that
the agreement set forth in Section 1 is granted in
consideration for the execution and delivery of the Purchase
Agreement by the Seller.
3. CERTAIN COVENANTS OF THE STOCKHOLDER. Except in accordance with the
provisions of this Agreement, the Stockholders agree with, and covenant to,
Seller as follows:
3.1 TRANSFER. The Stockholders shall not, other than, in the case
of a Stockholder who is an individual, as a result of the
death of the Stockholder,
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(i) transfer (which term shall include, without limitation,
for the purposes of this Agreement, any sale, gift, pledge,
assignment, encumbrance or other disposition), whether
directly or indirectly (including by operation of law), or
consent to any transfer of, any or all of the Shares or any
interest therein, (ii) grant any proxies with respect to the
Shares, deposit the Shares into a voting trust or enter into a
voting agreement or similar arrangement with respect to the
Shares, or (iii) enter into any contract, option or other
agreement or understanding with respect to any transfer of any
or all such Shares or any interest therein or take any other
action with respect thereto, in either case, in a manner that
would prevent the Stockholders from performing their
obligations under this Agreement.
3.2 STOP TRANSFER. Each of the Stockholders hereby agrees with,
and covenants to, each other party hereto, that such
Stockholder shall not request that the Buyer register the
transfer (book entry or otherwise) of any certificate or
uncertified interest representing any of its Shares, unless
such transfer is made in compliance with this Agreement. The
Buyer agrees with, and covenants to, each other party hereto
that the Buyer shall not register the transfer (book entry or
otherwise) of any certificate or uncertified interest
representing any of the Shares, unless such transfer is made
in compliance with this Agreement.
3.3 NOTIFICATIONS. The Stockholder shall, while this Agreement is
in effect, notify Seller promptly, but in no event later than
two business days, of the number of any shares of Buyer Common
Stock acquired by the Stockholder after the date hereof.
3.4 STANDSTILL. The Stockholders shall not directly or indirectly,
offer, sell, or otherwise transfer, acquire, offer to buy, or
otherwise trade in, or induce others to offer, sell, or
otherwise transfer, acquire or offer to buy or otherwise trade
in, shares of Class A common stock or Class B common stock of
the Buyer, from the date hereof until the Closing.
4. EFFECT OF PURPORTED TRANSFER. The parties hereto agree that any
transfer of the Shares made other than in compliance with this Agreement shall
be null and void. Any such transfer shall convey no interest in any of the
Shares purported to be transferred, and the transferee shall not be deemed to be
a stockholder of the Buyer nor entitled to receive a new share certificate or
any rights, dividends or other distributions on or with respect to such Shares.
5. TERMINATION. This Agreement shall terminate on the earlier of (i)
the Effective Time (as defined in the Purchase Agreement) or (ii) upon the
termination of the Purchase Agreement in accordance with its terms.
6. MEETING. The Stockholders shall cause the appropriate officers and
directors of Buyer to call a special or annual meeting of stockholders of Buyer
to approve the
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issuance of Class A Common Stock pursuant to the Purchase Agreement (and such
other actions as may be submitted for consideration and vote of the stockholders
pursuant to the Purchase Agreement).
7. MISCELLANEOUS.
7.1 NOTICES. All notices, requests, claims, demands and other
communications under this Agreement shall be in writing and
shall be delivered personally or by next-day courier or
telecopied with confirmation of receipt, to the parties at the
addresses specified below (or at such other address for a
party as shall be specified by like notice; provided that
notices of a change of address shall be effective only upon
receipt thereof). Any such notice shall be effective upon
receipt, if personally delivered or telecopied or one day
after delivery to a courier for next-day delivery.
If to Seller: ConAgra Foods, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: Chief Financial Officer
If to Stockholders Pilgrim's Pride Corporation
or to Buyer: ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Chief Financial Officer
7.2 ENTIRE AGREEMENT. This Agreement, together with the documents
expressly referred to herein, constitute the entire agreement
and supersede all other prior agreements and understandings,
both written and oral, among the parties or any of them, with
respect to the subject matter contained herein.
7.3 AMENDMENTS. This Agreement may not be modified, amended,
altered or supplemented, except upon the execution and
delivery of a written agreement executed by the parties
hereto.
7.4 ASSIGNMENT. This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective
successors, assigns and personal representatives, but neither
this Agreement nor any of the rights, interests or obligations
hereunder shall be assigned by any of the parties without the
prior written consent of the other parties.
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7.5 GOVERNING LAW. This Agreement, and all matters relating
hereto, shall be governed by, and construed in accordance with
the laws of the State of Delaware without giving effect to the
principles of conflicts of laws thereof.
7.6 INJUNCTIVE RELIEF; JURISDICTION. The Stockholders and the
Buyer agree that irreparable damage would occur and that
Seller would not have any adequate remedy at law in the event
that any of the provisions of this Agreement were not
performed in accordance with their specific terms or were
otherwise breached. It is accordingly agreed that Seller shall
be entitled to an injunction or injunctions to prevent
breaches by the Stockholders or the Buyer of this Agreement
and to enforce specifically the terms and provisions of this
Agreement in any court of the United States located in the
State of Delaware or in any Delaware state court
(collectively, the "Courts"), this being in addition to any
other remedy to which they are entitled at law or in equity.
In addition, each of the parties hereto (i) irrevocably
consents to the submission of such party to the personal
jurisdiction of the Courts in the event that any dispute
arises out of this Agreement or any of the transactions
contemplated hereby, (ii) agrees that such party will not
attempt to deny or defeat such party to the personal
jurisdiction by motion or other request for leave from any of
the Courts and (iii) agrees that such party will not bring any
action relating to this Agreement or any of the transactions
contemplated hereby in any court other the Courts. The
Stockholders and Buyer hereby appoint, and shall give prompt
notice of such appointment to, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, as its
authorized agent (the "Authorized Agent") upon which process
may be served in any action based on this Agreement which may
be instituted in the Courts by Seller, and the Stockholders
and the Buyer expressly accept the jurisdiction of any such
Court in respect to such action. Such appointment shall be
irrevocable. The Stockholders, severally and jointly,
represent and warrant that the Authorized Agent has agreed to
act as said agent for service of process, and the Stockholders
agree, severally and jointly, to take any and all action,
including, without limitation, the filing of any and all
documents and instruments, which may be necessary to continue
such appointment in full force and effect. Service of process
upon the Authorized Agent and written notice of such service
to the Stockholders shall be deemed, in every respect,
effective service of process upon the Stockholders.
7.7 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original
and all of which together shall constitute one and the same
document.
7.8 SEVERABILITY. Any term or provision of this Agreement which is
invalid or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity
or unenforceability without rendering invalid or unenforceable
the remaining terms and provisions of this Agreement or
affecting the validity or enforceability of any of the terms
or provisions of
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this Agreement in any other jurisdiction. If any provision of
this Agreement is so broad as to be unenforceable, such
provision shall be interpreted to be only so broad as is
enforceable.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed, as of the date and year first above written.
CONAGRA FOODS, INC.
By:
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Its:
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PILGRIM'S PRIDE CORPORATION
By:
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Name:
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Title:
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PILGRIM INTEREST LTD.
By:
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, a managing partner
By:
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, a managing partner
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