Finally, Tyson argues that the merger agreement should be struck down because this agreement (and related contracts) were committed fraudulently. Tyson argues, in this regard, that IBP`s failure to disclose the comment letter and certain DFG documents prior to January 1, 2001 is grounds for resignation. Tyson says the deal should also be struck down because IBP management made oral statements about Rawhide`s projections that they knew were false, and that Tyson reasonably reckoned to his detriment. For the same reasons, Tyson asserts that a correspondence agreement it signed under the merger agreement should also be cancelled, giving Tyson the refund of a $66 million termination fee it paid to Rawhide Group on behalf of IBP. Tyson s. found that DFG`s impairment charge and below-average performance of IBP in the last quarter of 2000 and the first quarter of 2001 were substantial enough to allow Tyson to terminate the merger. The IBP responded that the financial statements were the risks of a dip in the cattle cycle. The Tribunal found that MAE`s representation was ambiguous and could be read as part of the agreement as a whole. The Tribunal justified this decision by the fact that this approach allowed for a „baseline“ that satisfactorily resembled the actual state of IBP, since Tyson was aware of the agreement when the parties signed the agreement.
Tyson`s skilful intercession sent the general counsel from IBP to say something different. Your hasty response runs counter to the text of the confidentiality agreement and the obvious intent of the agreement. Under Tyson`s approach, it could sue IBP for damages if IBP`s due diligence responses do not provide a copy of a complaint against IBP, which could be a frequent subject of due diligence. The intent of the confidentiality agreement is clear: it should compel Tyson to waive defects in due diligence as the basis for the action, unless that default constitutes a breach of a guarantee or guarantee in the resulting merger agreement. At the end of March, Don Tyson did not support a $30 per $US share buyback of IBP. The Tyson and IBP merger integration teams met on March 26, 2001. Tyson took the opportunity to increase the possibility of a revaluation of the bond deal between 27 and 28 $US per share. Bond told John Tyson that he didn`t see how the DFG show could justify a reduction of more than $50. Although he didn`t tell John Tyson, Bond had already come to the pragmatic conclusion that IBP might have to go up to $28.50 or something to make a deal without a fight. The price debate did not go any further. The agreement is defined as: In another New York case, Katz v. NVF Co., 100 A.D.2d 470, 473 N.Y.S.2d 786 (1984), two parties to the merger agreed that a partner had undergone a significant negative change, while full-year results showed a net loss of more than $6.3 million, compared to a profit of $2.1 million the previous year.
and significant operating losses due to plant closures. Id. at 788. The Katz case therefore represents a negative change of much greater size and duration than in this case. During the auction, lawyers for the IBP Special Committee negotiated possible merger agreements with Tyson and Smithfield.