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BRIDGING SERVICES AGREEMENT
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This BRIDGING SERVICES AGREEMENT (the "Agreement") is made as of this 1st
day of April, 1998 (the "Effective Date") by and between Ralston Purina
Company, a Missouri Corporation (hereinafter "Purina"), and Agribrands
International, Inc., a Missouri corporation (hereinafter "Agribrands").
WHEREAS, Purina and Agribrands have entered into an "Agreement and Plan
of Reorganization" (hereinafter the "Plan and Reorganization"), dated as of
April 1, 1998, through which Purina has effected a consolidation and
distribution to Agribrands of Purina's international animal feeds and
agricultural products businesses (hereinafter the "Agribrands Businesses");
and
WHEREAS, pursuant to said Plan of Reorganization, the parties have agreed
that Purina desires to provide to Agribrands, and Agribrands desires to
receive from Purina, certain services, as more fully described on Schedules
l(a) through 1(__), attached hereto and incorporated herein by reference,
(collectively, the "Agribrands Services") in connection with the Agribrands
Businesses on an interim basis following the consolidation and distribution;
and
WHEREAS, Agribrands desires to provide Purina, and Purina desires to
receive from Agribrands, certain services, as more fully described on
Schedules 2(a) through 2(__) attached hereto and incorporated herein by
reference, (collectively, the "Purina Services"), in connection with Purina's
businesses (other than the Agribrands Businesses) on an interim basis
following said consolidation and distribution; and
WHEREAS, Purina and Agribrands desire to enter into this Agreement to
confirm the terms and conditions pursuant to which Purina or Agribrands will
provide, for a limited time from and after the Effective Date, the Agribrands
Services or the Purina Services, as the case may be.
NOW THEREFORE, in consideration of the mutual convenants contained
herein, and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties agree as follows:
1. Services. Subject to the terms of this Agreement, from and after
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the Effective Date, the party providing particular Purina or Agribrands
Services, as the case may be, (the "Provider") shall make such Services
available to the party receiving such Services (the "Recipient") in accordance
with the practices in effect as of the Effective Date or as specifically set
forth in the Schedules. In consideration for the Services, the Recipient
shall pay to the Provider the fee or other charge set forth opposite each such
service on the applicable Schedule and each Service provided will be
separately invoiced to Recipient in accordance with the billing provisions set
forth in the Schedule with respect to such Service. The Recipient shall give
the Provider written notice of its intent to terminate any one or more of the
Services at least 30 days prior to the termination of the service unless any
Schedules hereto provide for a different notice period. If such a different
notice period is provided, then such different notice period shall apply to
the applicable Services. This Agreement shall continue in full force and
effect with respect to any Services not terminated by any such notices.
2. Liability; Indemnification. The Provider shall have no liability to the
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Recipient with respect to its furnishing any of the Services hereunder except
for its willful misconduct. By agreeing to provide the Services as an
accommodation to the Recipient, the Provider is making no representations or
warranties as to the quality, suitability or adequacy of the Services for any
purpose or use. In providing the Services, the Provider shall not be
obligated to (i) hire any additional employees; (ii) maintain the employment
of any specific employee; (iii) purchase, lease or license any additional
equipment or software; or (iv) pay any costs related to the transfer or
conversion of the Recipient's data to the Recipient or any alternate supplier
of administrative services. The sole remedy of the Recipient in the event
data owned by it is lost or damaged in any way during processing by the
Provider is the refund to it of any charges paid for the processing of the
damaged data. The Provider agrees to exercise reasonable diligence to correct
errors or deficiencies in the Services but the Recipient shall have no other
remedy against the Provider regardless of any loss suffered by the Recipient
or any other person or entity. The Provider shall not be liable to any third
party in any way for any obligation or commitment pursuant to this Agreement
or for an act or omission and the Recipient shall be solely liable and
responsible for any and all claims, liabilities, obligations, losses, costs,
expenses, litigation, proceedings, taxes, levies, imposts, duties,
deficiencies, assessments, charges, allegations, demands, damages or judgments
of any kind or nature whatsoever (hereinafter the "Liabilities") related to,
arising from, asserted against or associated with the Provider furnishing or
failing to furnish to the Recipient any of the Services described herein.
Upon the termination of any of the Services, the Recipient shall be obligated
to return to the Provider, as soon as practicable, any equipment or other
property of the Provider relating to the Services which is owned. or leased by
it and is or was in the Recipient's possession or control. As of the
Effective Date, the Recipient shall indemnify/and hold the Provider and its
affiliates and their respective directors, shareholders, officers, employees,
agents, consultants, representatives, successors, transferees and assigns
harmless from and against any and all Liabilities (including, without
limitation, reasonable fees and expenses of counsel) of whatever kind and
nature related to, arising from, asserted against, or associated with the
Provider's furnishing or failing to furnish the Services provided for in this
Agreement, other than Liabilities arising out of the fraudulent acts or
willful misconduct of the Provider or its affiliates or their respective
directors, shareholders, officers, employees, agents, consultants,
representatives, successors, transferees or assigns. Nothing herein, however,
shall be deemed to effect the right of the Recipient to seek damages or other
rights of redress against the Provider for breach of the provisions of this
Agreement under U.S. law as provided under this Agreement.
3. Claims. Recipient's receipt of any Services performed hereunder
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shall be an unqualified acceptance of, and a waiver by it of any and all
claims with respect to such Services unless it gives the Provider notice of
claim within 30 days after such receipt; no claim by the Recipient against the
Provider of any kind, whether as to Services performed or for delayed
performance or non-performance and whether or not based on negligence, shall
be greater in amount than the fee for the Services in respect of which such
claim is made; and in no event will the Provider be liable to the Recipient
for any incidental or consequential damages, whether or not caused by or
resulting from negligence or breach of obligations hereunder.
4. Additional Services. If a party to this Agreement wants the other
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to provide any service other than the Services provided for in the Schedules,
such party shall notify the other in writing, and within 30 days following the
giving of such notice such other party shall decide, in its sole discretion,
whether to provide such additional service. If such other party agrees to be
a Provider with respect to such additional service, the Recipient shall be
invoiced for such services in accordance with billing practices reasonably
determined by the Provider. The provision by Provider of any such additional
services shall be subject to all other provisions of this Agreement, as if
those services had originally been part of the Schedules to this Agreement.
5. Confidentiality. Any and all information which is not generally
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known to the public which is exchanged between the parties in connection with
this Agreement, whether of a technical or business nature, shall be considered
to be confidential. The parties agree that confidential information shall not
be disclosed to any third party or parties without the prior written consent
of the other party. Each party shall take reasonable measures to protect
against nondisclosure of confidential information by its officers and
employees. Confidential information shall not include any information (i)
which is or becomes part of the public domain, (ii) which is obtained from
third parties who are not bound by confidentiality obligations or (iii) which
is required to be disclosed by law, regulation, legal process or the rules of
any state or federal regulatory agency or the New York Stock Exchange. The
provisions of this section shall survive the termination of this Agreement.
6. Assignment. Notwithstanding anything to the contrary in this
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Agreement, this Agreement shall not be assignable by either party hereto, to
any other person, firm or entity without the prior written consent of the
other party; provided, however, that the Agreement in its entirety, or any
portion of the rights and obligations established hereunder, may be assigned
by either party hereto to one of its directly or indirectly wholly-owned
subsidiaries (provided such ownership is ___% or more) without the prior
written consent of the other party. Except as expressly provided herein,
nothing herein shall create or be deemed to create any third party beneficiary
rights in any person or entity not a party to this Agreement.
7. Waiver, Amendment or Modification. No waiver, amendment or
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modification of this Agreement shall be valid unless in writing and duly
executed by the party to be charged therewith.
8. Entire Agreement. This Agreement and the Schedules hereto
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constitutes the entire agreement of the parties concerning the subject matter
hereof and supersedes all previous agreements between the parties, whether,
written or oral, with respect to such subject matter.
9. Governing Law and Language. Despite any different result required
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by any conflicts of law provisions, this Agreement shall be governed by the
laws of the State of Missouri, United States of America. This Agreement is
originally drafted in the English language. Should it be translated into any
other language, the English version shall govern any interpretation thereof.
10. Notices. All notices, requests, demands, waivers and other
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communications (hereafter "notices") required or permitted to be given
pursuant to this Agreement shall be in writing and shall be deemed to have
been duly given (i) at the time of delivery, if delivered by hand, (ii) on the
date of transmission, if sent by facsimile, telegram or other standard form of
telecommunications or (iii) three business days after mailing, if mailed
registered or certified first-class mail, postage prepaid, return receipt
requested. Notices shall be delivered or sent, as the case may be, to the
following addresses or to such other addresses as the parties may hereafter
designate by like notice similarly provided:
If to Agribrands: Agribrands International, Inc.
9811 South Forty Drive
St. Louis, MO 63124
Attn: General Counsel
If to Purina: Ralston Purina Company
Checkerboard Square
St. Louis, Missouri 63164
Attn: General Counsel
11. ForceMajeure. Anything else in this Agreement notwithstanding,
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the Provider shall be excused from providing Services hereunder while, and to
the extent that, its performance is prevented by fire, drought, explosion,
flood, invasion, rebellion, earthquake, civil commotion, strike or labor
disturbance, governmental or military authority, acts of God, mechanical
failure or any other event or casualty beyond the reasonable control of the
Provider, whether similar or dissimilar to those enumerated in this paragraph
(hereafter a "Casualty"). In the event of a Casualty, the Recipient shall be
responsible at its own cost for making its own alternative arrangements with
respect to the interrupted Services.
12. Independent Contractor. The relationship of Provider and
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Recipient which is created hereunder is that of an independent contractor.
This Agreement is not intended to create and shall not be construed as
creating between Agribrands and Purina the relationship of affiliate,
principal and agent, joint venture, partnership, or any other similar
relationship, the existence of which is hereby expressly denied.
13. Billing and Payment. Unless otherwise provided in an applicable
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Schedule, the Provider shall bill the Recipient on a monthly basis for the
amounts due to the Provider for services provided pursuant to the terms of
this Agreement. All such bills shall contain reasonable detail and shall be
due 30 days after receipt. The failure of the Recipient to pay any bill
within 30 days of receipt shall result in the Recipient owing the Provider an
additional handling charge equal to l% per month of the amount due from the
date due to the payment date.
14. Term. It is intended that the Services be provided by each party
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hereto as a temporary accommodation to the other. Each party shall arrange
for the relevant Services to be provided by its own employees or by
third-party providers as soon as is practicable even if such arrangements
result in greater cost to it than it would incur if the Services were provided
by the other. In no event, however, shall either be obliged to provide any
Services after September 30, 1999. Notwithstanding the foregoing, if any
Schedules hereto provide for the provision of Services for a longer period,
such longer period shall govern the provision of such Services.
15. Waiver. The failure of either party at any time or times to
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enforce or require performance of any provision hereof shall in no way operate
as a waiver or affect the right of such party at a later time to enforce the
same. No waiver by either party of any condition or the breach of any
provision contained in this Agreement.
16. Severability. If any provision of this Agreement shall hereafter
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be held to be invalid or unenforceable for any reason, that provision shall be
reformed to the maximum extent permitted to preserve the parties' original
intent, failing which it shall be severed from this Agreement with the balance
of the Agreement continuing in full force and effect. Such occurrence shall
not have the effect of rendering the provision in question invalid in any
other jurisdiction or in any other case or circumstances or of rendering
invalid any other provisions contained herein to the extent that such other
provisions are not themselves actually in conflict with any applicable law.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed on the day and year first above written.
RALSTON PURINA COMPANY AGRIBRANDS_________
By: ______________________________ By:______________________
Name:_____________________________ Name:___________________
Title: _____________________________ Title:____________________
SCHEDULE 1(__)
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SCHEDULE 2(__)
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