AGREEMENT
By and Among
ConAgra Foods, Inc.,
S&C Holdco, Inc.
and
HMTF Rawhide, L.P.
Dated as of May 20, 2002
AGREEMENT
AGREEMENT, dated as of May 20, 2002, by and among HMTF Rawhide, L.P.,
a Delaware limited partnership ("Acquisition LP"), ConAgra Foods, Inc., a
Delaware corporation ("ConAgra"), and S&C Holdco, Inc., a Delaware corporation
("Holdco").
RECITALS:
(a) ConAgra and Acquisition LP desire to enter into a transaction
to jointly own and operate the Acquired Companies pursuant to
the integrated acquisition steps outlined herein below.
(b) Acquisition LP's sole general partner is HMTF RW L.L.C. and
its limited partners are Greeley Investments, LLC and
Affiliates of Hicks, Muse, Tate & Furst Incorporated, each of
which respectively have 99.979% and 0.001998% limited partners
interests as of the date hereof.
(c) ConAgra is the direct owner of all of the issued and
outstanding capital stock of Holdco and Holdco will be the
direct owner of all of the issued and outstanding capital
stock of S&C Holdco 2.
(d) S&C Holdco 2 will be the direct owner of all of the issued and
outstanding capital stock of S&C Holdco 3 and Cattle Holdco.
(e) S&C Holdco 3 will be the direct owner of all of the issued and
outstanding capital stock of U.S. Acquisition Co.
(f) U.S. Acquisition Co. will be the direct owner of all of the
issued and outstanding capital stock of Australia
Acquisition Co. and Brand Holdco (collectively with Holdco,
S&C Holdco 2, S&C Holdco 3, Cattle Holdco and U.S.
Acquisition Co., the "Acquiring Companies").
(g) ConAgra is the owner, directly or indirectly, of all the
issued and outstanding capital stock, voting securities and
other ownership interests of the companies (other than Better
Beef LLC and Colorado Feed LLC, which ownership interests
shall be described on Exhibit A) set forth on Exhibit A
(collectively, the "Acquired Companies").
(h) As provided herein, Acquisition LP shall purchase a majority
equity interest in Holdco.
(i) As provided herein, Holdco or its Affiliates shall purchase
from ConAgra or its Affiliates all the issued and outstanding
shares of capital stock, voting securities and other ownership
interests of the Acquired Companies (and in the case of Better
Beef LLC and Colorado Feed LLC, all such ownership interests
therein owned, directly or indirectly, by ConAgra).
AGREEMENT:
In consideration of the foregoing recitals and in further consideration
of the mutual covenants and agreements hereinafter contained, the parties hereto
agree, subject to the terms and conditions hereinafter set forth, as follows:
1. Definitions.
1.1. Certain Defined Terms. As used in this Agreement, the
following terms shall have the following respective
meanings:
"Action" shall mean any claim, action, litigation, suit,
grievance, arbitration, inquiry, proceeding or investigation by or
before any Governmental Authority or arbitrator.
"Affiliate" shall mean, with respect to any specified Person,
any other Person that directly, or indirectly through one or more
intermediaries, Controls, is Controlled by, or is under common Control
with, such specified Person.
"Agreement" shall mean this Agreement.
"Businesses" shall mean the businesses conducted by the
Acquired Companies.
"Closing Material Adverse Effect" shall mean the occurrence
after the date hereof of either (a) a case of bovine spongiform
encephalopathy in livestock located in any of the following countries:
the United States or Australia; or (b) a case of bovine hoof (or foot)
and mouth disease in livestock located in any of the following
countries: the United States or Australia.
"Code" shall mean the Internal Revenue Code of 1986, as
amended.
"Company Material Adverse Effect" shall mean any result,
occurrence, fact, change or event (whether or not such result,
occurrence, fact, change or event has manifested itself in the
historical financial statements of the Businesses, and whether known or
unknown as of the date of this Agreement or the Closing Date) that has
had, or can reasonably be expected to have, a material adverse impact
on (A) the (1) business, (2) operations, (3) financial condition, (4)
results of operations or (5) capitalization, in each case, of the
Businesses taken as a whole, or (B) the ability of ConAgra, any
Acquired Company or any Acquiring Company to consummate the
transactions contemplated by this Agreement; provided, however, that
the following shall not be taken into account in determining whether
there has been a "Company Material Adverse Effect":
(i) any such effects attributable to general conditions
affecting the United States or Australian economy nationally or
regionally (including, without limitation, prevailing interest rate and
securities market levels);
(ii) any such effects attributable to conditions (whether
economic, legal, regulatory, financial, political or otherwise)
affecting the beef processing, pork processing or cattle feeding
industry or market generally which do not affect the Businesses
materially disproportionally relative to other similarly situated
participants in the beef processing, pork processing or cattle feeding
industry or market;
(iii) any such effects relating to or resulting from, directly
or indirectly, the transactions contemplated by this Agreement or the
announcement or pendency thereof;
(iv) the fees and expenses, severance and other benefit or
compensation costs paid or to be paid by an Acquiring Company or
Acquired Company pursuant to this Agreement in connection with the
transactions contemplated in this Agreement;
(v) any action taken by, or inaction of, ConAgra with the prior
written consent of Acquisition LP; and
(vi) any failure by the Businesses to meet any internal
projections, expectations or forecasts or published revenue or earnings
predictions for any period ending on or after the date of this
Agreement as a result of any one or more of the events described in
items (i) - (v) above.
"Confidentiality Agreement" shall mean collectively the
Confidentiality Agreement dated October 26, 2001, between Booth Creek
Management Corporation and ConAgra and the Confidentiality Agreement
dated February 19, 2002, between ConAgra and Hicks, Muse, Tate & Furst
Incorporated.
"Control" (including the terms "Controlled by" and "under
common Control with"), with respect to the relationship between or
among two or more Persons, shall mean the possession, directly or
indirectly, of the power to direct or cause the direction of the
affairs or management of a Person, whether through the ownership of
voting securities, by contract or otherwise, including, without
limitation, the ownership, directly or indirectly, of securities having
the power to elect a majority of the board of directors or similar body
governing the affairs of such Person.
"Covered Countries" shall mean the United States, Australia,
Canada, Japan, Korea, Taiwan, China and Mexico.
"DOJ" shall mean the United States Department of Justice.
"Environmental Site Assessments" shall mean the reports,
surveys and site assessments listed on Exhibit 1.1(a) attached hereto.
"FATA" shall mean the Foreign Acquisitions and Takeovers Act
of 1975, as amended.
"Feed Lot Business" shall mean the cattle feeding and feed lot
business activities conducted by U.S. Beef Company, its Subsidiaries,
and Colorado Feed LLC in the United States at the locations set forth
on Exhibit 1.1(b), including, without limitation, the cattle feeding
activities conducted for third parties at such locations.
"Fee Letter" shall mean the fee letter dated May 20, 2002,
relating to the Senior Bank Commitment Letter and the Bridge Commitment
Letter.
"FIRB" shall mean the Foreign Investment Review Board.
"FTC" shall mean the United States Federal Trade Commission.
"GAAP" shall mean United States generally accepted accounting
principles applied in a manner consistent with the accounting
principles used in the preparation of, and reflected in, the Audited
Financial Statements.
"Governmental Authority" shall mean any federal, state, local,
municipal or foreign government, or other governmental, regulatory or
administrative authority, agency or commission or any court, tribunal,
or judicial or arbitral body.
"HSR Act" shall mean the Hart-Scott-Rodino Antitrust
Improvements Act of 1976, as amended.
"Knowledge" shall mean, when used in reference to ConAgra or
the Acquired Companies, the actual knowledge of those individuals
listed on Exhibit 1.1(c) hereto.
"Law" shall mean any currently existing federal, state, local
or foreign statute, law, ordinance, regulation, rule, order, code,
permit, governmental restriction, decree, injunction or other
requirement of law of any Governmental Authority or any judicial or
administrative interpretation thereof.
"Liabilities" shall mean any and all debts, liabilities and
obligations of any nature, whether known or unknown, contingent or
liquidated.
"Lien" shall mean any mortgage, pledge, hypothecation,
security interest, encumbrance, easement, covenant, title defect, title
retention agreement, voting trust agreement, right-of-first refusal,
and lien of any nature.
"Person" shall mean any individual, partnership, firm,
corporation, limited liability company, association, trust,
unincorporated organization, other entity or Governmental Authority.
"Prevailing Rate" shall mean seven percent (7%) per annum.
"Processing Business" shall mean the business of the Acquired
Companies other than the Feed Lot Business.
"Processing Companies" shall mean, collectively, each of the
Acquiring Companies and Acquired Companies other than Cattle Holdco,
Cattleco and Colorado Feed LLC.
"Subsidiary" shall mean, with respect to any Person, another
Person owned directly or indirectly by such Person by reason of such
Person owning or controlling an amount of the voting securities, other
voting ownership or voting partnership interests of another Person
which is sufficient to elect at least a majority of its Board of
Directors or other governing body of another Person or, if there are no
such voting interests, at least a majority of the equity interests of
another Person.
1.2. Other Defined Terms. The following terms shall have the
meanings given to such terms in the Sections indicated below.
Term Section
1936 Act.............................................................................. 7.9.1(ix)
Acquired Companies.................................................................... recital (g)
Acquiring Companies................................................................... recital (f)
Acquisition LP........................................................................ preamble
Acquisition LP Affiliate.............................................................. 15.4
Acquisition LP Funding Amount......................................................... 2.2.1
Acquisition LP Holdco Stock........................................................... 2.2.2
Acquisition LP Percentage Interest.................................................... 2.2.2
Acquisition Proposal.................................................................. 9.12.1
Additional Consideration.............................................................. 2.2.7
Adjustment............................................................................ 13.5.2
Aggregate Consideration............................................................... 3.1.1
Armour Transition License Agreement................................................... 4.1.1(v)
ASIC.................................................................................. 2.1.15
Audit................................................................................. 5.1.2
Audited Australian Closing Balance Sheet.............................................. 5.1.2
Audited Cattleco Closing Balance Sheet................................................ 5.1.2
Audited Closing Balance Sheets........................................................ 5.1.2
Audited Financial Statements.......................................................... 7.7
Audited Processing Closing Balance Sheet.............................................. 5.1.2
Australia Acquisition Co.............................................................. 2.1.15
Australia Holdco...................................................................... 2.1.21
Australia Operating Company .......................................................... 2.1.5
Australia Operating Company Stock..................................................... 2.2.8
Australian Acquired Company........................................................... 7.17.20
Australian Company.................................................................... 7.9.1(ix)
Australian Stockholder Net Investment................................................. 5.1.7(iii)
Authorization Date.................................................................... 14.2.1
Balance Sheet Date.................................................................... 7.7
Better Beef LLC....................................................................... 2.1.11
BI Claim.............................................................................. 9.7.4
Brand Holdco.......................................................................... 2.1.16
Bridge Commitment Letter.............................................................. 8.5
By-Products Agreement................................................................. 4.1.1(xix)
Cactus Project........................................................................ 14.1.1
California Kim Litigation............................................................. 9.7.3
Cash Management Agreement............................................................. 2.2.3
Cattle Holdco......................................................................... 2.1.3
Cattle Supply Agreement .............................................................. 4.1.1(x)
Cattleco.............................................................................. 2.1.6
Cattleco Loan Agreement............................................................... 2.2.3
Cattleco Loan Amount.................................................................. 2.2.3
Cattleco Note......................................................................... 2.2.7
Cattleco Revolver..................................................................... 2.2.3
Cattleco Stock........................................................................ 2.2.7
Cattleco Stock Purchase Price......................................................... 2.2.7
Cattleco Stockholder Net Investment................................................... 5.1.7(ii)
Cattlemen Litigation.................................................................. 12.3
CERCLA................................................................................ 7.18.9(i)
CERCLIS............................................................................... 7.18.7
Charter Documents..................................................................... 7.2
Closing............................................................................... 4.1
Closing Date.......................................................................... 4.1
Colorado Feed LLC..................................................................... 2.1.6
Combined Processing Company Stockholders Net Investment............................... 5.1.7(i)
Commitment Letters.................................................................... 8.5
Commonly Controlled Entity............................................................ 7.17.5
Company Employees..................................................................... 6.1
Company Litigation.................................................................... 9.7.1
Company Material Contracts............................................................ 7.14
ConAgra............................................................................... preamble
ConAgra 401(k) Plans.................................................................. 6.5
ConAgra Disclosure Schedule........................................................... 7
ConAgra Group......................................................................... 7.9.1(vii)
ConAgra Indemnified Costs............................................................. 12.3
ConAgra Indemnified Parties........................................................... 12.3
ConAgra Mexican Stock................................................................. 2.2.6
ConAgra Minority Mexican Stock Interest............................................... 2.2.5
ConAgra Pension Plans................................................................. 6.4
ConAgra Red Meat Business............................................................. 7.7
ConAgra's 125 Plan.................................................................... 6.7
Deed of Cross Guarantee............................................................... 2.1.22
Deloitte.............................................................................. 5.1.1
Divested Companies.................................................................... 2.1.5
Divestiture........................................................................... 12.1.1(d)
Dumas Plant........................................................................... 14.1.1(a)
Effective Time........................................................................ 4.1
Election Notice....................................................................... 14.2.1
Employee Plan......................................................................... 7.17
Engagement Letter..................................................................... 8.5
Environmental Costs or Liability...................................................... 7.18.9(iv)
Environmental Laws.................................................................... 7.18.9(i)
Environmental Permits................................................................. 7.18.3
ERISA................................................................................. 6.3
Estimated Australian Closing Balance Sheet............................................ 3.1.2
Estimated Australian Stockholder Net Investment....................................... 3.1.2
Estimated Combined Processing Company Stockholders Net Investment..................... 3.1.2
Estimated Processing Company Closing Balance Sheet.................................... 3.1.2
Excess Non-Income Tax Accrual......................................................... 13.3.3
Factoring Agreements.................................................................. 9.11
Final Australian Closing Balance Sheet................................................ 5.1.3(ii)
Final Cattleco Closing Balance Sheet.................................................. 5.1.3(ii)
Final Processing Closing Balance Sheet................................................ 5.1.3(ii)
Financial Advisory Agreement.......................................................... 4.1.1(xii)
Financial Statements.................................................................. 7.7
Fund V................................................................................ 2.2.1
Fund V Commitment Letter.............................................................. 8.5
Garden City Assets.................................................................... 12.7.2
Garden City Insurance Capital Contribution............................................ 9.7.4
Garden City Insurance Claims.......................................................... 9.7.4
Garden City Value..................................................................... 12.7.2
Gillco................................................................................ 8.5
Gillco Subscription Agreement......................................................... 8.5
Guarantees............................................................................ 9.2.1
Hangar License Agreement.............................................................. 4.1.1(vii)
Hazardous Materials................................................................... 7.18.9(ii)
Holdco................................................................................ preamble
Holdco Acquisition Note............................................................... 2.2.6(vii)
Holdco Common Stock................................................................... 2.2.2
Holdco Indemnified Costs.............................................................. 12.1.1
Holdco Indemnified Parties............................................................ 12.1.1
Holdco's 125 Plan..................................................................... 6.7
Income Taxes.......................................................................... 7.9.3
Indemnification and Release Agreement................................................. 4.1.1(i)
Indemnified Costs..................................................................... 12.3
Indemnified Parties................................................................... 12.3
Indemnifying Party.................................................................... 12.4.1
Independent Expert.................................................................... 5.1.3(ii)
Initial Australian Stockholder Net Investment......................................... 3.1.1
Initial Combined Processing Company Stockholders Net Investment....................... 3.1.1
KK Japan Stock........................................................................ 2.2.6
Korean Kim Litigation................................................................. 9.7.3
Labor Laws............................................................................ 7.16.3
Leases................................................................................ 7.14
Leuking Litigation.................................................................... 12.1.2(a)
Licenses.............................................................................. 7.13.2
LLC Employees......................................................................... 6.19
Management............................................................................ 9.1.1
material covenants and material obligations........................................... 9.10
Montgomery Facilities................................................................. 14.2.1
Monthly Reports....................................................................... 9.1.3
Montgomery Owner...................................................................... 14.2.1
Most Recent Balance Sheet............................................................. 7.7
Most Recent Unaudited Financial Statements............................................ 7.7
Multiemployer Plan.................................................................... 6.4
Non-Income Taxes...................................................................... 7.9.3
Nonqualified Plan..................................................................... 6.11
Non-Trademark Intellectual Property................................................... 7.10.4
Notice of Objection................................................................... 5.1.3(i)
NPL................................................................................... 7.18.7
Pension Plan.......................................................................... 7.17
Post-Closing Cattlemen Litigation..................................................... 12.3
Pre-Closing Cattlemen Litigation...................................................... 12.1.2(a)
Pre-Closing Damages................................................................... 12.1.2(b)
Pre-Closing Period.................................................................... 7.9.3
Pre-Closing Straddle Period Income Tax................................................ 13.3.3
Pre-Closing Straddle Period Non-Income Tax............................................ 13.3.3
Pre-Existing Environmental Matters.................................................... 12.1.1(a)
Preferred Supplier Agreement.......................................................... 4.1.1(ii)
Preliminary Australian Closing Balance Sheet.......................................... 5.1.1
Preliminary Cattleco Closing Balance Sheet............................................ 5.1.1
Preliminary Closing Balance Sheets.................................................... 5.1.1
Preliminary Processing Company Closing Balance Sheet.................................. 5.1.1
Prior Unaudited Financial Statements.................................................. 7.7
Processing Company Stock.............................................................. 2.2.8
Profit Amount......................................................................... 12.7.5
Promissory Note....................................................................... 2.2.6(ix)
Proposed Purchase Price............................................................... 14.2.1
Quarterly Statements.................................................................. 9.1.3
Records............................................................................... 9.9
Reimbursement Accounts................................................................ 6.7
Release............................................................................... 7.18.9(iii)
Report................................................................................ 5.1.2
Representation and Warranty Certificate............................................... 9.2.3(c)
Retained Records...................................................................... 9.9
Rights................................................................................ 9.8
Risk Management Agreement............................................................. 4.1.1(ix)
S&C Holdco 2.......................................................................... 2.1.1
S&C Holdco 2 Acquisition Note......................................................... 2.2.6(vi)
S&C Holdco 3.......................................................................... 2.1.2
S&C Holdco 3 Acquisition Note......................................................... 2.2.6(v)
Securities Act........................................................................ 7.5
Senior Bank Commitment Letter......................................................... 8.5
Straddle Period Return................................................................ 13.3.3
Stockholders Agreement................................................................ 4.1.1(iii)
Superior Offer........................................................................ 9.12.2
Swift Transition License Agreement.................................................... 4.1.1(vi)
Tax Losses............................................................................ 13.5.1
Tax................................................................................... 7.9.3
Tax return............................................................................ 7.9.3
Termination Date...................................................................... 11.1(b)
Termination Fee....................................................................... 9.12.1
third-party action.................................................................... 12.4.1
Trademark Intellectual Property....................................................... 7.10.3
Transaction Documents................................................................. 7.3
Transfer.............................................................................. 14.2.4
Transfer Notice....................................................................... 14.2.1
Transition Services Agreement......................................................... 4.1.1(iv)
U.S. Acquisition Co................................................................... 2.1.4
U.S. Beef Company .................................................................... 2.1.5
U.S. Beef Company Stock............................................................... 2.2.6
U.S. Pork Company .................................................................... 2.1.8
U.S. Pork Company Stock............................................................... 2.2.6
U.S. Processing Company Stock......................................................... 2.2.6
Unaudited Financial Statements........................................................ 7.7
Voting Debt........................................................................... 7.6
Welfare Plan.......................................................................... 6.6
2. Formation Covenants.
2.1. Certain Pre-Closing Covenants and Actions. ConAgra and Holdco
hereby covenant and agree to take, or cause to be taken, the
following actions prior to the Closing Date:
2.1.1. ConAgra shall cause Holdco to (i) incorporate S&C Holdco
2, Inc. ("S&C Holdco 2") by filing with the Secretary of State of
the State of Delaware a certificate of incorporation in the form
attached hereto as Exhibit 2.1.1(a), (ii) cause S&C Holdco 2's
organizational minutes to be in the form attached hereto as
Exhibit 2.1.1(b), and (iii) cause S&C Holdco 2 to take the
actions set forth in such organizational minutes, including the
adoption of by-laws in the form attached hereto as Exhibit
2.1.1(c). After its formation, ConAgra shall cause such
certificate of incorporation and by-laws not to be amended in any
respect prior to the Closing.
2.1.2. ConAgra shall cause S&C Holdco 2 to (i) incorporate S&C
Holdco 3, Inc. ("S&C Holdco 3") by filing with the Secretary of
State of the State of Delaware a certificate of incorporation in
the form attached hereto as Exhibit 2.1.2(a), (ii) cause S&C
Holdco 3's organizational minutes to be in the form attached
hereto as Exhibit 2.1.2(b), and (iii) cause S&C Holdco 3 to take
the actions set forth in such organizational minutes, including
the adoption of by-laws in the form attached hereto as Exhibit
2.1.2(c). After its formation, ConAgra shall cause such
certificate of incorporation and by-laws not to be amended in any
respect prior to the Closing.
2.1.3. ConAgra shall cause S&C Holdco 2 to (i) incorporate Swift
Cattle Holdco, Inc. ("Cattle Holdco") by filing with the
Secretary of State of the State of Delaware a certificate of
incorporation in the form attached hereto as Exhibit 2.1.3(a),
(ii) cause Cattle Holdco's organizational minutes to be in the
form attached hereto as Exhibit 2.1.3(b), and (iii) cause Cattle
Holdco to take the actions set forth in such organizational
minutes, including the adoption of by-laws in the form attached
hereto as Exhibit 2.1.3(c). After its formation, ConAgra shall
cause such certificate of incorporation and by-laws not to be
amended in any respect prior to the Closing.
2.1.4. ConAgra shall cause S&C Holdco 3 to (i) incorporate Swift
Meats Holding Company ("U.S. Acquisition Co.") by filing with the
Secretary of State of the State of Delaware a certificate of
incorporation in the form attached hereto as Exhibit 2.1.4(a),
(ii) cause U.S. Acquisition Co.'s organizational minutes to be in
the form attached hereto as Exhibit 2.1.4(b), and (iii) cause
U.S. Acquisition Co. to take the actions set forth in such
organizational minutes, including the adoption of by-laws in the
form attached hereto as Exhibit 2.1.4(c). After its formation,
ConAgra shall cause such certificate of incorporation and by-laws
not to be amended in any respect prior to the Closing.
2.1.5. To the extent necessary, ConAgra shall cause ConAgra Beef
Company, a Delaware corporation ("U.S. Beef Company"), Australia
Meat Holdings Pty. Limited, an Australian corporation ("Australia
Operating Company"), the other Acquired Companies and the
Acquiring Companies, as applicable, to divest, and cause each
Subsidiary thereof to divest, itself of all the issued and
outstanding capital stock of each of the companies and all the
assets set forth on Exhibit 2.1.5 (the "Divested Companies"), so
that following such divestiture no Acquiring Company or Acquired
Company shall, directly or indirectly, own, hold or have any
interest in any Divested Companies. The parties acknowledge that
such divestiture may be made, as applicable, by way of a
dividend.
2.1.6. Subject to Section 9.8 and the transfers contemplated by
Section 2.1.23(x), to the extent that Monfort Finance Company,
Inc., a Colorado corporation ("Cattleco"), is not the owner or
lessee thereof, and to the extent of all the rights, titles and
interests (including, without limitation, leasehold interests)
owned by ConAgra or another Subsidiary thereof, including,
without limitation, those rights, titles and interests held by
any Divested Company and U.S. Beef Company's interest in Northern
Colorado Feed LLC, a Colorado limited liability company
("Colorado Feed LLC") (subject to any purchase rights held by the
other member of Colorado Feed LLC pursuant to Colorado Feed LLC's
operating agreement), ConAgra shall cause all of the rights,
titles and interests of ConAgra or any of its Affiliates
(including, without limitation, the leasehold interests) to the
intangible or tangible assets relating to or used or intended for
use primarily in connection with the Feed Lot Business
(including, without limitation, all the assets that are to be
reflected in the Final Cattleco Closing Balance Sheet) to be
transferred and contributed to, and held solely by, Cattleco free
and clear of all Liens (other than permitted Liens described on
Schedule 7.23.1(a) and Schedule 7.23.1(b)) and other than (x)
those assets to be retained by ConAgra or its Affiliates and that
are used by ConAgra or its Affiliates to provide the services
contemplated by the Transition Services Agreement, Risk
Management Agreement, Cash Management Agreement and By-Products
Agreement and (y) those assets described on Schedule 7.15.1 or
Schedule 7.21.1 or used to provide the services described on
Schedule 7.15.1 or Schedule 7.21.1. Exhibit 2.1.6 sets forth a
description of the real property, whether owned or leased, that
will be transferred to Cattleco prior to the Closing Date. As
part of the foregoing transfer obligations, ConAgra shall cause
to be recorded in the real property records of each county in
which a parcel of owned real property of Cattleco (or which
should or will be owned by Cattleco) is located (a) certificates
of merger for properties held in the names of any
predecessors-in-interest to Cattleco which have been merged into
Cattleco, (b) certificates of name change for properties held in
Cattleco under a previous legal name, and (c) warranty deeds and
other instruments of conveyance for the vesting in Cattleco of
title to real properties held by Persons other than Cattleco or
predecessors-in-interest to Cattleco, and shall cause to be
assigned to Cattleco all such leasehold interests held by such
other Person. To the extent that any Licenses or Environmental
Permits relating to the Feed Lot Business are not already issued
in the name of Cattleco or a Subsidiary of Cattleco, ConAgra
shall cause such Licenses and Environmental Permits to be
transferred to or otherwise reissued in the name of Cattleco.
2.1.7. ConAgra shall cause all the issued and outstanding capital
stock of Cattleco to be owned and held directly by ConAgra.
2.1.8. ConAgra shall use its reasonable efforts to cause Swift &
Company, a Delaware corporation ("U.S. Pork Company"), to change
its corporate name to "Swift Pork Company" in its jurisdiction of
incorporation and each other jurisdiction in which it is
qualified to do business as set forth in Schedule 7.1.
2.1.9. ConAgra shall use its reasonable efforts to cause Holdco
to change its corporate name to "Swift & Company" in its
jurisdiction of incorporation and each other jurisdiction in
which it is qualified to do business as set forth on Schedule
7.1.
2.1.10. ConAgra shall use its reasonable efforts to cause U.S.
Beef Company to change its corporate name to "Swift Beef Company"
in its jurisdiction of incorporation and each other jurisdiction
in which it is qualified to do business as set forth on Schedule
7.1.
2.1.11. Subject to any required approval of the other member of
Better Beef LLC, which ConAgra shall use its reasonable efforts
to obtain, ConAgra shall use its reasonable efforts to cause
ConAgra Better Beef LLC, a Colorado limited liability company
("Better Beef LLC"), to change its entity name to "Swift Better
Beef, LLC" in its jurisdiction of formation and each other
jurisdiction in which it is qualified to do business as set forth
on Schedule 7.1.
2.1.12. [Intentionally Omitted]
2.1.13. ConAgra shall use its reasonable efforts to cause
Kabushiki Kaisha ConAgra Japan, a Japanese stock corporation, to
change its entity name to "Kabushiki Kaisha Swift Japan" in its
jurisdiction of formation and each other jurisdiction in which it
is qualified to do business as set forth on Schedule 7.1.
2.1.14. ConAgra shall use its reasonable efforts to cause ConAgra
Refrigerated Foods, S.A. de C.V., a corporation organized under
the laws of the United Mexican States, to change its entity name
to "Swift Refrigerated Foods, S.A. de C.V." in its jurisdiction
of formation and each other jurisdiction in which it is qualified
to do business as set forth on Schedule 7.1.
2.1.15. ConAgra shall cause U.S. Acquisition Co. to (i)
incorporate S&C Australia Holdco Pty. Ltd. ("Australia
Acquisition Co.") by filing with the Australian Securities &
Investments Commission ("ASIC") Form 201 in the form attached
hereto as Exhibit 2.1.15(a), (ii) cause Australia Acquisition
Co.'s constitution to be in the form attached hereto as Exhibit
2.1.15(b), (iii) cause all necessary consents of the directors
and the secretary of Australia Acquisition Co. to be duly
obtained and held, and (iv) cause those directors to adopt the
minutes in the form attached hereto as Exhibit 2.1.15(c). After
the formation of Australia Acquisition Co., ConAgra shall cause
Australia Acquisition Co.'s constitution not to be amended in any
respect prior to the Closing.
2.1.16. ConAgra shall cause U.S. Acquisition Co. to (i)
incorporate Swift Brands Company ("Brand Holdco") by filing with
the Secretary of State of the State of Delaware a certificate of
incorporation in the form attached hereto as Exhibit 2.1.16(a),
(ii) cause Brand Holdco's organizational minutes to be in the
form attached hereto as Exhibit 2.1.16(b), and (iii) cause Brand
Holdco to take the action set forth in such organization minutes,
including the adoption of by-laws in the form attached hereto as
Exhibit 2.1.16(c). After its formation, ConAgra shall not permit
such certificate of incorporation and by-laws to be amended in
any respect prior to the Closing.
2.1.17. Subject to Section 9.8 and the transfers contemplated by
Section 2.1.23(x), to the extent that an Acquired Company is not
the owner or lessee thereof and to the extent of all the rights,
titles and interests (including, without limitation, leasehold
interests) owned by ConAgra or an Affiliate thereof, (taking into
account such assets to be included and excluded, as the case may
be, as set forth on Exhibit 2.1.17) ConAgra shall cause all of
the rights, titles and interests of ConAgra or any of its
Affiliates (including, without limitation, the leasehold
interests) to the intangible and tangible assets relating to or
used or intended for use primarily in connection with the
Processing Business (including, without limitation, all of the
assets that are to be reflected in the Final Processing Closing
Balance Sheet) to be transferred and contributed to, and held
solely by, U.S. Beef Company or Australia Operating Company, as
applicable, free and clear of all Liens (other than permitted
Liens described on Schedule 7.23.1(a) and Schedule 7.23.1(b)) and
other than (x) those assets to be retained by ConAgra or its
Affiliates and that are used by ConAgra or its Affiliates to
provide the services contemplated by the Transition Services
Agreement, Risk Management Agreement, Cash Management Agreement
and By-Products Agreement and (y) those assets described on
Exhibit 2.1.5, Schedule 7.15.1 or Schedule 7.21.1 or used to
provided the services described on Schedule 7.15.1 or Schedule
7.21.1. Exhibit 2.1.17 sets forth a description of the real
property, whether owned or leased, that will be transferred to
U.S. Beef Company prior to the Closing Date. As a part of the
foregoing transfer obligations, ConAgra shall cause to be
recorded in the real property records of each county in which a
parcel of owned real property of an Acquired Company (or which
should or will be owned by an Acquired Company) is located (a)
certificates of merger for properties held in the names of
predecessors-in-interest to any Acquired Company which have been
merged into an Acquired Company (e.g., E. A. Miller, Inc. and
Mid-West By-Products, Inc.), (b) certificates of name change for
properties held in Acquired Companies under a previous legal name
(e.g., Monfort, Inc. n/k/a ConAgra Beef Company), and (c)
warranty deeds and other instruments of conveyance for the
vesting in Acquired Companies of title to real properties held by
other Persons that are not Acquired Companies or predecessors in
interest to Acquired Companies (e.g., ConAgra, Inc., ConAgra
Foods, Inc., ConAgra Poultry Company, CAG Subsidiary, Inc., and
ConAgra Corporation), and shall cause to be assigned to the
Acquired Companies all such leasehold interests held by such
other Persons. To the extent that any Licenses or Environmental
Permits relating to the Processing Business (other than those
relating to Colorado Feed LLC or Better Beef LLC) are not already
issued in the name of an Acquired Company, ConAgra shall cause
such Licenses and Environmental Permits to be transferred or
otherwise reissued in the name of the appropriate Acquired
Company.
2.1.18. Prior to the Closing, ConAgra shall pay and discharge in
full or cause the Acquired Companies to pay and discharge in full
(x) all indebtedness for borrowed funds and purchase money
indebtedness owed to a non-Affiliate of ConAgra and incurred by
any Acquired Company or for which any Acquired Company has
otherwise become liable or responsible, including, without
limitation, the indebtedness set forth on Exhibit 2.1.18, and (y)
all indebtedness for borrowed funds and purchase money
indebtedness owed to a non-Affiliate of ConAgra and incurred by
the Acquired Company or for which any Acquired Company has become
liable or responsible, pursuant to Acquisition LP's consent,
after the date of this Agreement and prior to the Closing. As of
Closing, ConAgra shall settle and treat as equity or cause to be
settled and treated as equity all intercompany investments and
accounts of the Acquired Companies, as provided in Exhibit 5.1.1,
other than loans made pursuant to the Cattleco Loan Agreement. In
connection with the above payments and discharges ConAgra shall
obtain a release of all Liens (other than Liens relating to the
Cattleco Revolver), guarantees, indemnities, bonding
arrangements, letters of credit, letters of comfort and similar
financial arrangements under which one or more of the Acquired
Companies is obligated relating to indebtedness for borrowed
funds and purchase money indebtedness. ConAgra shall release or
cause to be released (i) all Liens held by ConAgra or any
Subsidiary thereof encumbering the assets of any Acquired Company
and (ii) any guarantees by any Acquired Company of indebtedness
or other obligations of ConAgra or any Subsidiary of ConAgra
other than any guarantees arising under the Deed of Cross
Guarantee referred to in Section 2.1.22 below. The terms of this
Section 2.1.18 shall not apply in respect to Colorado Feed LLC or
Better Beef LLC.
2.1.19. As soon as reasonably practicable and in any event prior
to the Closing, Brand Holdco shall file in the United States,
Korea, Taiwan, China and Mexico, and Australia Meat Holdings Pty.
Ltd. shall file in Australia three intent-to-use trademark
applications for the terms "Swift," "Swift Premium," and "Swift &
Company" for use with "fresh, frozen, ground and/or processed
beef, pork and lamb, meat, meat cuts, and organs."
2.1.20. [Intentionally Omitted]
2.1.21. ConAgra shall cause ConAgra Holdings (Australia) Pty.
Ltd., an Australian corporation ("Australia Holdco"), Burcher
Pty. Limited, an Australian corporation, and Australia Operating
Company to comply in a timely manner with all procedures set
forth in Section 260B of the Australian Corporations Act so that
any financial assistance contemplated by Section 2.2.8 can be
provided at the Closing.
2.1.22. ConAgra shall cause each of Australia Operating Company,
Burcher Pty. Limited and ConAgra Trade Group Pty. Ltd. (formerly
DR Johnston Group Pty. Ltd.) to: (i) enter into Revocation Deeds
which revoke the Deed of Cross Guarantee dated April 26, 1996,
among Australia Operating Company, ConAgra Trade Group Pty. Ltd.
and Burcher Pty. Limited (the "Deed of Cross Guarantee"); (ii)
lodge copies of such Revocation Deeds with the ASIC in accordance
with ASIC Class Order CO 98/1418; and (iii) give notice to their
creditors of the Revocation Deeds by way of public advertisements
in accordance with ASIC Class Order CO 98/1418.
2.1.23. To the extent that an Acquired Company is not currently
the owner thereof and ConAgra or an Affiliate thereof is the
owner, ConAgra shall (x) with respect to the United States and
Australia, transfer or cause to be transferred all of ConAgra's
and its Affiliates' right, title, and interest in and to the
patents, trademarks, service marks, tradenames and domain names
set forth on Exhibit 2.1.23(a) to Brand Holdco free and clear of
all Liens using the form assignment attached hereto as Exhibit
2.1.23(b), or, with respect to the domain names, the transfer
form provided by the appropriate domain name registrar, or, with
respect to the patents, the form assignment attached hereto as
Exhibit 2.1.23(c), and (y) with respect to all other countries,
execute and deliver or cause to be executed and delivered to
Brand Holdco assignments in the form attached hereto as Exhibit
2.1.23(b) (for the trademarks, service marks and tradenames) or
Exhibit 2.1.23(c) (for the patents) that have been executed by
the owner of the patents, trademarks, service marks, tradenames
and domain names set forth on Exhibit 2.1.23(a) for the purpose
of transferring all of ConAgra's and its Affiliates' right,
title, and interest therein to Brand Holdco free and clear of all
Liens, or, for the domain names, the transfer form provided by
the appropriate domain name registrar.
2.1.24. ConAgra shall transfer or cause to be transferred the
title and all rights to the Lear 35 Jet described on Exhibit
2.1.24 to Monfort International Sales Corp. free and clear of all
Liens.
2.1.25. To the extent that an Acquired Company is using any trade
dress in connection with the sale of any fresh meat products, as
of the date of this Agreement, the Acquired Company shall have
the sole and exclusive right to use such trade dress in
connection with the sale of fresh meat products. To the extent
that ConAgra or any of its Affiliates (other than an Acquired
Company) are using any trade dress in connection with the sale of
any processed meat products, as of the date of this Agreement,
then ConAgra and such Affiliates shall have the sole and
exclusive right to use such trade dress in connection with the
sale of the processed meat products. The parties shall and shall
cause their Affiliates to execute such assignments or consents as
may be reasonably required to effectuate the intent of this
Section 2.1.25, provided, however, that any such assignments
shall be made on an "as is" basis. The provisions of this Section
2.1.25 shall not apply to the Brown `N Serve Properties (as
defined in the Swift Transition License Agreement) which shall
remain the sole and exclusive property of ConAgra. Holdco
acknowledges ConAgra's sole ownership of the Brown `N Serve
Properties and agrees that Holdco and its Affiliates shall be
bound by the terms and conditions set forth in Section 10 of the
Swift Transition License Agreement.
2.1.26. Contemporaneously with the assignment of trademarks
contemplated under Section 2.1.23, to the extent that such
license agreement may be assignable under applicable Law, ConAgra
shall cause Swift-Eckrich, Inc. to assign to Brand Holdco, and
Brand Holdco shall accept, all rights and obligations arising
under the trademark license agreements identified in Exhibit
2.1.26.
2.1.27. ConAgra shall cause Swift-Eckrich, Inc. to cancel the
trademark registrations for "Swift's Jewel & Design"
(registration number 054402) and "Swift's La Primera & Design"
(registration number 2241) in Panama. Swift-Eckrich, Inc. shall
retain all rights in the trademarks "Jewel" or "La Primera."
Swift-Eckrich, Inc. may file new applications to register "Jewel"
and "La Primera," but shall not file any applications to register
"Swift's" or any other derivation of "Swift."
2.1.28. ConAgra shall cause Brand Holdco to file a new trademark
application for the trademark "Miller's Blue Ribbon Beef" in the
United States Patent and Trademark Office.
2.1.29. Holdco agrees that, except as expressly set forth herein,
ConAgra and its Affiliates shall retain all right, title and
interest in all "Armour" and "Eckrich" derivative trademarks,
service marks, trade names, domain names and other business
designations, including all associated "E" logos. ConAgra agrees
that, except as expressly set forth herein, ConAgra shall assign,
or cause its Affiliates to assign, to Brand Holdco, all of their
right, title and interest in all "Swift" derivative trademarks,
service marks, trade names, domain names and other business
designations. Nothing contained herein shall be construed as
assigning, conveying or otherwise transferring to Holdco or its
Affiliates (or Brand Holdco) any right, title or interest in the
"Armour" or "Eckrich" portions of the trademarks, service marks,
trade names or business designations "Swift-Eckrich," "Armour
Swift-Eckrich" or "Swift-Eckrich, Inc.," nor shall anything
contained herein be construed as retaining to ConAgra or its
Affiliates any right, title or interest in the "Swift" portion of
the trademarks, service marks, trade names or business
designations "Swift-Eckrich," "Armour Swift-Eckrich" or
"Swift-Eckrich, Inc." Swift-Eckrich, Inc. may continue to use the
business designations "Swift-Eckrich," "Armour Swift-Eckrich" and
"Swift-Eckrich, Inc.," and any derivation thereof, pursuant to
the terms and conditions of the Swift Transition License
Agreement. Upon termination of the Swift Transition License
Agreement, ConAgra shall cause Swift-Eckrich, Inc. to discontinue
all use of the trademarks, service marks, trade names and
business designations "Swift-Eckrich," "Armour Swift-Eckrich" and
"Swift-Eckrich, Inc." but may thereafter use any other "Armour"
or "Eckrich" derivative trademark, service mark, trade name,
domain name and business designation that does not incorporate
the word "Swift."
2.2. Payment of Consideration. ConAgra, Holdco and Acquisition LP
hereby covenant and agree to take, or cause to be taken, the
following actions at the Closing, chronologically in the order
set forth below:
2.2.1. Acquisition LP shall cause equity funding from (i) Hicks,
Muse, Tate & Furst Equity Fund V, L.P. ("Fund V") in the amount
of One Hundred Forty-Five Million United States Dollars
($145,000,000) pursuant to the Fund V Commitment Letter and (ii)
Gillco in the amount of Fifteen Million United States Dollars
($15,000,000) pursuant to the Gillco Subscription Agreement
(collectively, the "Acquisition LP Funding Amount").
2.2.2. Acquisition LP shall purchase from ConAgra and ConAgra
shall sell and deliver to Acquisition LP, one hundred
seventy-five million (175,000,000) shares (the "Acquisition LP
Holdco Stock") of common stock, $0.00001 par value, of Holdco
(the "Holdco Common Stock"), free and clear of all Liens,
constituting, as of the Closing Date, 53.846% (the "Acquisition
LP Percentage Interest") of the issued and outstanding shares of
Holdco Common Stock, for an aggregate cash purchase price of One
Hundred Sixty Million United States Dollars ($160,000,000).
2.2.3. ConAgra shall cause Cattleco to establish additional
reserves and/or asset writedowns not to exceed Eighteen Million
United States Dollars ($18,000,000). ConAgra shall, and shall
cause Cattleco to, enter into a revolving loan agreement in the
form attached hereto as Exhibit 2.2.3 ("Cattleco Loan Agreement")
pursuant to which ConAgra shall make an initial loan to Cattleco
and ConAgra shall cause Cattleco to borrow, as of the Closing, up
to Two Hundred and Sixty Million United States Dollars
($260,000,000) (the "Cattleco Loan Amount") as an initial advance
under a revolving line of credit in an aggregate amount of Three
Hundred Fifty Million United States Dollars ($350,000,000) (the
"Cattleco Revolver"). Loans made pursuant to the Cattleco Loan
Agreement shall be secured by a first perfected security interest
in all Cattleco assets and shall be for an initial term of
twenty-four (24) months. ConAgra shall cause Cattleco to execute
and deliver to ConAgra the deeds of trust, security agreement,
cash management agreement (the "Cash Management Agreement") and
documents contemplated by the Cattleco Loan Agreement.
2.2.4. ConAgra shall cause Cattleco to pay ConAgra, in repayment
of preexisting intercompany indebtedness, an amount equal to the
Cattleco Loan Amount.
2.2.5. U.S. Beef Company shall purchase from ConAgra and ConAgra
shall sell and deliver or cause to be sold and delivered to U.S.
Beef Company one (1) share of capital stock of ConAgra
Refrigerated Foods, S.A. de C.V. (the "ConAgra Minority Mexican
Stock Interest"), free and clear of all Liens.
2.2.6. The parties shall cause Holdco to purchase from ConAgra or
its Affiliate (other than an Acquired Company), and ConAgra shall
sell and deliver or cause its Affiliate (other than an Acquired
Company) to sell and deliver to Holdco, all the issued and
outstanding shares of capital stock of U.S. Beef Company (the
"U.S. Beef Company Stock") and U.S. Pork Company (the "U.S. Pork
Company Stock") free and clear of all Liens. The parties shall
cause Holdco to purchase from ConAgra or its Affiliate (other
than an Acquired Company), and ConAgra shall sell and deliver or
cause its Affiliate (other than an Acquired Company) to sell and
deliver to Holdco, all the issued and outstanding shares of
capital stock of Kabushiki Kaisha ConAgra Japan (the "KK Japan
Stock"), free and clear of all Liens. The parties shall cause
Holdco to purchase from ConAgra or its Affiliate (other than an
Acquired Company), and ConAgra shall sell and deliver or cause
its Affiliate (other than an Acquired Company) to sell and
deliver to Holdco, forty-nine thousand nine hundred ninety-nine
(49,999) shares of capital stock of ConAgra Refrigerated Foods,
S.A. de C.V., free and clear of all Liens, which, together with
the ConAgra Minority Mexican Stock Interest shall constitute all
the issued and outstanding shares of capital stock of ConAgra
Refrigerated Foods, S.A. de C.V. (collectively, the "ConAgra
Mexican Stock"). The U.S. Beef Company Stock, U.S. Pork Company
Stock, KK Japan Stock and the ConAgra Mexican Stock shall be
collectively referred to as the "U.S. Processing Company Stock."
In connection with such purchases and issuances, the parties
shall cause the following actions to be taken:
(i) Acquisition LP shall assign to U.S. Acquisition Co. and
Australia Acquisition Co. its rights under the Senior Bank
Commitment Letter and the related Fee Letter, U.S.
Acquisition Co. and Australia Acquisition Co. shall assume
all the obligations of Acquisition LP thereunder and
Acquisition LP shall be released from all obligations
thereunder;
(ii) The parties shall cause U.S. Acquisition Co. to enter into
and request funding in the amount of One Hundred Forty-One
Million United States Dollars ($141,000,000) (as such amount
may be increased or decreased, as appropriate, to reflect
any increase or decrease (w) in the amount of indebtedness
incurred as contemplated by clause (iv) below, (x) in the
amount of fees and expenses to be paid and reimbursed
pursuant to Section 15.3 as compared to Sixty Million United
States Dollars ($60,000,000), (y) in the amount of the
Estimated Combined Processing Company Stockholders Net
Investment (as reduced for the Estimated Australian
Stockholder Net Investment) as compared to the Initial
Combined Processing Company Stockholders Net Investment (as
reduced for the Initial Australian Stockholder Net
Investment), and (z) in the amount of indebtedness incurred
as contemplated by Section 2.2.8(i) as compared to One
Hundred Fifty Million United States Dollars ($150,000,000))
under the loan agreement contemplated by the Senior Bank
Commitment Letter;
(iii)Acquisition LP shall assign to U.S. Acquisition Co. its
rights under (x) the Bridge Commitment Letter and the
related Fee Letter, and (y) the Engagement Letter, and U.S.
Acquisition Co. shall assume all the obligations of
Acquisition LP thereunder and Acquisition LP shall be
released from all obligations thereunder;
(iv) The parties shall cause U.S. Acquisition Co. to either (x)
consummate the sale of debt securities in the amount of Four
Hundred Million United States Dollars ($400,000,000) as
contemplated by the Engagement Letter (as such amount may be
adjusted, as appropriate, as contemplated by the Fee Letter)
or (y) to the extent that the debt securities cannot be sold
in such amount, request funding in such amount under the
bridge loan facility contemplated by the Bridge Commitment
Letter;
(v) The parties shall cause U.S. Acquisition Co. and S&C Holdco
3 to enter into the promissory note in the form attached
hereto as Exhibit 2.2.6(v) (the "S&C Holdco 3 Acquisition
Note") and pursuant thereto the parties shall cause U.S.
Acquisition Co. to loan and S&C Holdco 3 to borrow, from the
funds that U.S. Acquisition Co. received pursuant to clause
(ii) and (iv) above, an amount equal to Four Hundred
Forty-One Million United States Dollars ($441,000,000) (as
such amount may be increased or decreased, as appropriate,
to reflect any increase or decrease (x) in the amount of the
Estimated Combined Processing Company Stockholders Net
Investment (as reduced for the Estimated Australian
Stockholder Net Investment) as compared to the Initial
Combined Processing Company Stockholders Net Investment (as
reduced for the Initial Australian Stockholder Net
Investment) and (y) in the amount of fees and expenses to be
paid and reimbursed pursuant to Section 15.3 as compared to
Sixty Million United States Dollars ($60,000,000));
(vi) The parties shall cause S&C Holdco 3 and S&C Holdco 2 to
enter into the promissory note in the form attached hereto
as Exhibit 2.2.6(vi) (the "S&C Holdco 2 Acquisition Note")
and pursuant thereto the parties shall cause S&C Holdco 3 to
loan and S&C Holdco 2 to borrow the funds that S&C Holdco 3
received pursuant to the S&C Holdco 3 Acquisition Note;
(vii)The parties shall cause S&C Holdco 2 and Holdco to enter
into the promissory note in the form attached hereto as
Exhibit 2.2.6(vii) (the "Holdco Acquisition Note") and
pursuant thereto the parties shall cause S&C Holdco 2 to
loan and Holdco to borrow the funds that S&C Holdco 2
received pursuant to the S&C Holdco 2 Acquisition Note;
(viii) In consideration of the U.S. Processing Company Stock, the
parties shall cause Holdco to pay to ConAgra or its
designees Three Hundred Eighty-One Million United States
Dollars ($381,000,000) (as such amount may be increased or
decreased, as appropriate, to reflect any increase or
decrease in the amount of the Estimated Combined Processing
Company Stockholders Net Investment (as reduced for the
Estimated Australian Stockholder Net Investment) as compared
to the Initial Combined Processing Company Stockholders Net
Investment (as reduced for the Initial Australian
Stockholder Net Investment)) of the funds received pursuant
to clause (vii) above;
(ix) In consideration of the U.S. Processing Company Stock, the
parties shall cause Holdco to execute and deliver to ConAgra
a promissory note in the principal amount of One Hundred
Fifty Million United States Dollars ($150,000,000) in the
form attached hereto as Exhibit 2.2.6(ix) (the "Promissory
Note");
(x) The parties shall cause (A) Holdco to transfer to S&C Holdco
2 all of the U.S. Processing Company Stock, (B) S&C Holdco 2
to execute and deliver to ConAgra an assumption agreement in
the form attached as Exhibit 2.2.6(x) pursuant to which S&C
Holdco 2 shall assume all obligations and liabilities of
Holdco under the Promissory Note and (C) S&C Holdco 2 to
accept such transfer in full repayment of the Holdco
Acquisition Note, with such transfer being treated as a
contribution to the capital of S&C Holdco 2 to the extent
that the value of the U.S. Processing Company Stock exceeds
the outstanding indebtedness under the Holdco Acquisition
Note;
(xi) ConAgra shall execute and deliver to Holdco a release in the
form attached hereto as Exhibit 2.2.6(x) releasing Holdco
from all obligations and liabilities of Holdco under the
Promissory Note;
(xii)The parties shall cause (A) S&C Holdco 2 to transfer to S&C
Holdco 3 all of the U.S. Processing Company Stock that it
received pursuant to clause (x) above, and (B) S&C Holdco 3
to accept such transfer in full repayment of the S&C Holdco
2 Acquisition Note, with such transfer being treated as a
contribution to the capital of S&C Holdco 3 to the extent
that the value of the U.S. Processing Company Stock exceeds
the outstanding indebtedness under the S&C Holdco 2
Acquisition Note; and
(xiii) The parties shall cause (A) S&C Holdco 3 to transfer to
U.S. Acquisition Co. all of the U.S. Processing Company
Stock that it received pursuant to clause (xii) above, and
(B) U.S. Acquisition Co. to accept such transfer in full
repayment of the S&C Holdco 3 Acquisition Note, with such
transfer being treated as a contribution to the capital of
U.S. Acquisition Co. to the extent that the value of the
U.S. Processing Company Stock exceeds the outstanding
indebtedness under the S&C Holdco 3 Acquisition Note.
2.2.7. The parties shall cause Cattle Holdco to purchase from ConAgra,
and ConAgra shall sell and deliver to Cattle Holdco, all the
issued and outstanding shares of capital stock of Cattleco (the
"Cattleco Stock") free and clear of all Liens for an initial
purchase price of Thirty Million United States Dollars
($30,000,000) (the "Cattleco Stock Purchase Price"). As
additional consideration, if, and only if, the HMC Group (as
defined in the Stockholders Agreement) exercises the HMC Call
Option (as defined in the Stockholders Agreement) prior to the
complete Divestiture of the Feed Lot Business, Cattleco shall pay
to ConAgra an amount equal to the "Additional Consideration." The
Additional Consideration shall be an amount equal to the product
of (A) the aggregate amount of consolidated net income of Cattle
Holdco and its subsidiary as calculated from the Closing Date
through the end of the last calendar month immediately prior to
the date on which the closing of the HMC Call Option occurs
(minus the value of any cash dividends paid or declared by Cattle
Holdco prior to the closing date of the HMC Call Option)
multiplied by (B) the CAGCO Ownership Percentage (as defined in
the Stockholders Agreement). The parties shall cause Cattleco
Holdco to pay to ConAgra the Cattleco Stock Purchase Price by
delivering to ConAgra a promissory note in the stated aggregate
principal amount of Eighty Million United States Dollars
($80,000,000) in the form attached to the Cattleco Loan Agreement
(the "Cattleco Note") of which $30,000,000 million is deemed
advanced as the initial purchase price as of the date of
delivery. If any Additional Consideration is owed such amount
shall be deemed to be an additional advance under the Cattleco
Note. The initial stated principal amount of the Cattleco Note
may be increased as necessary to reflect the Additional
Consideration, all as otherwise described in Section 2(b)(1) of
the Cattleco Loan Agreement.
2.2.8. The parties shall cause Australia Acquisition Co. to purchase
from Australia Holdco, and ConAgra shall cause Australia Holdco
to sell and deliver to Australia Acquisition Co., all the issued
and outstanding shares of capital stock of Australia Operating
Company (the "Australia Operating Company Stock" and collectively
with the U.S. Processing Company Stock, the "Processing Company
Stock"), free and clear of all Liens. In connection with such
purchase, the parties shall cause the following actions to be
taken:
(i) The parties shall cause Australia Acquisition Co. to enter
into and request funding in the amount of One Hundred Fifty
Million United States Dollars ($150,000,000) (or such
greater or lesser amount as may be necessary and that may be
available for borrowing) under the loan agreement
contemplated by the Senior Bank Commitment Letter, provided
that the amount to be borrowed under this clause (i) shall
not exceed seventy-five percent (75%) of the amount to be
paid pursuant to clause (iii) below.
(ii) From the proceeds received pursuant to clauses (ii) and (iv)
of Section 2.2.6 above, the parties shall cause U.S.
Acquisition Co., (A) to loan to Australia Acquisition Co.
and the parties shall cause Australia Acquisition Co. to
borrow, pursuant to the promissory note in the form attached
hereto as Exhibit 2.2.8, an amount equal to the amount to be
paid pursuant to clause (iii) below minus the sum of (x) the
amount borrowed pursuant to clause (i) above and (y) the
amount to be contributed pursuant to clause (B) of this
(ii), and (B) to contribute to the capital of Australia
Acquisition Co. an amount equal to twenty-five percent (25%)
of the amount to be paid pursuant to clause (iii) below.
(iii)In consideration of the Australia Operating Company Stock,
the parties shall cause Australia Acquisition Co. to pay to
Australia Holdco Two Hundred Fifty Million United States
Dollars ($250,000,000) (as such amount may be increased or
decreased, as appropriate, to reflect any increase or
decrease in the amount of the Estimated Australian
Stockholder Net Investment as compared to the Initial
Australian Stockholder Net Investment) from the proceeds
received from clauses (i) and (ii) above.
3. Aggregate Consideration.
3.1. Processing Company Purchase Price.
3.1.1. For purposes of the transactions contemplated herein, the
aggregate consideration to be received by ConAgra and Australia
Holdco under Article 2 in respect of the Acquired Companies
(other than Cattleco) shall be an amount equal to the Combined
Processing Company Stockholders Net Investment (as defined in
Section 5.1.7) plus Eighteen Million United States Dollars
($18,000,000) (the "Aggregate Consideration"). The Aggregate
Consideration shall be payable as provided in Articles 2 and 3
and shall be subject to adjustment as set forth in Article 5. For
purposes of determining payment of the Aggregate Consideration
and the other provisions of this Agreement, the aggregate value
of the common stock of Holdco shall be deemed to equal Three
Hundred Twenty-Five Million United States Dollars ($325,000,000)
out of which the post-Closing ownership interest of ConAgra in
the common stock of Holdco shall have a deemed value of One
Hundred Fifty Million United States Dollars ($150,000,000). For
purposes of this Agreement (including clause (iii) of Section
2.2.8), an amount of the Aggregate Consideration shall be
allocated to the Australian Operating Common Stock equal to the
product of (x) the Aggregate Consideration minus Eighteen Million
United States Dollars ($18,000,000) times (y) a fraction (1) the
numerator of which is the Australian Stockholder Net Investment
as set forth in the Final Australian Closing Balance Sheet and
(2) the denominator of which is the Combined Processing Company
Stockholders Net Investment as set forth in the Final Processing
Closing Balance Sheet. As of the date of this Agreement, the
parties estimate (x) that the Combined Processing Company
Stockholders Net Investment (which includes the Initial
Australian Stockholder Net Investment) is approximately One
Billion Seventy-Three Million United States Dollars
($1,073,000,000) (the "Initial Combined Processing Company
Stockholders Net Investment") and (y) the Australian Stockholder
Net Investment is approximately Two Hundred Fifty Million United
States Dollars ($250,000,000) (the "Initial Australian
Stockholder Net Investment").
3.1.2. On the fourth business day prior to the Closing Date, ConAgra
shall prepare and deliver, in accordance with the terms of this
Section 3.1.2, an estimated combined balance sheet for the
Acquired Companies (excluding Cattleco) (the "Estimated
Processing Company Closing Balance Sheet"), together with a
separate estimated combined balance sheet for Australia Operating
Company (the "Estimated Australian Closing Balance Sheet"), in
each case estimated as of 12:01 a.m. New York City time on the
Closing Date. ConAgra shall prepare the Estimated Processing
Company Closing Balance Sheet and the Estimated Australian
Closing Balance Sheet in accordance with GAAP and the
methodology, procedures and manner of presentation set forth in
Section 5.1.1 and Exhibit 5.1.1. Acquisition LP and its
representatives shall have the right to consult with ConAgra in
connection with the preparation of the Estimated Processing
Company Closing Balance Sheet and such Estimated Australian
Closing Balance Sheet, but shall not have the right to approve
such Estimated Processing Company Closing Balance Sheet and
Estimated Australian Closing Balance Sheet. The parties
acknowledge and agree that the amounts set forth in Sections
2.2.6(ii), 2.2.6(v), 2.2.6(viii), 2.2.8(i), 2.2.8(ii) and
2.2.8(iii) have been calculated based on the Initial Combined
Processing Company Stockholders Net Investment and the Initial
Australian Stockholder Net Investment. For purposes of borrowings
and payments made at the Closing pursuant to such Sections, the
estimated Combined Processing Company Stockholders Net Investment
as reflected in the Estimated Processing Company Closing Balance
Sheet (the "Estimated Combined Processing Company Stockholders
Net Investment") and the estimated Australian Stockholder Net
Investment as reflected in the Estimated Australian Closing
Balance Sheet (the "Estimated Australian Stockholder Net
Investment"), shall be used as provided therein.
3.2. Form of Cash Payments. All payments pursuant to Article 2 shall
be made by wire transfer of immediately available funds to the
account designated by the receiving party.
3.3. Purchase Price Allocation. Within thirty (30) days after the
later of (i) the determination of the Processing Company
Settlement Payment pursuant to Section 5.1.4 and (ii) the
determination of the Cattleco Settlement Payment pursuant to
Section 5.1.5, Deloitte shall prepare and provide ConAgra and
Holdco with an allocation of the purchase price (pursuant to the
principles of Exhibit 3.3) with respect to the Processing Company
Stock, the Cattleco Stock and the other assets acquired by Holdco
or its Subsidiaries pursuant to this Agreement. The parties
hereto agree to use the allocation provided by Deloitte
consistent with and pursuant to this Section 3.3 for their Tax
reporting purposes. The parties hereto agree that the transfers
of the Processing Company Stock and the Cattleco Stock shall be
reported as taxable sales or exchanges of such stock (and not of
such companies' underlying assets) for Income Tax purposes. Any
other assets (other than cash or cash equivalents) transferred to
Holdco or a Subsidiary of Holdco pursuant to Sections 2.1.6,
2.1.17, 2.1.23 or 2.1.24 shall be reported as taxable sales or
exchanges of such assets for Income Tax purposes.
4. Closing.
4.1. Closing. Subject to the terms and conditions contained in this
Agreement, the closing of the transactions contemplated hereby
(the "Closing") will occur at the offices of Weil, Gotshal &
Manges LLP, 767 Fifth Avenue, New York, New York 10153, on the
earlier of (i) the Termination Date, and (ii) the second business
day after the conditions set forth in Section 10 (other than
those to be fulfilled at the Closing) have been satisfied or at
such other date and place as the parties hereto may mutually
agree (the date on which the Closing actually occurs being
referred to herein as the "Closing Date"). The Closing shall be
effective as of the time on the Closing Date that all actions
contemplated to occur at the Closing pursuant to this Agreement
have been completed (the "Effective Time").
4.1.1. Obligations at the Closing. In addition to the actions
contemplated by Article 2, at the Closing the parties shall cause
the following actions to be taken:
(i) Indemnification and Release Agreement. Holdco shall execute
and deliver, and cause each Acquired Company (other than
Colorado Feed LLC and Better Beef LLC) and Acquiring Company
to execute and deliver, to ConAgra the indemnification and
release agreement, in the form attached hereto as Exhibit
4.1.1(i) (the "Indemnification and Release Agreement"),
pursuant to which each of the Acquired Companies (other than
Colorado Feed LLC and Better Beef LLC) and Acquiring
Companies agrees to be bound, jointly and severally, by each
of the covenants with respect to periods following the
Closing and indemnification obligations of Holdco set forth
in this Agreement and to release ConAgra from certain
environmental claims as set forth therein.
(ii) Preferred Supplier Agreement. ConAgra shall execute and
deliver and Holdco shall execute and deliver a preferred
supplier agreement in the form attached hereto as Exhibit
4.1.1(ii) pursuant to which the Processing Companies (other
than Colorado Feed LLC and Better Beef LLC) agree to supply
certain products to ConAgra and its Subsidiaries, and
ConAgra and its Subsidiaries agree to purchase certain
products, at market prices on a delivered basis and terms
(the "Preferred Supplier Agreement").
(iii)Stockholders Agreement. ConAgra, Acquisition LP and Holdco
shall execute and deliver a stockholders agreement in the
attached hereto as Exhibit 4.1.1(iii) pursuant to which the
parties agree to certain governance provisions including,
without limitation, board representation, share transfer
restrictions, registration rights and other stockholder
rights (the "Stockholders Agreement"). Pursuant to the
Stockholders Agreement, Acquisition LP shall have certain
rights to acquire ConAgra's equity interests in Holdco, and
ConAgra shall have the right to participate in certain
transfers by Acquisition LP of its equity interest. In
addition, ConAgra shall use its reasonable efforts for at
least eighteen (18) months following Closing to solicit
purchasers for Cattleco operations.
(iv) Transition Services Agreement. ConAgra shall execute and
deliver and Holdco shall cause the Acquired Companies (other
than Colorado Feed LLC and Better Beef LLC) to execute and
deliver a transition services agreement in the form attached
hereto as Exhibit 4.1.1(iv) (the "Transition Services
Agreement") pursuant to which (i) ConAgra agrees to provide
certain transition services to the Acquired Companies (other
than Colorado Feed LLC and Better Beef LLC) following
Closing, (ii) U.S. Beef Company agrees to provide certain
transition services to ConAgra following Closing and (iii)
ConAgra agrees to provide certain transition services to
Cattleco following the Closing.
(v) Armour Transition Trademark License Agreement. ConAgra shall
or shall cause its appropriate Affiliates to execute and
deliver and Holdco shall cause the appropriate Acquired
Companies to execute and deliver a transition trademark
license agreement in the form attached hereto as Exhibit
4.1.1(v) (the "Armour Transition License Agreement")
pursuant to which ConAgra or such Affiliates agree to
license to the Acquired Companies (other than Colorado Feed
LLC and Better Beef LLC) the "Armour" and "ConAgra"
trademarks and business names on a transition basis.
(vi) Swift Transition Trademark License Agreement. Holdco shall
cause the appropriate Acquired Company (other than Colorado
Feed LLC and Better Beef LLC) to execute and deliver and
ConAgra shall execute and deliver a transition trademark
license agreement in the form attached hereto as Exhibit
4.1.1(vi) (the "Swift Transition License Agreement")
pursuant to which such Acquired Company agrees to license to
ConAgra the "Swift" and "Swift Premium" trademarks on a
transition basis.
(vii)Hangar License Agreement. U.S. Beef Company and ConAgra
shall execute and deliver a Hangar License Agreement in the
form attached hereto as Exhibit 4.1.1(vii) (the "Hangar
License Agreement"), relating to the joint use of certain
hangar space located in Greeley, Colorado.
(viii) Director Appointment. The parties acknowledge that Holdco
shall have a seven (7) member board of directors, five (5)
of whom shall be designated by Acquisition LP and two (2) of
whom shall be designated by ConAgra. At Closing, ConAgra and
Acquisition LP shall take all action necessary to establish
such board, and designate such members.
(ix) Risk Management Agreement. ConAgra shall execute and deliver
and Holdco shall cause Cattleco to execute and deliver the
Risk Management Agreement in the form attached hereto as
Exhibit 4.1.1(ix) (the "Risk Management Agreement") pursuant
to which ConAgra shall provide certain risk management
services to Cattleco, and Cattleco shall undertake certain
risk management activities.
(x) Cattle Supply Agreement. Holdco shall cause Cattleco and
U.S. Beef Company to execute and deliver the Cattle Supply
Agreement in the form attached hereto as Exhibit 4.1.1(x)
(the "Cattle Supply Agreement") pursuant to which U.S. Beef
Company agrees to purchase, and Cattleco agrees to supply,
live cattle.
(xi) Monitoring and Oversight Agreement. Holdco, the other
Acquiring Companies and certain Acquired Companies shall
execute and deliver to Hicks, Muse & Co. Partners, L.P. a
monitoring and oversight agreement in the form attached
hereto as Exhibit 4.1.1(xi).
(xii)Financial Advisory Agreement. Holdco, the other Acquiring
Companies and certain Acquired Companies shall execute and
deliver to Hicks, Muse & Co. Partners, L.P. a financial
advisory agreement in the form attached hereto as Exhibit
4.1.1(xii) (the "Financial Advisory Agreement").
(xiii) Stock Certificates. ConAgra shall deliver to Holdco stock
certificates representing the U.S. Processing Company Stock,
in each case, duly endorsed in blank or accompanied by stock
powers duly endorsed in blank (or equivalent transfer
documents under the Laws of the applicable country). ConAgra
shall deliver to Cattle Holdco stock certificates
representing the Cattleco Stock, duly endorsed in blank or
accompanied by stock powers duly endorsed in blank; ConAgra
shall cause Australia Holdco to deliver to Australia
Acquisition Co. share certificates representing the
Australia Operating Company Stock and share transfer forms.
(xiv)Acquisition LP Holdco Stock. ConAgra shall deliver to
Acquisition LP a stock certificate representing the
Acquisition LP Holdco Stock duly endorsed in blank or
accompanied by stock powers duly endorsed in blank.
(xv) Certificate. ConAgra shall execute and deliver the
certificates contemplated in Sections 10.2(a) and 10.2(b).
(xvi)Certificate. Acquisition LP shall execute and deliver the
certificates contemplated in Sections 10.3(a) and 10.3(b).
(xvii) Resignations. ConAgra shall deliver to Holdco written
resignations of the directors (or equivalent positions) of
each Acquiring Company and Acquired Company (other than
Colorado Feed LLC and Better Beef LLC) (other than directors
ConAgra is entitled to designate under Section 4.1.1(viii)),
together with the written resignations of the officers (or
equivalent positions) of each Acquiring Company and Acquired
Company (other than Colorado Feed LLC and Better Beef LLC)
as designated by Acquisition LP at least five (5) days prior
to the Closing Date.
(xviii) Real Property; Title Insurance. ConAgra shall deliver to
Acquisition LP, with respect to the parcels of real property
set forth on Schedule 7.23.1(a) and Schedule 7.23.1(b), (a)
original ALTA form owner policies of title insurance
insuring the title of the Acquired Companies in the
properties designated on Schedule 7.23.1(a) to be good and
marketable, including access, contiguity and comprehensive
endorsements, (b) a certificate of title for each property
listed in Schedule 7.23.1(b) for which a certificate of
title has been issued showing that an Acquired Company is
the registered proprietor under the applicable state
registration system, (c) ALTA/ACSM Land Title Surveys,
including items 2-4, 6, 7(a) and (c) and 8-11 of Table A of
the Standards (or land title surveys prepared in accordance
with equivalent standards with respect to real property
listed on Schedule 7.23.1(b)), updated not earlier than
ninety (90) days prior to the Closing, and (d) such other
related title documents and certificates required by the
Senior Bank Commitment Letter and the Bridge Commitment
Letter, the cost and expense of which in each case shall be
paid by ConAgra and shall be reimbursed by Holdco at the
Closing subject to Section 15.3.
(xix)By-Products Marketing Agreement. ConAgra shall cause ConAgra
Trade Group, Inc. to execute and deliver and Holdco shall
cause U.S. Acquisition Co. to execute and deliver the
By-Products Marketing Agreement in the form attached hereto
as Exhibit 4.1.1(xix) (the "By-Products Agreement"),
pursuant to which ConAgra Trade Group, Inc. agrees to
purchase certain products.
(xx) Transfer Restriction Agreement. ConAgra shallexecute and
deliver an agreement, in a form attached hereto as Exhibit
4.1.1(xx), pursuant to which ConAgra shall agree to certain
restrictions as set forth in the Senior Bank Commitment
Letter.
(xxi)License Agreement. Holdco shall cause Brand Holdco to
execute and deliver and ConAgra shall execute and deliver a
patent license agreement reasonably satisfactory to the
parties, pursuant to which Brand Holdco shall grant to
ConAgra and its Affiliates a perpetual, world-wide,
royalty-free license to use the technology described in
Patent No. 6,133,321 only with respect to poultry. This
license shall be exclusive with respect to poultry and shall
be non-transferable, except upon the sale of all or
substantially all of ConAgra's poultry assets. Neither party
shall be required to make any representations or warranties
of any kind to the other pursuant to such license agreement.
5. Post-Closing Matters.
5.1. Closing Balance Sheets.
5.1.1. Preparation. As soon as reasonably practicable following
the Closing Date (but in any event within thirty (30) days
after the Closing), ConAgra shall prepare, in accordance
with the terms of this Article 5, (i) a combined balance
sheet for the Acquired Companies (excluding Cattleco) (the
"Preliminary Processing Company Closing Balance Sheet"),
together with a separate combined balance sheet for
Australia Operating Company (the "Preliminary Australian
Closing Balance Sheet"), in each case estimated as of 12:01
a.m. New York City time on the Closing Date and (ii) a
balance sheet for Cattleco as of 12:01 a.m. New York City
time on the Closing Date (the "Preliminary Cattleco Closing
Balance Sheet"). Such balance sheets are collectively
referred to as the "Preliminary Closing Balance Sheets."
ConAgra shall prepare the Preliminary Closing Balance Sheets
in accordance with GAAP, and the methodology, procedures and
manner of presentation set forth in Exhibit 5.1.1. It is
expressly acknowledged by the parties hereto that the
inclusion of items 13 and 14 on Schedule 7.8.2 shall not in
any manner prejudice or otherwise constitute a waiver of any
party's rights under this Article 5 or constitute an
admission by a party that such actions are permitted under
this Article 5 or Exhibit 5.1.1 hereto. Immediately upon
completion of the Preliminary Closing Balance Sheets,
ConAgra shall submit the Preliminary Closing Balance Sheets
to Deloitte & Touche LLP ("Deloitte") for audit in
accordance with the terms of this Article 5.
5.1.2. Deloitte Engagement and Audit. Promptly following the
execution of this Agreement, ConAgra and Acquisition LP
shall jointly engage Deloitte, pursuant to the engagement
letter in substantially the form attached hereto as Exhibit
5.1.2(a), to (i) audit the Preliminary Closing Balance
Sheets in accordance with GAAP and the provisions of this
Agreement, including, without limitation, Exhibit 5.1.1 (the
"Audit"), and (ii) upon completion of the Audit, deliver to
ConAgra and Acquisition LP its draft preliminary audit
reports in the form attached hereto as Exhibit 5.1.2(b) (the
"Report") together with the accompanying draft audited
combined balance sheet for the Acquired Companies (excluding
Cattleco) (the "Audited Processing Closing Balance Sheet"),
the accompanying draft audited combined balance sheet for
Australia Operating Company (the "Audited Australian Closing
Balance Sheet") and the accompanying audited balance sheet
for Cattleco (the "Audited Cattleco Closing Balance Sheet").
The Audited Processing Closing Balance Sheet, the Audited
Australian Closing Balance Sheet and Audited Cattleco
Closing Balance Sheet are herein collectively referred to as
the "Audited Closing Balance Sheets." The parties
acknowledge and agree that Deloitte shall not issue its
final audit report until all Notices of Objection have been
resolved in accordance with Section 5.1.3 and such
resolution is incorporated into the Audited Closing Balance
Sheets.
5.1.3. Objections; Resolution of Disputes. (i) Unless Acquisition
LP notifies ConAgra in writing, within thirty (30) days
after Deloitte's delivery of the Audited Closing Balance
Sheets, of any objection to the computations set forth
therein (the "Notice of Objection"), the Audited Closing
Balance Sheets shall become final and binding. Any such
objection shall be limited to matters concerning (x)
mathematical errors or (y) the Audited Closing Balance
Sheets not having been calculated or prepared in accordance
with this Agreement, including, without limitation, Exhibit
5.1.1. During such 30-day period Acquisition LP and its
representatives shall be permitted to review the working
papers of ConAgra and Deloitte relating to the Audited
Closing Balance Sheets. Any Notice of Objection shall
specify in reasonable detail the basis for the objections
set forth therein.
(ii) If Acquisition LP provides the Notice of Objection to
ConAgra within such 30-day period, Acquisition LP and
ConAgra shall, during the 30-day period following
ConAgra's receipt of the Notice of Objection, attempt
in good faith to resolve Acquisition LP's objections.
During such 30-day period, ConAgra and its
representatives shall be permitted to review the
working papers relating to the Notice of Objection and
the basis therefor. If Acquisition LP and ConAgra are
unable to resolve all such objections within such
30-day period, the matters remaining in dispute shall
be submitted to KPMG LLP (or, if such firm declines to
act, to another nationally recognized public accounting
firm mutually agreed upon by Acquisition LP and ConAgra
and, if Acquisition LP and ConAgra are unable to so
agree within ten (10) days after the end of such 30-day
period, then Acquisition LP and ConAgra shall each
select such a firm and such firms shall jointly select
a third nationally recognized firm to resolve the
disputed matters (such selected firm being the
"Independent Expert")). The parties shall instruct the
Independent Expert to render its reasoned written
decision as promptly as practicable but in no event
later than sixty (60) days after its selection. The
resolution of disputed items by the Independent Expert
shall be final and binding, and the determination of
the Independent Expert shall constitute an arbitral
award that is final, binding and nonappealable and upon
which a judgment may be entered by a court having
jurisdiction thereover. The fees and expenses of the
Independent Expert shall be borne by U.S. Acquisition
Co. Promptly following the respective date that ConAgra
and Acquisition LP reach agreement upon or, if
applicable, the respective date of the final
determination, the parties shall cause such resolution
to be incorporated into the Audited Closing Balance
Sheets and shall cause Deloitte to issue its final
audit report. The Audited Processing Company Closing
Balance Sheet, as adjusted (the "Final Processing
Closing Balance Sheet"), the Audited Australian Closing
Balance Sheet, as adjusted (the "Final Australian
Closing Balance Sheet"), and the Audited Cattleco
Closing Balance Sheet, as adjusted (the "Final Cattleco
Closing Balance Sheet"), shall be final, binding and
conclusive for all purposes hereunder.
5.1.4. Processing Company Settlement Payment. On the fourth
business day following delivery of the Final Processing
Closing Balance Sheet pursuant to this Section 5, (i) Holdco
shall pay or cause to be paid to ConAgra or its designee the
amount, if any, by which the Combined Processing Company
Stockholders Net Investment set forth in the Final
Processing Closing Balance Sheet exceeds the Estimated
Processing Company Stockholders Net Investment, (ii) ConAgra
or its designee shall pay to Holdco the amount, if any, by
which the Estimated Processing Company Stockholders Net
Investment exceeds the Combined Processing Company
Stockholders Net Investment set forth in the Final
Processing Closing Balance Sheet, and (iii) the party making
the payment pursuant to (i) or (ii) above shall also pay
interest on such amount from the Closing Date through the
date of payment at the Prevailing Rate.
5.1.5. Cattleco Settlement Payment. Effective as of the agreement
upon or determination of the Final Cattleco Closing Balance
Sheet, to the extent, if any, that the Cattleco Stockholder
Net Investment set forth therein (after giving effect to
Cattleco Loan Amount) is (i) less than Thirty Million United
States Dollars ($30,000,000), then the Cattleco Loan Amount
shall be deemed reduced by the amount of such shortfall and
(ii) more than Thirty Million United States Dollars
($30,000,000), then the Cattleco Loan Amount shall be deemed
increased by the amount of such excess. Any such adjustment
to the Cattleco Loan Amount shall solely be for purposes of
determining the outstanding balance thereof and shall be
retroactive to the date of the initial borrowing of the
Cattleco Loan Amount and the Cattleco Loan Amount shall be
deemed to have been adjusted as of such date and for all
periods thereafter and for all purposes, including interest
paid or accrued under the Cattleco Loan Agreement.
5.1.6. Access; Fees. After the Closing, Holdco shall provide, and
shall cause the Acquired Companies to provide, to ConAgra
and Deloitte such assistance and access to books, records
and other supporting documents as is necessary to timely
prepare the Preliminary Closing Balance Sheets, conduct the
Audit and prepare, issue and deliver the Report and the
Audited Closing Balance Sheets, including, but not limited
to, access to each Acquired Company's employees and books,
records and other supporting documents. ConAgra shall
provide to Deloitte such assistance and access to books,
records and other supporting documents as is necessary for
Deloitte to timely conduct the Audit and prepare, issue and
deliver the Report and the Audited Closing Balance Sheets.
Holdco shall pay or cause to be paid all of the fees and
expenses of Deloitte in connection with the Audit and the
Report.
5.1.7. Certain Definitions. (i) For purposes of this Agreement,
"Combined Processing Company Stockholders Net Investment"
shall mean the stockholders' net investment and advances as
reflected in a combined balance sheet for the Acquired
Companies (excluding Cattleco) as of 12:01 a.m. New York
City time on the Closing Date in accordance with Exhibit
5.1.1.
(ii) For purposes of this Agreement, "Cattleco Stockholder
Net Investment" shall mean the stockholder's net
investment and advances as reflected in a balance sheet
for Cattleco as of 12:01 a.m. New York City time on the
Closing Date prepared in accordance with Exhibit 5.1.1.
(iii)For purposes of this Agreement, "Australian
Stockholder Net Investment" shall mean the
stockholder's net investment and advances as reflected
in a combined balance sheet for Australia Operating
Company as of 12:01 a.m. Australian time on the Closing
Date in accordance with Exhibit 5.1.1.
6. Employee Matters.
6.1. General. As of the Effective Time, by virtue of the
transactions contemplated herein, each Acquired Company
shall continue to employ each individual employed by an
Acquired Company on the Closing Date (including employees
absent from work due to short-term or long-term disability,
sick leave, military leave or other permitted absences) (the
"Company Employees"). As of the Effective Time, ConAgra
shall terminate, or shall cause its Affiliates (that are not
Acquired Companies) to terminate, those employees who are
not employed by Acquired Companies but who are employed at
locations at which the Businesses are located and who
perform substantially all of their services for the
Businesses, including, without limitation, those management
employees listed on Exhibit 6.1, and Holdco, an Acquired
Company, or a Subsidiary thereof shall offer such employees
employment. Upon such employees' acceptance of employment
with Holdco, an Acquired Company, or a Subsidiary thereof,
these employees shall be included in the term "Company
Employees." Notwithstanding the foregoing, nothing contained
in this Agreement shall prohibit Holdco, any Acquired
Company or a Subsidiary of either from terminating or
changing the terms of employment of any Company Employee
after the Effective Time. ConAgra and its Affiliates (that
are not Acquired Companies) hereby waive any claims against
Holdco, any Acquired Company and any Subsidiary of either,
and against any Company Employee, as a result of such
Company Employee's employment with Holdco, any Acquired
Company or a Subsidiary of either, including any claims
under any employment agreement, confidentiality agreement
(to the extent such confidential information relates to the
Businesses and not to other businesses of ConAgra and its
Affiliates (that are not Acquired Companies)) or
non-competition agreement.
6.2. Non-Solicitation. For a period of twenty-four (24) months
from the Closing Date, without the written consent of
Holdco, ConAgra shall not, and shall cause its Affiliates
(that are not Acquired Companies) to not, solicit for
employment, hire or retain in any capacity, or dissuade
(prior to the Closing or after the Closing during such
twenty-four (24) month period) from continuing or accepting
employment with Holdco or a Subsidiary thereof, any Company
Employee or individual who (i) performed services for the
Businesses prior to the Effective Time, (ii) is offered
employment in accordance with Section 6.1 and (iii) receives
stock options in Holdco on the Closing Date. Holdco shall
provide ConAgra with notice of such covered individuals on
the Closing Date. Notwithstanding the foregoing, if any such
Company Employee's employment terminates with Holdco or a
Subsidiary thereof, ConAgra may hire such Company Employee;
provided, however, that such hiring shall be prohibited by
this Section 6.2 if ConAgra solicits the Company Employee
prior to the Company Employee's termination.
6.3. COBRA. Holdco and the Acquired Companies shall be
responsible for perpetuating the group health plan
continuation coverage pursuant to Section 4980B of the Code
and Sections 601-609 of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"), for Company
Employees and their eligible dependents.
6.4. Pension Plan. As of the Closing Date, Company Employees
shall cease to actively participate in any Employee Plan
subject to Title IV of ERISA that is not a multiemployer
plan within the meaning of Section 3(37) of ERISA (a
"Multiemployer Plan") and that is sponsored by ConAgra or
any Affiliate (the "ConAgra Pension Plans"), and will
receive no further benefit accruals under the ConAgra
Pension Plans. ConAgra shall cause Company Employees to be
one hundred percent (100%) vested in their accrued benefits
under the ConAgra Pension Plans effective as of the Closing
Date.
6.5. 401(k) Plans. As of the Closing Date, Company Employees
shall cease to actively participate in the ConAgra
Retirement Income Savings Plan and the ConAgra Retirement
Income Savings Plan for Hourly Rate Production Employees
(the "ConAgra 401(k) Plans"). No contributions shall be made
to the ConAgra 401(k) Plans for the benefit of Company
Employees with respect to compensation earned by the Company
Employees after the Closing Date. ConAgra shall cause the
interests of the Company Employees in the ConAgra 401(k)
Plans to be one hundred percent (100%) vested and fully
nonforfeitable as of the Closing Date. Except as expressly
set forth herein, no assets of any Employee Plan shall be
transferred to Holdco or any of its Affiliates or to any
plan of Holdco or any of its Affiliates. As soon as
practical following receipt by Holdco and ConAgra of
favorable determination letters or Holdco's certification to
ConAgra, and ConAgra's certification to Holdco, in a manner
reasonably acceptable to both ConAgra and Holdco, that
Holdco's 401(k) plan and ConAgra's 401(k) Plans are
qualified under the applicable provisions of the Code,
ConAgra shall cause the trustee of ConAgra's 401(k) Plans to
transfer, solely in the form of cash or notes representing
outstanding participant loans (provided, however, at
Holdco's reasonable election, some assets may be transferred
in kind), assets representing the full account balances of
the Company Employees, together with the appropriate net
investment return (including unrealized appreciation or
depreciation) thereon, reduced by any necessary benefit or
withdrawal payments made in respect of Company Employees
prior to the actual date of transfer, to the trustee of
Holdco's 401(k) plan, and upon such transfer, Holdco and
Holdco's 401(k) plan shall be responsible for proper
administration of such account balances and the related
liability to the Company Employees.
6.6. Welfare Plans. Except as otherwise set forth in the
Transition Services Agreement, as of the Closing Date,
Company Employees shall cease to participate in any plan or
program described in Section 3(1)(A) of ERISA (other than a
plan, fund or program established or maintained for the
purpose of providing unemployment, severance or worker's
compensation benefits), including foreign plans not subject
to ERISA ("Welfare Plan"), sponsored by ConAgra or any
Affiliate of ConAgra that is not an Acquired Company. Holdco
shall provide those Welfare Plans to the Company Employees
as Holdco deems appropriate after the Closing Date. ConAgra
shall be responsible for and shall pay, or shall cause to be
paid or shall cause its Welfare Plans to be responsible for
and pay (subject to their terms), all claims incurred by the
Company Employees and their beneficiaries on or before the
Closing Date (whether or not reported as of the Closing
Date) under any Welfare Plan (whether those claims are
incurred under a Welfare Plan sponsored by ConAgra, an
Acquired Company, or a Subsidiary of either) and Holdco
shall be responsible for and shall pay or cause to be paid,
or shall cause its Welfare Plans to be responsible for and
pay (subject to their terms), all claims incurred by the
Company Employees and their beneficiaries after the Closing
Date under Welfare Plans sponsored by Holdco, an Acquired
Company or a Subsidiary of either. Notwithstanding the
foregoing, matters with respect to any Welfare Plan that is
a plan, fund or program established or maintained for the
purpose of providing unemployment, severance or workers'
compensation benefits shall be governed by Sections 6.12 and
6.14 to the extent those sections are inconsistent with this
Section 6.6.
6.7. Flexible Spending Accounts. ConAgra maintains a plan
qualified under Codess.125 ("ConAgra's 125 Plan") that
includes flexible spending accounts for medical care
reimbursements and dependent care reimbursements
("Reimbursement Accounts"). As soon as reasonably
practicable following the Closing Date, cash equal to the
aggregate value of the Reimbursement Accounts of the Company
Employees shall be transferred from ConAgra to a plan
established by Holdco intended to qualify under Codess.125
("Holdco's 125 Plan"). Upon receipt of such amount, Holdco
and Holdco's 125 Plan shall assume all obligations and
liabilities with respect to the Reimbursement Accounts for
the Company Employees. Holdco shall recognize the elections
of the Company Employees under ConAgra's 125 Plan for
purposes of Holdco's 125 Plan for calendar year 2002.
6.8. Holdco Plans. To the extent such periods of service would
have counted under similar benefit plans of ConAgra and the
Acquired Companies covering Company Employees, Holdco shall
cause prior periods of service with ConAgra and the Acquired
Companies to count for purposes of eligibility and vesting
under any benefit plans provided to Company Employees after
Closing. To the extent such conditions and provisions would
be waived under similar benefit plans of ConAgra and the
Acquired Companies covering Company Employees, Holdco shall
cause the Acquired Companies to waive pre-existing condition
requirements, evidence of insurability provisions, waiting
period requirements or any similar provisions under any
employee benefit plan or compensation arrangements provided
to any Company Employees after the Closing Date. After
Closing, to the extent such amounts paid or accrued by
Company Employees would be applied under similar benefit
plans of ConAgra or the Acquired Companies, Holdco shall
also cause the Acquired Companies to apply toward any
deductible requirements and out-of-pocket maximum limits
under its employee welfare benefit plans any amounts paid
(or accrued) by each Company Employee prior to Closing under
welfare benefit plans during the then-current plan year.
6.9. Defined Benefit Pension Plan and Retiree Benefits
Obligations. From and after the Effective Time, ConAgra
shall continue to be responsible for and pay all obligations
under any and all Employee Plans or other plan of ConAgra or
any Affiliate that provides post-retirement medical or life
insurance benefits (except as required by Section 4980B of
the Code and Sections 601-609 of ERISA), or that is subject
to Title IV of ERISA (except for Multiemployer Plans to the
extent they cover Company Employees), specifically
including, but not limited to, (i) the SIPCO Post-Retirement
Medical Plan, and (ii) the Swift Independent Packing Pension
Plan for Nonsalaried Employees.
6.10.Stock Options. From and after the Effective Time,
employment of the Company Employees with an Acquired Company
or Affiliate shall be deemed to be employment with ConAgra
for eligibility to exercise and vesting purposes under any
stock option, restricted stock, phantom stock, stock
appreciation right or similar benefit granted to a Company
Employee by ConAgra or an Affiliate prior to the Effective
Time under any ConAgra stock option plan and under the
ConAgra Foods, Inc. Long Term Senior Management Incentive
Plan; provided, however, these provisions shall not apply
with respect to any periods of employment during which the
entity employing the Company Employee is less than
twenty-five percent (25%) owned, directly or indirectly, by
ConAgra and its Affiliates. ConAgra shall be responsible for
all costs and expenses associated, including, without
limitation, benefits payable, with the requirements of this
Section 6.10.
6.11.Deferred Compensation. As of the Closing Date, Company
Employees shall cease to actively participate in any plan or
program described in Section 3(2) of ERISA that is not
intended to be qualified under Section 401(a) of the Code
and that is sponsored by ConAgra or any Affiliate that is
not an Acquired Company ("Nonqualified Plan"). ConAgra shall
be responsible for and shall pay (or cause to be paid) all
benefits due under any Nonqualified Plan. From and after the
Effective Time, employment of the Company Employees with an
Acquired Company or an Affiliate shall be deemed to be
employment with ConAgra for purposes of vesting and
eligibility for earnings or interest under any Nonqualified
Plan; provided, however, that this provision shall not apply
with respect to any periods of employment during which the
entity employing the Company Employees is less than
twenty-five percent (25%) owned, directly or indirectly, by
ConAgra and its Affiliates. ConAgra shall be responsible for
all costs and expenses associated with the requirements of
this Section 6.11. Holdco shall be responsible for and shall
pay (or cause to be paid) all benefits under nonqualified
plans sponsored by any Acquired Company that are listed on
Exhibit 6.11.
6.12.Worker's Compensation. ConAgra shall be responsible for and
shall pay, or shall cause its workers' compensation plans,
policies (or similar arrangements for compensating employees
for on-the-job injuries or illnesses) or carriers to be
responsible for and pay (subject to the terms of the
applicable plan, policy or arrangement), all claims asserted
by the Company Employees whose place of employment is in the
United States (whether such claim is asserted before, on or
after the Closing Date) arising or resulting from, or
relating to, incidents occurring on or before the Closing
Date (whether or not the incident has been reported on or
before the Closing Date). Holdco shall be responsible for
and pay or cause to be paid, or shall cause its workers'
compensation plans, policies (or similar arrangements for
compensating employees for on-the-job injuries or illnesses)
or carriers to be responsible for and pay (subject to the
terms of the applicable plan, policy or arrangement), all
claims asserted by the Company Employees arising or
resulting from, or relating to, incidents occurring after
the Closing Date.
6.13.Stay Bonuses. Holdco shall be responsible for and shall pay
any and all retention, change in control, stay-pay or
similar obligations which result from this Agreement or the
consummation of the transactions contemplated herein as
described and in the amounts set forth on Part I of Exhibit
6.13. ConAgra shall be responsible for and shall pay to the
Company Employees any and all retention, change in control,
stay-pay or similar obligations which result from this
Agreement or the consummation of the transactions
contemplated herein as described and in the amount set forth
on Part II of Exhibit 6.13. ConAgra represents and warrants
that, except as disclosed in Parts I and II of Exhibit 6.13,
no amounts will be payable to any Company Employee as a
result of the transactions contemplated by the Transaction
Documents.
6.14.Severance. ConAgra shall be responsible for and shall pay
any amount due to any individual who is terminated by
ConAgra or an Affiliate (that is not an Acquired Company) in
accordance with Section 6.1 that results from the
termination of employment of such individual from ConAgra or
an Affiliate that is not an Acquired Company or Acquiring
Company. ConAgra shall be responsible for and shall pay any
amount due to the individual listed on Exhibit 6.14(a) that
results from the termination of employment of such
individual from ConAgra or an Affiliate or an Acquired
Company or Acquiring Company, whether or not in connection
with the transactions contemplated by the Transaction
Documents. Holdco shall be responsible for and shall pay any
amount due to any Company Employees (other than the
individual listed on Exhibit 6.14(a)) whose employment with
an Acquiring Company or Acquired Company is terminated
following the Closing. Holdco shall offer to the individuals
listed on Exhibit 6.14(b) severance benefits set forth on
Exhibit 6.14(b). In addition, Holdco shall use its
reasonable efforts to ensure that any individual listed on
Exhibit 6.14(b) that accepts employment with an Acquired
Company waives severance rights under any agreement or
arrangement with ConAgra existing prior to the Closing.
6.15.Employment Agreements. Subject to ConAgra's obligations set
forth in Sections 6.13 and 6.14, Holdco shall be responsible
for any payments due under the employment letters,
agreements and arrangements set forth on Exhibit 6.15.
6.16. [Intentionally Omitted]
6.17.Cooperation. The parties shall cooperate with each other
and exchange any information, filings or notices (including
the notice required by Section 204(h) of ERISA) as
appropriate to implement the provisions of this Article 6.
6.18.Indemnity. After the Closing, Holdco shall indemnify and
hold each of the ConAgra Indemnified Parties harmless from
and against any ConAgra Indemnified Costs resulting directly
or indirectly from any breach or nonfulfillment of any
agreement, representation, warranty or covenant on the part
of Holdco, the other Acquiring Companies or the Acquired
Companies under this Article 6. After the Closing, ConAgra
shall indemnify and hold each of the Holdco Indemnified
Parties harmless from and against any Holdco Indemnified
Costs resulting directly or indirectly from any breach or
nonfulfillment of any agreement, representation, warranty or
covenant on the part of ConAgra under this Article 6. With
respect to any third-party action (as defined in Section
12.4.1) relating to the indemnification obligations set
forth in this Section 6.18, Section 12.4 shall govern the
procedures, rights and obligations with respect thereto.
6.19.LLC Employees. Notwithstanding the foregoing provisions of
Article 6, Company Employees who are employed by Better Beef
LLC or Colorado Feed LLC ("LLC Employees") and employee
benefit plans covering the LLC Employees and the claims and
liabilities associated with the LLC Employees under such
employee benefit plans shall be handled as follows:
(a) ConAgra and Holdco intend that the consummation of the
transactions contemplated by this Agreement shall not
cause a change in the employment status of the LLC
Employees.
(b) To the extent that the LLC Employees are covered by
employee benefit plans that are sponsored by ConAgra or
any Affiliate of ConAgra that is not an Acquired
Company, the LLC Employees shall cease to participate
in such plans as of the Closing Date (except as
provided in the Transition Services Agreement), and
ConAgra shall be responsible for and shall pay, or
shall cause to be paid or shall cause its employee
benefit plans to be responsible for and pay (subject to
their terms), all claims and Liabilities associated
with the LLC Employees arising on or before the Closing
Date, and neither ConAgra nor any Affiliate that is not
an Acquired Company shall have any Liability for any
claims and Liabilities associated with the LLC
Employees that arise after the Closing Date.
(c) To the extent that the LLC Employees are covered by
employee benefit plans that are not sponsored by
ConAgra or any Affiliate of ConAgra that is not an
Acquired Company, ConAgra shall be responsible for and
shall pay, or shall cause to be paid, its share of all
claims and Liabilities associated with the LLC
Employees under such employee benefit plans arising on
or before the Closing Date in accordance with past
practices in effect for such claims and Liabilities,
and neither ConAgra nor any Affiliate that is not an
Acquired Company shall have any Liability for any
claims and Liabilities associated with the LLC
Employees that arise after the Closing Date.
7. Representations and Warranties of ConAgra. ConAgra hereby represents and
warrants to Acquisition LP as set forth below. Such representations and
warranties are made subject to those matters set forth in the ConAgra Disclosure
Schedule dated as of the date hereof and delivered as a separate document (the
"ConAgra Disclosure Schedule") in the manner provided for in the introductory
paragraph of the ConAgra Disclosure Schedule. After the date of their respective
formation, each of the following representations and warranties pertaining to an
Acquiring Company shall also cover S&C Holdco 2, S&C Holdco 3, Cattleco Holdco,
U.S. Acquisition Co., Brand Holdco and Australia Acquisition Co., as applicable,
as of their respective date of formation through the time period that
Acquisition LP acquires its Acquisition LP Percentage Interest. Except to the
extent that the provisions of a particular representation and warranty expressly
provide that it is made as of a specified date, each of the following
representations and warranties shall be made as of the date of this Agreement
and shall constitute continuing representations and warranties made as of each
date after the date of this Agreement prior to and including the Closing Date.
Each of the representations and warranties set forth in Sections 7.1, 7.6, 7.8,
7.9, 7.10, 7.11, 7.12, 7.13, 7.14, 7.15, 7.16, 7.17, 7.18, 7.19, 7.20, 7.21,
7.22, 7.23, 7.24 and 7.25, insofar as they pertain to Better Beef LLC and
Colorado Feed LLC shall be deemed to have been made to the Knowledge of ConAgra.
For purposes of Article 12, following the Closing, all such representations and
warranties shall be deemed to have been made directly to Holdco and each
Subsidiary thereof.
7.1. Organization, Good Standing and Corporate Power. Each Acquiring
Company and Acquired Company is duly organized, validly existing
and in good standing under the laws of its jurisdiction of
formation as set forth on Schedule 7.1. Each Acquiring Company
and Acquired Company has power and authority to own, operate and
lease its properties and to carry on its business as now being
conducted. Each Acquiring Company and Acquired Company is duly
qualified and in good standing to conduct its business in all
jurisdictions listed on Schedule 7.1, which jurisdictions
represent every jurisdiction in which the nature of its business
or the ownership or leasing of its properties makes such
qualification necessary except where the failure to so qualify
has not had a Company Material Adverse Effect.
7.2. Articles and By-Laws. ConAgra has previously made available to
Acquisition LP complete and correct copies of the certificates or
articles of incorporation, applications, constitutions,
certificates of formation, by-laws and operating agreements (or
equivalent organization and governing documents) of Holdco and
each Acquired Company, as in effect at the date of this Agreement
(collectively, and together with the certificates of
incorporation, applications, constitutions and by-laws of each of
the Acquiring Companies to be formed prior to the Closing as
provided herein, the "Charter Documents"). As of the Closing, the
Charter Documents shall be in the form and substance as
previously delivered to Acquisition LP or, as applicable, in the
form and substance attached as an Exhibit to this Agreement.
Schedule 7.2 contains a complete and accurate list of all
officers and directors (or equivalent Persons) of Holdco and each
Acquired Company. No Acquired Company (other than Better Beef LLC
and Colorado Feed LLC) and, to the Knowledge of ConAgra, neither
Better Beef LLC nor Colorado Feed LLC is in violation of any
provisions of its Charter Documents.
7.3. Corporate Authorization; Binding Effect. ConAgra and each
Acquiring Company and Acquired Company has all requisite power
and authority to enter into this Agreement and each other
agreement, document and instrument required to be executed in
accordance herewith, including, without limitation, each of the
documents the forms of which are attached as Exhibits hereto
(collectively with the Agreement, the "Transaction Documents"),
to which ConAgra or any such Acquiring Company or Acquired
Company is a party and to consummate the transactions
contemplated hereby or thereby. The execution and delivery of the
Transaction Documents by ConAgra and each Acquiring Company and
Acquired Company and the consummation by ConAgra and such
Acquiring Company and Acquired Company of transactions
contemplated hereby and thereby have been duly authorized by all
necessary action on the part of ConAgra and such Acquiring
Company and Acquired Company. This Agreement has been, and at the
Closing each of the other Transaction Documents to which ConAgra
and each Acquiring Company and Acquired Company is a party will
be, duly executed and delivered by ConAgra and such Acquiring
Company and Acquired Company. This Agreement constitutes, and
upon execution and delivery thereof by ConAgra and each Acquiring
Company and Acquired Company, the other Transaction Documents to
which ConAgra and each Acquiring Company and Acquired Company is
a party will constitute, the valid and binding obligations of
ConAgra and each Acquiring Company and Acquired Company,
enforceable against it in accordance with its respective terms,
subject to applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and similar laws affecting
creditors' rights and remedies generally and subject, as to
enforceability, to general principles of equity.
7.4. Effect of Agreement. Except as set forth on Schedule 7.4, the
execution, delivery and performance of the Transaction Documents
by ConAgra, the Acquiring Companies and the Acquired Companies
and the consummation by ConAgra, the Acquiring Companies and the
Acquired Companies of the transactions contemplated hereby and
thereby will not, with or without the giving of notice or the
lapse of time or both, assuming compliance with the matters
referred to in Section 7.5, (i) violate, conflict with, or result
in any breach of any provision of any of the Charter Documents,
or ConAgra's certificate of incorporation or by-laws, (ii)
violate, conflict with, or result in a violation or breach of, or
constitute a default (with or without due notice or lapse of time
or both) under, or require the consent or approval of any
third-party under or permit the termination of, or result in the
acceleration of, or entitle any party to accelerate (whether as a
result of a change in control of any Acquiring Company or
Acquired Company or otherwise) any obligation, or result in the
loss of any benefit, or give any Person the right to require any
security to be repurchased, or give rise to the creation of any
Lien upon any of the properties or assets of ConAgra or any
Acquiring Company or Acquired Company under, any of the terms,
conditions, or provisions of any loan or credit agreement, note,
bond, mortgage, indenture or deed of trust, or any Company
Material Contract or, with respect to ConAgra, any material
contract, to which any of them is a party or by which any of them
or any of their properties or assets may be bound or subject, or
(iii) violate any Law applicable to ConAgra or any Acquiring
Company or any Acquired Company or by which or to which any of
their respective properties or assets is bound or subject.
7.5. Government Authorization. Except as set forth on Schedule 7.5,
the execution, delivery and performance by ConAgra of the
Transaction Documents requires no consent, approval, order, or
authorization of, or registration, declaration, or filing with,
any Governmental Authority other than (a) the filing of a
pre-merger notification report under the HSR Act; (b) applicable
requirements, if any, of the Securities Act of 1933, as amended
(the "Securities Act"), and state securities or blue sky laws;
and (c) compliance with any applicable non-United States laws
intended to prohibit, restrict, limit or regulate actions having
the purpose or effect of monopolization or restraint of trade or
regulating foreign investment, including, without limitation,
FATA.
7.6. Capital Stock; Title to Shares. Schedule 7.6 sets forth the
capitalization of Holdco and each Acquired Company, including the
number of authorized shares of each class of capital stock,
voting securities or other ownership interests and the par value
thereof, the number of shares of each class of capital stock,
voting securities or other ownership interests held in treasury,
and the number of issued and outstanding shares of each class of
capital stock, voting securities or other ownership interests and
the names of, and number of securities held by, the record owners
thereof, and such ownership is free and clear of all Liens. At
the Closing, each Acquiring Company's ownership of each other
Acquiring Company as contemplated herein shall constitute
ownership of all outstanding securities of the Acquiring Company
so owned and such ownership shall be free and clear of all Liens.
No shares of capital stock, voting securities or other ownership
interests of any Acquiring Company or any Acquired Company are
reserved for issuance for any purpose. As to each Acquiring
Company and Acquired Company, there are no bonds, debentures,
notes or other indebtedness issued or outstanding having the
right to vote ("Voting Debt") on any matters on which holders of
capital stock, voting securities or other ownership interests
thereof may vote. All of the issued and outstanding shares of
capital stock, voting securities or other ownership interests of
each Acquiring Company and Acquired Company are duly authorized,
validly issued, fully paid and nonassessable and have not been
issued in violation of any preemptive or similar rights. There
are no options, warrants, calls, rights, commitments or
agreements of any character to which any Acquiring Company or
Acquired Company is a party or by which it is bound obligating it
to issue, deliver or sell, or cause to be delivered or sold,
additional shares of capital stock, voting securities or other
ownership interests or any Voting Debt of such Acquiring Company
or Acquired Company, or obligating such Acquiring Company or
Acquired Company to grant, extend or enter into any such option,
warrant, call, right, commitment or agreement. There are no
outstanding contractual obligations of any Acquiring Company or
Acquired Company to repurchase, redeem or otherwise acquire any
shares of capital stock of any Acquiring Company or Acquired
Company. No Acquired Company has any Subsidiaries other than
another Acquired Company. Schedule 7.6 sets forth a general
description of the business, assets and Liabilities of each
Divested Company. No Acquiring Company or Acquired Company has
any ownership interest, directly or indirectly, in Weld Insurance
Co., Inc. or ConAgra International (Far East) Limited.
7.7. Financial Statements. ConAgra has heretofore delivered to
Acquisition LP copies of (i) the audited combined balance sheets
of the ConAgra Red Meat Business (as defined in footnote 1 to
such audited financial statements) as of May 27, 2001 and May 28,
2000, and the combined statements of earnings, stockholder's net
investment and advances and cash flows for the years ended May
27, 2001, May 28, 2000, and May 30, 1999 (the "Audited Financial
Statements"), and (ii) the unaudited combined summary balance
sheets, summary statements of earnings and summary cash flows of
the ConAgra Red Meat Business for the years ended May 31, 1998,
and May 25, 1997, and the unaudited combined summary balance
sheet of the ConAgra Red Meat Business for the year ended May 30,
1999 (collectively, the "Prior Unaudited Financial Statements"),
and (iii) the unaudited balance sheet of the ConAgra Red Meat
Business (the "Most Recent Balance Sheet") as of February 24,
2002 (the "Balance Sheet Date"), together with (A) the related
combined statements of earnings, stockholder's net investment and
advances and cash flows for the nine periods ended February 24,
2002, and (B) the related combined statement of earnings and cash
flows for the nine periods ended February 25, 2001 (together with
the Most Recent Balance Sheet, the "Most Recent Unaudited
Financial Statements"). The Prior Unaudited Financial Statements
and the Most Recent Unaudited Financial Statements shall be
collectively referred to as the "Unaudited Financial Statements."
The Audited Financial Statements and the Unaudited Financial
Statements shall be collectively referred to as, the "Financial
Statements." The Financial Statements, other than the Prior
Unaudited Financial Statements (including the related notes),
have been prepared in accordance with GAAP (other than the
absence of related notes in the case of the Unaudited Financial
Statements), present fairly, in all material respects, the
financial position, results of operations, stockholder's equity
and cash flows of the ConAgra Red Meat Business as of such dates
and for the periods then ended, except in the case of the
Unaudited Financial Statements for normal year end adjustments
that are not material in nature. The information presented by the
Prior Unaudited Financial Statements has been prepared on a basis
consistent with the accounting principles used in the preparation
of ConAgra's consolidated audited financial statements and in a
manner as required by SEC Regulation S-K Item 301 and fairly
presents, in all material respects, the financial position,
results of operations, stockholder's equity and cash flows of the
ConAgra Red Meat Business as of such dates and for the periods
then ended.
7.8. Conduct of Business Since May 27, 2001. Since May 27, 2001 and
except for the transactions contemplated herein:
7.8.1. As of the date hereof, there has not been a Company Material
Adverse Effect.
7.8.2. Except as set forth on Schedule 7.8.2, as of the date hereof,
no event has occurred that would have been prevented by Section
9.1.1 if the terms of such Section had been in effect as of and
after May 27, 2001.
7.8.3. Except as set forth on Schedule 7.8.3 and except for
indebtedness owed by an Acquired Company to ConAgra or a
Subsidiary thereof, since the Balance Sheet Date, none of the
Acquiring Companies or Acquired Companies have incurred or
assumed any indebtedness for borrowed funds or purchase money
indebtedness, or assumed, guaranteed, endorsed or otherwise
become liable or responsible (whether directly, contingently or
otherwise) for the obligations of any other Person, except in
respect to such assumptions, guarantees or endorsements for such
amounts that are immaterial and incurred in the ordinary course
of the Acquired Companies.
7.9. Taxes and Tax Returns.
7.9.1. General Tax Representations. Except as set forth on Schedule
7.9.1:
(i) All material Tax returns required to be filed by or with
respect to any Acquired Company have been duly and timely
filed; all material items of income, gain, loss, deduction
and credit or other items required to be included in each
such Tax return have been so included and all such items and
any other information provided in each such Tax return is
true, correct and complete in all material respects; all
material Taxes owed by any Acquired Company which are or
have become due have been timely paid in full; no penalty,
interest or other charge is or will become due with respect
to the late filing of any such Tax return or late payment of
any such Tax; all material Tax withholding and material
deposit requirements imposed on or with respect to any
Acquired Company have been satisfied in full; and there are
no Liens on any of the assets of any Acquired Company that
arose in connection with any failure (or alleged failure) to
pay any material Tax, except as shown on Schedule 7.23.1(a)
or Schedule 7.23.1(b);
(ii) All deficiencies asserted as a result of all federal, state,
local and foreign Tax examinations of the Acquired Companies
have been paid, fully settled or adequately provided for as
a Liability in the books and records of either the Acquired
Companies or ConAgra;
(iii)There are no pending examinations or written claims
asserted for Taxes of any Acquired Company or outstanding
agreements or waivers extending the statutory period of
limitation applicable to any Tax return of any Acquired
Company for any period or any pending Tax litigation of any
Acquired Company;
(iv) No Acquired Company has filed a consent under Section 341(f)
of the Code;
(v) Subject to the requirements of Exhibit 5.1.1 hereto, the
amounts set up as liabilities for current and deferred Taxes
in the Most Recent Balance Sheet will be sufficient to cover
the payment of all material Taxes in accordance with GAAP,
whether or not assessed or disputed, which are, or are
hereafter found to be, or to have been, due by or with
respect to the Acquired Companies up to and through the
periods ending on the dates thereof;
(vi) No Acquired Company has made any payments, is obligated to
make any payments, or is a party to any agreement that would
obligate it to make any payments that would not be
deductible by operation of Section 162(m) of the Code;
(vii)Since May 27, 1995, no Acquired Company (a) has been a
member of an affiliated group filing a consolidated federal
Income Tax return, other than the group of which ConAgra is
the common parent (the "ConAgra Group"), or (b) has any
Liability for the Taxes of any Person (y) under Treas. Reg.
ss. 1.1502-6 (or any similar provision of state, local, or
foreign law) other than for any member of the ConAgra Group,
or (z) as a transferee or successor, by contract or
otherwise, except for Taxes payable under a contract entered
into in the ordinary course of business;
(viii) The ratio of Australia Operating Company's land assets to
its total assets, whether considering its assets alone or
including any assets that it is deemed to own under the
stamp duty legislation or duty legislation in any Australian
State or Territory, is such that any acquisition, issue,
redemption or cancellation of shares in Australia Operating
Company cannot give rise to stamp duty or duty being
incurred in any Australian State or Territory at ad valorem
conveyance rates, either in substitution for or in addition
to any duty at transfer of share rates; and
(ix) In relation to Australia Operating Company and any of its
Subsidiaries (each of these companies are referred to as an
"Australian Company" in this paragraph): (a) each Australian
Company has maintained, in all material respects, reasonably
accurate records required under any Law relating to material
Taxes; (b) no Australian Company that is an Acquired Company
has claimed or has been a party to any claim for rollover
relief under the capital gains rules; (c) no material
dividend has been paid or is payable by an Australian
Company (including a deemed dividend) which would result in
the company being liable for material franking deficits tax
or material deficits deferral tax (each term as defined in
the Income Tax Assessment Act of 1936 of Australia (the
"1936 Act")); (d) no material debt or other obligation of an
Australian Company has been or is proposed to be forgiven
within the meaning of Schedule 2C (Division 245) of the 1936
Act; and (e) no share capital account of an Australian
Company is or has been "tainted" within the meaning of part
IIIAA of the 1936 Act.
7.9.2. Taxes Since May 27, 2001. Since May 27, 2001, no Acquired
Company has incurred any material Tax Liability other than Taxes
incurred in the ordinary and regular course of its business.
7.9.3. Definitions. For purposes of this Agreement, (i) the term "Tax"
or "Taxes" shall mean all taxes, charges, fees, levies or other
assessments of any kind, including, without limitation, income,
gross receipts, excise, property, sales, use, license, payroll,
franchise, stamp, ad valorem, transfer, profits, severance,
withholding, unemployment compensation, social security, fringe
benefits, duties or business occupation and other taxes and
charges of any nature whatsoever imposed by the United States, or
any state, local or foreign authority, government or subdivision
or agency thereof whether computed on a consolidated, unitary,
combined or separate basis; and such term shall include any and
all interest, penalties and additions to tax, as well as any
transferee Liability for taxes; (ii) the term "Tax return" shall
mean any report, return, statement or other document filed or
required by Law to be filed with a taxing authority in connection
with Taxes; (iii) the term "Pre-Closing Period" shall mean any
Taxable year that ends on or before the Closing Date, and, with
respect to any Taxable year beginning before and ending after the
Closing Date, shall mean the portion of such Taxable year ending
on the Closing Date; (iv) the term "Income Taxes" shall mean all
federal, state, local, foreign and other governmental Taxes
imposed on or measured by net income or Taxes that are the
functional equivalent of Taxes imposed on or measured by net
income that are imposed on or measured by capital; and (v) the
term "Non-Income Taxes" shall mean any Taxes other than Income
Taxes.
7.10. Intellectual Property.
7.10.1. Schedule 7.10.1 lists:
(i) Each item of Trademark Intellectual Property owned by any
Acquired Company, or by ConAgra or ConAgra's Affiliates and
used primarily in the Businesses, which is registered or for
which an application has been filed in a Covered Country;
(ii) Each item of Non-Trademark Intellectual Property owned by
any Acquired Company and material to the operation of the
Businesses, or owned by ConAgra or ConAgra's Affiliates and
used primarily in the Businesses, which is registered or for
which an application has been filed in the United States or
Australia; and
(iii)Each license or other agreement under which the
intellectual property of a third-party is licensed to an
Acquired Company, where the licensed intellectual property
is material to the operation of the Businesses, other than
normal and routine off-the-shelf software license
agreements.
True and complete copies of the foregoing, and all related license
agreements or contracts have been previously made available to
Acquisition LP.
7.10.2. Except as set forth in Schedule 7.10.2:
(i) Each Acquired Company has (or Brand Holdco will have as a
result of actions to be taken as described in this
Agreement) good title, free and clear of all Liens, to each
item of Trademark Intellectual Property listed in Schedule
7.10.1 which exists in a Covered Country, and to other items
of material Trademark Intellectual Property and
Non-Trademark Intellectual Property relating to or used or
intended for use primarily in connection with the Processing
Business or the Feed Lot Business (other than (x) those
items of intellectual property that are owned by a third
party and licensed to an Acquired Company and (y) those
items of intellectual property that are retained by ConAgra
and that are used by ConAgra to provide the services
contemplated by the Transition Services Agreement and the
Risk Management Agreement) and, to the Knowledge of ConAgra,
each Acquired Company has the legal right to use the
intellectual property associated with the licenses or other
agreements listed in Schedule 7.10.1. To the Knowledge of
ConAgra, each Acquired Company has the legal right to use
the know-how and trade secrets currently being used in the
operation of the Businesses;
(ii) For each material United States and Australian patent,
patent application, design patent, industrial design, and
design patent application listed in Schedule 7.10.1, all
maintenance fees required to be paid to avoid abandonment
have been timely paid;
(iii)For each item of Trademark Intellectual Property existing
in a Covered Country listed in Schedule 7.10.1, all
appropriate affidavits and associated fees necessary to show
continued use, and all renewals and associated fees, have
been timely filed with the appropriate administrative or
governmental office;
(iv) As listed in Schedule 7.10.1 (x) each material United States
and Australian patent application and copyright application
remains pending and has not been abandoned, (y) each
material United States and Australian patent is validly
existing and in full force and effect, and (z) each item of
Trademark Intellectual Property in a Covered Country listed
in Schedule 7.10.1 is validly existing and in full force and
effect.
(v) Each license agreement or contract listed in Schedule
7.10.1, under which an Acquired Company has any license,
right or interest in the material Intellectual Property
Rights is a valid and binding agreement which remains in
full force and effect;
(vi) To the Knowledge of ConAgra, no product used, sold or
manufactured by an Acquired Company, nor the conduct of the
Businesses as currently conducted, infringes on or otherwise
violates the patent, design patent, trademark, service mark,
trade name, copyright, industrial design, trade secret or
other intellectual property right of any third-party;
(vii)There are no unresolved Actions pending or, to the
Knowledge of ConAgra, threatened, that allege an Acquired
Company has infringed or misappropriated the intellectual
property of any third-party or that question the validity or
ownership of the Trademark or Non-Trademark Intellectual
Property owned by the Acquired Companies or used in the
Businesses. To the Knowledge of ConAgra, no third-party has
misappropriated or infringed any material Trademark or
Non-Trademark Intellectual Property owned by the Acquired
Companies or used in the Businesses.
(viii) No Acquired Company is a party to any agreements, or named
in or a party to any judicial orders or settlement
agreements which limits or restricts such Acquired Company's
use or right to use any of the material Trademark
Intellectual Property, or Non-Trademark Intellectual
Property or to any item of Trademark Intellectual Property
listed in Schedule 7.10.1 which exists in a Covered Country.
The Acquired Companies have not granted any licenses or
other rights to any Trademark Intellectual Property listed
in Schedule 7.10.1 which exists in a Covered Country, or to
any other item of the material Trademark Intellectual
Property or Non-Trademark Intellectual Property owned by the
Acquired Companies or used in the Businesses, and are under
no obligation, contingent or otherwise, to do so now or in
the future.
7.10.3. "Trademark Intellectual Property" shall mean intellectual
property of any kind relating to trademarks and the goodwill
attached thereto, including, without limitation, all trademarks,
trademark registrations, trademark applications, service marks,
service mark registrations, service mark applications, trade
names, registered trade names, trade name applications, domain
names, brands and product configurations, all trademarks
containing the term "Swift" and any derivatives, and any other
item or thing that tends to indicate the source of a particular
product or service.
7.10.4. "Non-Trademark Intellectual Property" shall mean all
intellectual property of any kind, including, without limitation,
all inventions (whether patented or not), discoveries, technical
advances, patents, copyrights, computer software, documentation,
confidential and proprietary information (including trade secrets
and know-how), and registrations and applications for
registration of the foregoing, excluding, however, the Trademark
Intellectual Property.
7.11.Absence of Undisclosed Liabilities. As of the date hereof, there
are no Liabilities or obligations of any kind material to the
Business (whether absolute, accrued, fixed, known or unknown,
contingent or otherwise) of an Acquired Company that are not
reflected on or reserved against in the Most Recent Balance
Sheet, other than (i) Liabilities or obligations incurred in the
ordinary course of business since the Balance Sheet Date, or as
otherwise contemplated by this Agreement, (ii) Liabilities and
obligations arising pursuant to this Agreement, (iii) any such
Liability or obligation which would not be required to be
presented in financial statements prepared in conformity with
GAAP, and (iv) the items set forth on Schedule 7.11.
7.12.Actions and Proceedings. Except as set forth on Schedule 7.12, as
of the date hereof, and other than collection matters, automobile
liability claims, workers' compensation claims (with respect to
claims relating to Australia, this term shall refer to claims
brought under the Workplace Injury Management and Workers
Compensation Act of 1998 (NSW), Workcover Queensland Act of 1996
(QLD) or equivalent state legislation) and other matters that
individually and collectively are not material and that arise in
the ordinary course of business, there is no Action pending
(including current actions) or, to the Knowledge of ConAgra,
threatened against any Acquired Company or any of its properties,
assets or Businesses, nor to the Knowledge of ConAgra are there
any investigations or prosecutions of any Acquired Company or any
of its directors, officers, key employees, properties, assets or
Businesses pending (including current investigations or
prosecutions) or threatened by or before any arbitrator or
Governmental Authority. Except as set forth on Schedule 7.12, as
of the date hereof, and other than collection matters, automobile
liability claims, workers' compensation claims and other matters
that individually and collectively are not material and that
arise in the ordinary course of business, there is no judgment,
decree, injunction, order, determination, award, finding or
letter of deficiency of any Governmental Authority or arbitrator
outstanding against any Acquired Company or any of its
properties, assets or Businesses. Except as set forth on Schedule
7.12, as of the date hereof, there is no Action pending
(including current actions) or, to the Knowledge of ConAgra,
threatened against any Acquired Company relating to the
transactions contemplated by this Agreement and the other
Transaction Documents. Except as set forth on Schedule 7.12, as
of the date hereof, there are no material unfunded settlements or
other settlements or letters of commitment or conciliation
agreements that any Acquired Company has entered into with any
party, including any Governmental Authority.
7.13. Compliance with Laws.
7.13.1. Except as set forth on Schedule 7.13.1, the Businesses have
been conducted in compliance with all Laws in all material
respects (other than non-compliance with Laws that has been
corrected prior to the date hereof and for which the Acquired
Companies have no further Liability under any Laws).
7.13.2. Schedule 7.13.2 lists all material licenses, permits,
permissions or authorizations issued to any Acquired Companies by
any Governmental Authority and currently held by it. Such
licenses, permits, permissions and authorizations, and all
applications for modification, extension or renewal thereof or
for new licenses, permits, permissions or authorizations are
collectively referred to herein as the "Licenses." Schedule
7.13.2 lists the legally authorized holder(s) of the Licenses,
each of which is in full force and effect. Each Acquired Company
has duly obtained all material licenses, permits, permissions and
authorizations necessary for the conduct of the Businesses in the
ordinary course, consistent with past practice. To the Knowledge
of ConAgra, except as set forth on Schedule 7.13.2, the
Businesses have been operated in all material respects in
accordance with the terms of the Licenses. As of the date hereof,
there are no proceedings pending or, to the Knowledge of ConAgra,
threatened with respect to any Acquired Company, that reasonably
may be expected to result in the revocation, material adverse
modification, non-renewal or suspension of any of the Licenses,
the denial of any pending applications for Licenses, the issuance
against any Acquired Company of any cease and desist order, or
the imposition of any administrative actions by any Governmental
Authority with respect to the Licenses. Except as set forth on
Schedule 7.13.2, the consummation of the transactions
contemplated by this Agreement will not result in the termination
of any License or require any Acquiring Company or Acquired
Company to replace or amend any License.
7.13.3. The provisions of this Section 7.13 shall not apply to the
subject matter of Sections 7.16, 7.17 and 7.18.
7.14.Material Contracts. Schedule 7.14 lists each of the Company
Material Contracts required to be transferred pursuant to Section
9.2.2. Schedule 7.14 lists, with regard to the Acquired Companies
or Company Employees, each oral or written (a) agreement,
contract, indenture, or other instrument relating to the
borrowing of money or the guarantee of any obligation for the
borrowing of money, (b) employment agreement with an individual
requiring payments of compensation in excess of $100,000 per
year, (c) material distributor, purchase or supply agreement
which is not terminable after the Closing by an Acquired Company
without Liability on thirty (30) days (or less) notice, (d) joint
venture or similar contract or agreement, (e) contract or
agreement that limits or purports to limit the ability of any
Acquired Company to compete in any line of business or in any
geographic area, (f) any material contract or agreement between
or among any Acquired Company on the one hand and ConAgra or its
other Subsidiaries on the other hand, (g) collective bargaining
or labor agreement, or industrial instrument, (h) lease of real
property pursuant to which any Acquired Company is required to
pay or is entitled to receive (x) consideration in excess of
$50,000 in any calendar year after December 31, 2001, or (y)
consideration in excess of $250,000 in the aggregate over the
remaining term of such lease (collectively, the "Leases"), or (i)
other material contract, agreement or arrangement, entered into
other than in the ordinary course of business. The contracts
required to be so listed pursuant to this Section 7.14 or
pursuant to Section 7.17 are collectively referred to herein as
the "Company Material Contracts." Each Company Material Contract
is a valid and binding obligation of the Acquired Company that is
a party thereto or otherwise bound thereby, and is in full force
and effect without further amendment. Except as set forth on
Schedule 7.14, the Acquired Company that is bound by each Company
Material Contract, and, to the Knowledge of ConAgra, each other
party thereto, is not (with or without lapse of time or the
giving of notice, or both) in material breach or default
thereunder. In respect to Company Material Contracts to be
assigned pursuant to Section 9.2.2, the assignor is bound by each
such Company Material Contract and, to the Knowledge of ConAgra,
each other party thereto, is not (with or without lapse of time
or the giving of notice, or both) in material breach or default
thereunder. No Acquired Company has received (i) any notice,
written or otherwise, of default by the Acquired Company under
any Company Material Contract or (ii) any notice, written or
otherwise, that any other party to any such Company Material
Contract has terminated or cancelled, or intends to terminate or
cancel, such contract. Schedule 7.14 identifies, as to each
Company Material Contract listed thereon, whether (A) the consent
or the approval of any other party thereto is required in order
for such Company Material Contract to continue in full force and
effect upon the consummation of the transactions contemplated
hereby and by the other Transaction Documents, (B) such Company
Material Contract can be cancelled by the other party without
Liability to such other party due to the consummation of the
transactions contemplated in the Transaction Documents or (C) a
right of first refusal, right of first offer, right of redemption
or similar right or obligation would be triggered due to the
consummation of the transactions contemplated hereby and by the
other Transaction Documents. A copy of each written Company
Material Contract and a description of each oral Company Material
Contract has been made available to Acquisition LP. No Acquired
Company has any obligation for borrowed funds other than as
reflected in the Financial Statements and except as contemplated
herein. Each Acquired Company has valid, binding, and enforceable
leasehold interests in and to the properties covered under lease
that is a Company Material Contract, free and clear of all Liens.
The Leases are not subject to any payment default or other
material default.
7.15. Related Party Transactions.
7.15.1. Schedule 7.15.1 sets forth a description of all material
services provided by ConAgra or its Subsidiaries (other than the
Acquired Companies) to the Acquired Companies, as well as a
description of material sales or purchase relationships between
an Acquired Company on the one hand, and ConAgra or its other
Subsidiaries on the other.
7.15.2. No Acquired Company nor any directors, officers, partners,
agents or employees thereof have (i) used any company funds for
unlawful contributions, gifts, entertainment or other unlawful
expenses relating to political activity, (ii) made any unlawful
payment to foreign or domestic government officials or employees
or to foreign or domestic political parties or campaigns from
corporate funds or violated any provision of the Foreign Corrupt
Practices Act of 1977, as amended, or (iii) made any other
unlawful payment.
7.15.3. Except as set forth on Schedule 7.15.3, to the Knowledge of
ConAgra, none of the directors, officers, partners, agents or
employees of any Acquired Company (i) owns, directly or
indirectly, any significant interest in, or is a director,
officer, partner, agent or employee of, any Person that is a
competitor, lessor, lessee or customer of, or supplier of goods
or services to, the Businesses, owns directly or indirectly, in
whole or in part, any real property, leasehold interests or other
property, the use of which is necessary for the Businesses, or
(ii) has sold to, or purchased from, any Acquired Company any
assets or property for aggregate consideration in excess of Ten
Thousand United States Dollars ($10,000) since May 27, 2001.
7.16. Labor Relations.
7.16.1. Schedule 7.16.1 lists each collective bargaining agreement or
other collective labor contract or industrial instrument to which
any Acquired Company is a party. All such collective bargaining
agreements or other collective labor contracts or industrial
instruments have been duly ratified, certified or approved.
Except for those unions which are parties to one or more of the
listed collective bargaining agreements or as otherwise listed on
Schedule 7.16.1, (i) no Acquired Company has agreed to recognize
any union or other collective bargaining representative; and (ii)
as of the date hereof, no union or other collective bargaining
representative has been certified as the exclusive bargaining
representative of any of its employees. All employees covered by
such collective bargaining agreements or other collective labor
contracts or industrial instruments are employees of an Acquired
Company as of immediately prior to the Closing.
7.16.2. Except as set forth on Schedule 7.16.2, as of the date hereof,
there are no pending (including current) (i) labor strikes,
slowdowns, lockouts, representation or certification campaigns,
work stoppages or other forms of industrial action with respect
to employees of any Acquired Company or to ConAgra's Knowledge,
threatened against or affecting any Acquired Company, (ii)
material grievance or arbitration proceedings, decisions, letter
agreements or settlement agreements arising out of collective
bargaining agreements to which an Acquired Company is a party or
otherwise bound or (iii) material unfair labor practices or
unfair labor practice charges or complaints before the National
Labor Relations Board or other Governmental Authority responsible
for regulating labor relations initiated against an Acquired
Company or, to the Knowledge of ConAgra, threatened against any
Acquired Company.
7.16.3. Except as set forth on Schedule 7.16.3, each Acquired Company
is and has been since May 27, 2001, in material compliance with
all applicable Laws respecting labor, employment, industrial
relations and employment practices, including, without
limitation, Laws (including Australian industrial awards and
agreements) regarding terms and conditions of employment, wages
and hours, equal employment opportunity, affirmative action,
employee benefits, plant closing and mass layoff, occupational
safety and health, immigration and workers' compensation
(collectively, the "Labor Laws") (other than non-compliance with
Labor Laws that has been corrected prior to the date hereof and
for which the Acquired Companies have no further Liability under
any Labor Laws).
7.16.4. Except as set forth on Schedule 7.16.4, as of the date hereof,
to the Knowledge of ConAgra, there are, with respect to each
Acquired Company, no charges, complaints or proceedings before
the Equal Employment Opportunity Commission, Department of Labor
or any other Governmental Authority responsible for regulating
employment practices, initiated, or, to the Knowledge of ConAgra,
threatened against any Acquired Company.
7.16.5. Except as set forth on Schedule 7.16.5, to the Knowledge of
ConAgra, all of the Acquired Companies are in material compliance
with all Laws relating to the employment of persons who are not
citizens of the country in which they are employed, and all Laws
relating to the documentation and recordkeeping of employees'
work authorization status.
7.16.6. As of the date hereof, and since May 27, 2001, there have not
been any plant closings, mass layoffs or other terminations of
employees of the Acquired Companies which would create any
obligations upon or Liabilities for the Acquired Companies under
the Worker Adjustment and Retraining Notification Act or similar
Laws.
7.17.Employee Plans. For purposes of this Section 7.17 and Article 6,
the term "Employee Plan" includes all pension, superannuation,
retirement, disability, medical, dental or other health insurance
plans, life insurance or other death benefit plans, profit
sharing, deferred compensation, stock option, bonus or other
incentive plans, vacation benefit plans or policies, severance or
redundancy plans or other employee benefit plans or arrangements,
including, without limitation, any "pension plan" ("Pension
Plan") as defined in Section 3(2) of ERISA, and any "welfare
plan," as defined in Section 3(1) of ERISA, and including foreign
plans not subject to ERISA, whether or not any of the foregoing
is funded, (a) to which any Acquired Company is a party or by
which it is bound; (b) with respect to which any Acquired Company
has made any payments or contributions; (c) to which any Acquired
Company may otherwise have any Liability; or (d) under which any
Company Employee is eligible to participate or benefit.
Notwithstanding the foregoing, an Australia Superannuation fund
that is not nor has ever been administered by an Australia
Acquired Company shall be considered an "Employee Plan" solely
for purposes of Sections 7.17.11, 7.17.12, 7.17.20 and 7.17.21.
True, correct and complete copies of each Employee Plan, along
with related trusts, insurance and group annuity contracts, have
been made available to Acquisition LP. The most recent Form 5500
for each Employee Plan for which such report is required to be
filed, and summary plan descriptions have also been made
available to Acquisition LP. As to each Pension Plan subject to
Title IV of ERISA, the most recent actuarial report and valuation
has been provided to Acquisition LP. "Employee Plan" shall not
include any government-sponsored employee benefit arrangements.
Each Employee Plan is set forth on Schedule 7.17(a); if an
Employee Plan is oral or has been orally modified or amended, a
summary of the material features of such Employee Plan or
amendment or modification is included on Schedule 7.17(a). Except
as set forth on Schedule 7.17(b):
7.17.1. No Acquired Company or Acquiring Company is a party to or
otherwise bound by or subject to any Liability under any oral or
written agreement, plan or arrangement with any officer, director
or management employee of an Acquired Company (i) the benefits of
which are contingent, or the terms of which are materially
altered, upon, or result from, the occurrence of a transaction
involving an Acquired Company of the nature of any of the
transactions contemplated by the Transaction Documents, (ii)
providing Stay Bonuses, (iii) providing severance benefits or
other benefits after the termination of employment or other
contractual relationship regardless of the reason for such
termination and regardless of whether such termination is before
or after a change of control, (iv) under which any person may
receive payments not deductible under Section 280G of the Code or
subject to the tax imposed by Section 4999 of the Code, or (v)
any of the benefits of which may be increased, or the vesting of
benefits of which may be accelerated, by the occurrence of any of
the transactions contemplated by the Transaction Documents or the
value of any of the benefits of which may be calculated on the
basis of any of the transactions contemplated by the Transaction
Documents, except as required by Sections 6.4 and 6.5 of this
Agreement.
7.17.2. The Acquired Companies, each Employee Plan, and the
administrator and fiduciaries of each Employee Plan have complied
in all material respects with all applicable legal requirements
governing each Employee Plan. No lawsuits, actions, claims (other
than routine claims for benefits) or complaints to, or by, any
Person, are pending (including current lawsuits, actions, claims
or complaints) or, to ConAgra's Knowledge, threatened with
respect to any Employee Plan.
7.17.3. No Acquired Company, Employee Plan, or administrator or
fiduciary of any Employee Plan has taken any action, or failed to
take any action, that could subject it, him, her or any other
Person to any Liability for any excise tax or for any breach of
fiduciary duty with respect to or in connection with any Employee
Plan.
7.17.4. No Acquired Company, Employee Plan, administrator or fiduciary
of any Employee Plan, or any other Person has any Liability to
any plan participant, beneficiary or other Person under any
provision of ERISA or any other applicable Law by reason of any
payment of benefits or other amounts or failure to pay benefits
or any other amounts, or by reason of any credit or failure to
give credit for any benefits or rights (such as, but not limited
to, vesting rights) with respect to benefits under or in
connection with any Employee Plan. No Acquired Company is in
arrears with respect to any contributions under any Employee
Plan.
7.17.5. With respect to any employee benefit plan, within the meaning
of Section 3(3) of ERISA, which is sponsored, maintained or
contributed to, or which has been sponsored, maintained or
contributed to within six years prior to the Closing, by the
Acquired Companies or any Person under common control with the
Acquired Companies within the meaning of Sections 414(b), (c) or
(m) of the Code or section 4001 of ERISA ("Commonly Controlled
Entity"), (a) no withdrawal Liability, within the meaning of
Section 4201 of ERISA, has been incurred by a Commonly Controlled
Entity, which withdrawal Liability has not been satisfied; (b) no
Liability to the Pension Benefit Guaranty Corporation has been
incurred by any Commonly Controlled Entity, which Liability has
not been satisfied; (c) no accumulated funding deficiency,
whether or not waived, within the meaning of Section 302 of ERISA
or Section 412 of the Code has been incurred; and (d) all
contributions (including installments) to such plan required by
Section 302 of ERISA and Section 412 of the Code have been timely
made.
7.17.6. No Employee Plan is intended to provide, at any time, retiree
medical or retiree life insurance benefits to any Company
Employee who has not retired as of the date of this Agreement.
7.17.7. There is no matter pending (including current matters) (other
than routine qualification determination filings) with respect to
any Employee Plan before the Internal Revenue Service, the
Department of Labor or the Pension Benefit Guaranty Corporation.
7.17.8. Except with respect to the acceleration of vesting as required
by this Agreement, the execution and delivery of this Agreement
and the consummation of the transactions contemplated hereby will
not create or give rise to any additional vested rights or
service credit under, require any greater contribution to, or
require payment of any greater benefit from, any Employee Plan.
7.17.9. No Acquired Company is a participating employer in a
Multiemployer Plan.
7.17.10. No events have occurred which could result in withdrawal
Liability under any Multiemployer Plan to which contributions are
or have been made on behalf of Company Employees, or to which
contributions have been made on behalf of employees (current or
former) of Acquired Companies, which withdrawal Liability has not
been satisfied. No withdrawal Liability would be owed by ConAgra,
its Affiliates or any Acquired Company to any Multiemployer Plan
to which contributions are made on behalf of Company Employees if
contributions on behalf of Company Employees ceased immediately
before the consummation of the transactions contemplated by this
Agreement.
7.17.11. All accrued obligations of each Acquired Company for payments
by it to trust or other funds or to any governmental or
administrative agency, with respect to pension benefits,
unemployment compensation benefits, social security benefits,
superannuation funds, sick leave, long service leave or any other
benefits for employees of such Acquired Company have been paid or
adequate accruals therefor have been made in the Financial
Statements, and none of the foregoing has been rendered not due
by reason of any extension, whether at the request of an Acquired
Company or otherwise.
7.17.12. All obligations of each Acquired Company with respect to
Company Employees (whether or not such Company Employees are
employed by an Acquired Company prior to Closing) for salaries,
superannuation, vacation and holiday pay, sick leave, long
service leave, bonuses and other forms of compensation which are
or were payable to its officers, directors or other employees
have been paid or adequate accruals therefor have been made in
the Financial Statements.
7.17.13. Each Acquired Company is in material compliance with the
requirements of Sections 162(k) (to the extent applicable prior
to its amendment by the Technical and Miscellaneous Revenue Act
of 1988) and 4980B of the Code and Section 601 of ERISA.
7.17.14. Except as required by the collective bargaining agreements
set forth on the Disclosure Schedule, each Employee Plan
sponsored by an Acquired Company, or from which the Acquired
Company might reasonably be expected to take a spinoff of assets
and Liabilities, may be unilaterally amended and terminated in
its entirety without Liability except as to benefits accrued
thereunder prior to such amendment or termination.
7.17.15. No Employee Plan provides that payments made pursuant to such
Employee Plan may or shall be made in securities of any Acquired
Company or any Commonly Controlled Entity, and no trust
maintained pursuant to any Employee Plan holds any such
securities.
7.17.16. Each Employee Plan that is a Pension Plan is qualified under
Section 401(a) of the Code, and the trust or trusts maintained in
connection with such Employee Plan is or are exempt from tax
under Section 501(a) of the Code. A favorable IRS determination
letter as to the qualification under the Code has been received
for each such plan and made available to Acquisition LP.
7.17.17. No Liability under Subtitle C or D of Title IV of ERISA has
been or is expected to be incurred with respect to any Employee
Plan which is a Pension Plan but which is not a Multiemployer
Plan. Other than the Swift Independent Packing Pension Plan for
Nonsalaried Employees, on a termination basis, there is no
underfunding with respect to any such Employee Plan.
7.17.18. None of the Acquired Companies sponsors a Pension Plan.
7.17.19. None of the Acquired Companies sponsors or has any Liability
with respect to any Nonqualified Plan.
7.17.20. Other than amounts whose quantum has been disclosed in
writing to Acquisition LP, the only contributions or payments
which any Australian Acquired Company pays or is obligated to pay
to any Employee Plan in respect of any Company Employee (for
example, under any trust deed, industrial award or agreement or
under any contract of employment) is the minimum amount required
to be contributed by the Australian Acquired Company in order for
it to avoid being liable to pay the superannuation guarantee
charge (within the meaning of the Superannuation Guarantee
(Administration) Act 1992 of the Commonwealth of Australia) in
respect of that Company Employee. In this and succeeding
sub-paragraphs, "Australian Acquired Company" means an Acquired
Company which is incorporated under the Corporations Act 2001
(Australia) or which is registered under that Act to carry on
business in a State or Territory in that jurisdiction.
7.17.21. No Australian Acquired Company is now or has ever been the
trustee of any Employee Plan.
7.18.Environmental. Except as set forth on Schedule 7.18 and except
as expressly disclosed in any Environmental Site Assessments:
7.18.1. The real property and facilities owned, operated, and leased
by the Acquired Companies and the operations of the Acquired
Companies thereon comply in all material respects with, and
(other than non-compliance with Environmental Laws that has been
corrected and for which the Acquired Companies have no further
Liability under Environmental Laws) have at all times complied in
all material respects with, all Environmental Laws.
7.18.2. No judicial proceedings are pending or, to the Knowledge of
ConAgra, threatened against any Acquired Company alleging the
violation of any Environmental Laws, and there are no
administrative proceedings pending or, to the Knowledge of
ConAgra, threatened against any Acquired Company, alleging the
violation of any Environmental Laws and no notice from any
Governmental Authority or any private or public person has been
received by any Acquired Company claiming any violation of any
Environmental Laws in connection with any real property or
facility owned, operated or leased by any Acquired Company, or
requiring any remediation, clean-up, modification, repairs, work,
construction, alterations or installations on or in connection
with any real property or facility owned, operated or leased by
any Acquired Company under any Environmental Laws and that have
not been complied with or otherwise resolved to the satisfaction
of the party giving notice.
7.18.3. Schedule 7.18.3(a) lists all material permits, registrations,
licenses, authorizations and similar instruments ("Environmental
Permits") required to be obtained or filed by each Acquired
Company under any Environmental Laws in connection with its
operations, including, without limitation, those activities
relating to the generation, use, storage, treatment, disposal,
release or remediation of Hazardous Materials. All Environmental
Permits have been duly obtained or filed, and each Acquired
Company is in compliance and at all times has complied in all
material respects with the terms and conditions of all such
Environmental Permits; and, except as set forth on Schedule
7.18.3(b), the consummation of the transactions contemplated by
this Agreement will not result in the termination of any
Environmental Permits or require any Acquiring Company or
Acquired Company to replace or amend any Environmental Permit.
7.18.4. All Hazardous Materials used or generated by any Acquired
Company or any of its predecessors on, in, or under any of the
owned, operated or leased real property or facilities are and
have at all times been generated, stored, used, treated, disposed
of and released by such persons or on their behalf in such manner
as not to result in any material Environmental Costs or
Liabilities.
7.18.5. There are not now on, in or under any property or facilities
owned, leased, or operated by any Acquired Company any Hazardous
Materials that are in a condition that materially violates any
Environmental Law or that reasonably could be expected to require
material remediation under any Environmental Laws and there are
not now, on, in or under property or facilities previously owned,
leased, or operated by any Acquired Company any Hazardous
Materials that were disposed of during the ownership of, lease
of, or operation by such Acquired Company and that are in a
condition that materially violates any Environmental Law or that
reasonably could be expected to require material remediation
under any Environmental Law.
7.18.6. Acquisition LP has been given access to review all reports,
surveys and site assessments of which ConAgra has Knowledge and
possession or access to that relate to environmental
investigations, surveys, audits or assessments that have been
conducted and relate to any of the Businesses or properties
previously or currently owned (including, without limitation,
properties to be transferred hereunder) by any of the Acquired
Companies.
7.18.7. No Acquired Company has received any notification from any
source advising such Acquired Company that: (A) it is a
potentially responsible party under CERCLA or any other
Environmental Laws; (B) any real property or facility currently
or previously owned, operated, or leased by it is identified or
proposed for listing as a federal National Priorities List
("NPL") (or state-equivalent) site or a Comprehensive
Environmental Response, Compensation and Liability Information
System ("CERCLIS") list (or state-equivalent) site; and (C) any
facility to which it has every transported or otherwise arranged
for the disposal of Hazardous Substances is identified or
proposed for listing as an NPL (or state-equivalent) site or
CERCLIS (or state-equivalent) site.
7.18.8. Except as set forth on Schedule 7.18.8, to ConAgra's Knowledge
the average daily flow of process wastewater generated at any
real property or facilities currently owned by any of the
Acquired Companies (including those that are to be transferred to
the Acquired Companies pursuant to Sections 2.1.6 or 2.1.17) does
not constitute more than ten percent (10%) of the average daily
flow of influent wastewater at any "publicly owned treatment
works" (as that term is defined in 40 C.F.R. ss. 403.3(o)) to
which such wastewater is delivered. Except as set forth on
Schedule 7.18.8, to the Knowledge of ConAgra, each publicly owned
treatment works treating wastewater generated from such real
property or facilities is in compliance in all material respects
with such publicly owned treatment work's current wastewater
discharge permit. Except as set forth on Schedule 7.18.8, in
connection with the Businesses, other than authorizations under
which wastewater generated by an Acquired Company is discharged
to a public owned treatment works, neither ConAgra nor any
Acquired Company has agreed or been requested to, nor, to the
Knowledge of ConAgra, is any Acquired Company expected to be
requested to, enter into any enforceable commitment or guarantees
regarding the use of or financing of any publicly owned treatment
works.
7.18.9. (i) "Environmental Laws" mean all currently existing
foreign, federal, state and local laws, statutes, codes,
ordinances, rules, regulations, orders, decrees,
determinations, common law, judgments or binding agreements
issued, promulgated or entered into by or with any
Governmental Authority, relating to pollution, the
environment (including ambient air, surface water,
groundwater, land surface or subsurface strata), natural
resources and public or employee health and safety or
protection of human health as it relates to the environment,
including laws and regulations relating to Releases or
threatened Releases of Hazardous Materials, or otherwise
relating to the generation, manufacture, processing,
distribution, use, treatment, storage, transport, handling
of or exposure to Hazardous Materials, the Comprehensive
Environmental Response, Compensation and Liability Act of
1980, as amended ("CERCLA"), the Superfund Amendments and
Reauthorization Act of 1986, as amended, the Resource
Conservation and Recovery Act of 1976, as amended, the Clean
Air Act, as amended, the Federal Water Pollution Control
Act, as amended, The Oil Pollution Act of 1990, as amended,
the Safe Drinking Water Act, as amended, the Hazardous
Material Transportation Act, as amended, the Toxic
Substances Control Act, as amended, the Federal Insecticide
Fungicide and Rodenticide Act, the New South Wales
Contaminated Land Management Act of 1997, the New South
Wales Protection of the Environment Operations Act of 1997,
the New South Wales Environmental Planning and Assessment
Act of 1979, the New South Wales State Environmental
Planning Policy 30-Intensive Agriculture, the Queensland
Environmental Protection Act of 1994 and other environmental
conservation or protection Laws.
(ii) "Hazardous Materials" means (A) any hazardous materials,
hazardous wastes, hazardous substances, toxic wastes, and
toxic substances as those or similar terms are defined under
any Environmental Laws; (B) any asbestos or any material
which contains any hydrated mineral silicate, including
chrysolite, amosite, crocidolite, tremolite, anthophylite
and/or actinolite, whether friable or non-friable; (C) PCBs,
or PCB-containing materials or fluids; (D) radon; (E) any
other hazardous, radioactive, toxic or noxious substance,
material, pollutant, contaminant, constituent, or solid,
liquid or gaseous waste; (F) any petroleum, petroleum
hydrocarbons, petroleum products, crude oil and any
fractions or derivatives thereof, any oil or gas exploration
or production waste, and any natural gas, synthetic gas and
any mixtures thereof; (G) any substance that, whether by its
nature or its use, is subject to regulation under any
Environmental Laws or with respect to which any
Environmental Laws or Governmental Authority requires
environmental investigation, monitoring or remediation; (H)
any underground storage tanks, dikes, or impoundments as
defined under any Environmental Laws; and (I) brine.
(iii)"Release" means any release, spill, emission, leaking,
dumping, injection, pouring, deposit, disposal, discharge,
dispersal, leaching or migration into the environment
(including ambient air, surface water, groundwater, land
surface or subsurface strata) or within any building,
structure, facility or fixture.
(iv) "Environmental Costs or Liability" means any losses,
liabilities, obligations, damages, fines, penalties,
judgments, settlements, actions, claims, costs, expenses and
capital expenditures (including, without limitation,
reasonable fees, disbursements and expenses of legal
counsel, experts, engineers and consultants, and the costs
of investigation or feasibility studies and performance of
remedial or removal actions and cleanup activities) required
under any Environmental Laws, under any order existing prior
to the Closing, or under any contract (which shall include
the Dinmore Environment Management Programs) existing prior
to the Closing of the Company or its Subsidiaries with any
Governmental Authority or any private or public person
relating to environmental matters.
7.19.Brokers and Finders. Except for Gleacher & Co., neither ConAgra
nor any Acquiring Company or Acquired Company has employed any
investment banker, broker or finder or incurred or reasonably
expects to incur any Liability for any brokerage fees,
commissions or finders fees in connection with the transactions
contemplated by the Transaction Documents.
7.20.Insurance. The Acquired Companies have insurance policies in full
force and effect for such amounts as are sufficient for material
compliance with all requirements of Law and of all Company
Material Contracts. Set forth on Schedule 7.20 is a list of all
fire, liability and other forms of insurance and all fidelity
bonds held by or applicable to the Acquired Companies, or the
Businesses, setting forth, in respect of each such policy, the
policy name, policy number, carrier, term, type of coverage and
annual premium. Excluding insurance policies that have expired
and been replaced in the ordinary course of business, no
insurance policy has been canceled within the last two years and,
to ConAgra's Knowledge, no threat has been made to cancel any
insurance policy of any Acquired Company during such period.
Except as set forth on Schedule 7.20, all such insurance will
remain in full force and effect with respect to periods before
the Closing.
7.21. Sufficiency.
7.21.1. Except as set forth on Schedule 7.21.1 and except for the
services to be received pursuant to the Transition Services
Agreement, Risk Management Agreement, Cash Management Agreement
or By-Products Agreement, and except for the assets, systems and
personnel utilized by ConAgra or its Affiliates to provide the
services pursuant to the Transition Services Agreement, Risk
Management Agreement, Cash Management Agreement or By-Products
Agreement, upon consummation of the transactions contemplated in
the Transaction Documents, Holdco shall have (after giving effect
to the Armour Transition License Agreement and the Swift
Transition License Agreement) all the material personnel, assets,
properties and services necessary and presently utilized to
conduct the Businesses as presently conducted. Each Acquired
Company will have at the Closing good title to all of its assets
set forth on the Final Processing Closing Balance Sheet and the
Final Cattleco Closing Balance Sheet (other than the assets in
Sections 7.10 and 7.23 which shall be subject to the
representations and warranties set forth in those Sections) free
and clear of all Liens (other than permitted Liens described on
Schedule 7.23.1(a) and Schedule 7.23.1(b)).
7.21.2. [Intentionally Omitted]
7.22.No Activities. Since the date of its incorporation, no Acquiring
Company has incurred any Liabilities or otherwise engaged in any
activity or business other than as contemplated by this
Agreement.
7.23. Real Property.
7.23.1. Schedule 7.23.1(a) sets forth a list and description of all
material real property located in the United States owned in fee
by each Acquired Company or, as so designated in such Schedule,
will be owned by an Acquired Company on the Closing Date.
Schedule 7.23.1(b) sets forth a list and description of all
material real property located outside the United States owned in
fee by each Acquired Company or, as so designated in such
Schedule, will be owned by an Acquired Company on the Closing
Date. Each Acquired Company has, or, with respect to real
property to be transferred to an Acquired Company under Sections
2.1.6 and 2.1.17 prior to the Closing Date, will have as of the
Closing Date, good and marketable fee title to each such parcel
of real property described on Schedule 7.23.1(a) or Schedule
7.23.1(b) free and clear of all Liens, except those Liens listed
on Schedule 7.23.1(a) or Schedule 7.23.1(b) with respect to such
parcel. Schedule 7.14 sets forth a list and description of all
real property leased by or, with respect to leased real property
to be transferred to an Acquired Company under Section 2.1.6 or
2.1.17 prior to the Closing Date, will be leased by any Acquired
Company pursuant to a Company Material Contract.
7.23.2. To ConAgra's Knowledge, there are no material encroachments on
to any of the parcels of real property described on Schedule
7.23.1(b), other than those encroachments that would not
materially affect the value, use or enjoyment of such parcels,
and no improvement, structure or service on those parcels of real
property encroaches on to any adjoining land in a material
manner. No land has the benefit of any material unregistered
right or interest in or over or which burdens any part of the
parcels of real property described on Schedule 7.23.1(b). The
existing use of the parcels of real property described on
Schedule 7.23.1(b) is in all material respects the lawful use
permitted under any applicable planning legislation or other
similar zoning control vested in a competent authority and is not
temporary or personal. All material consents necessary for those
existing uses have been obtained and are subsisting. Each of the
buildings and other improvements on each of the parcels of real
property described on Schedule 7.23.1(b) is approved and
otherwise complies in all material respects with applicable Laws.
As used in this Section 7.23.2, the term "material" shall mean a
condition which, if uncured (or, when used in the context of a
benefit, if absent), presents a commercially unreasonable risk of
materially adversely affecting the current value of the affected
property or materially hindering or interrupting operations at
such property as currently conducted.
7.24.Product Recalls and Withdrawals. As of the date hereof, except as
set forth on Schedule 7.24, since April 1, 2000, there have been
no recalls or withdrawals of products produced or sold by any
Acquired Company.
7.25.Customers and Suppliers. Schedule 7.25 sets forth a list of (i)
the ten (10) largest customers of the Businesses based on sales
during the period May 28, 2001, through February 24, 2002 (and
through March 31, 2002, with respect to Australia Operating
Company), showing the approximate total sales to each such
customer during such periods and (ii) the ten (10) largest
suppliers of the Businesses based on purchases during the period
May 28, 2001, through February 24, 2002 (and through March 31,
2002, with respect to Australia Operating Company), showing the
approximate total purchases by the Businesses from each such
supplier during such periods. To the Knowledge of ConAgra, since
the Balance Sheet Date, there has not been any material adverse
change in the business relationship among the Acquired Companies
with any customer or supplier named on Schedule 7.25.
8. Representations and Warranties of Acquisition LP. Acquisition LP hereby
represents and warrants to ConAgra as set forth below. Except to the extent
that the provisions of a particular representation and warranty expressly
provide that it is made as of a specified date, each of the following
representations and warranties shall be made as of the date of this
Agreement and shall constitute continuing representations and warranties
made as of each date after the date of this Agreement prior to and
including the Closing Date.
8.1. Organization, Good Standing and Power. Acquisition LP is a
limited partnership duly organized and validly existing under the
laws of the State of Delaware and has the power to own, operate
and lease its properties and to carry on its business as now
being conducted. Booth Creek Management Corporation and
Affiliates of Hicks, Muse, Tate & Furst Incorporated own all the
outstanding equity interests in Acquisition LP. Acquisition LP
has all requisite power and authority to enter into the
Transaction Documents to which it is a party and to consummate
the transactions contemplated hereby and thereby. The execution
and delivery of the Transaction Documents by Acquisition LP and
the consummation by Acquisition LP of the transactions
contemplated hereby and thereby have been duly authorized by all
necessary action on the part of Acquisition LP. This Agreement
has been, and at the Closing each of the other Transaction
Documents to which Acquisition LP is a party will be, duly
executed and delivered by Acquisition LP. This Agreement
constitutes and, upon execution and delivery thereof, the other
Transactions Documents to which Acquisition LP is a party will
constitute, the valid and binding obligations of Acquisition LP,
enforceable against it in accordance with its respective terms,
subject to applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and similar laws affecting
creditors' rights and remedies generally and subject, as to
enforceability, to general principles of equity.
8.2. Government Authorization. The execution, delivery and performance
by Acquisition LP of the Transaction Documents to which it is a
party requires no consent, approval, order or authorization of,
or registration, declaration or filing with, any Governmental
Authority other than (a) the filing of a premerger notification
report under the HSR Act, (b) application requirements, if any,
of the Securities Act and state securities or blue sky laws; and
(c) compliance with any applicable non-United States laws
intended to prohibit, restrict, limit or regulate actions having
the purpose or effect of monopolization or restraint of trade or
regulation of foreign investment, including, without limitation,
FATA.
8.3. Effect of Agreement. The execution, delivery and performance of
the Transaction Documents by Acquisition LP and the consummation
by Acquisition LP of the transactions contemplated hereby and
thereby will not, with or without the giving of notice or the
lapse of time or both, assuming compliance with the matters
referred to in Section 8.2, (i) violate, conflict with, or result
in any breach of any provision of its certificate of limited
partnership or any partnership, voting or similar agreement, or
(ii) violate any Law applicable to Acquisition LP.
8.4. Brokers and Finders. Except in respect to Hicks, Muse & Co.
Partners, L.P. and Booth Creek Management Corporation,
Acquisition LP has not employed any investment banker, broker or
finder or incurred or reasonably expects to incur any Liability
for any brokerage fees, commissions or finders fees in connection
with the transactions contemplated by the Transaction Documents.
8.5. Financing. Acquisition LP has provided to ConAgra a true and
correct copy of (i) the senior credit facilities commitment
letter, dated May 20, 2002, from Citicorp North America, Inc.,
Salomon Smith Barney Inc., JPMorgan Chase Bank and J.P. Morgan
Securities Inc., a copy of which is attached hereto as Exhibit
8.5(a) (the portions thereof relating to the Senior Credit
Facilities (as defined therein) shall be referred to as the
"Senior Bank Commitment Letter" and the portions thereof relating
to the Senior Bridge Facility (as defined therein) shall be
referred to as the "Bridge Commitment Letter"), (ii) the
engagement letter dated May 20, 2002, by and among Salomon Smith
Barney Inc., J.P. Morgan Securities Inc. and Acquisition LP, a
copy of which is attached hereto as Exhibit 8.5(b) (the
"Engagement Letter"), (iii) the commitment letter from Fund V,
dated May 20, 2002 (the "Fund V Commitment Letter"), a copy of
which is attached hereto as Exhibit 8.5(c), and (iv) the
Subscription Agreement from Greeley Investments, LLC ("Gillco"),
dated May 20, 2002 (the "Gillco Subscription Agreement"), a copy
of which is attached hereto as Exhibit 8.5(d) (the Fund V
Commitment Letter and the Gillco Subscription Agreement are
herein collectively referred to as the "Commitment Letters"). As
provided therein, the Senior Bank Commitment Letter is assignable
by Acquisition LP to U.S. Acquisition Co. and Australia
Acquisition Co. As provided therein, the Bridge Commitment Letter
is assignable by Acquisition LP to U.S. Acquisition Co. The
Commitment Letters have not been amended and are in full force
and effect.
8.6. Investment Purpose. Acquisition LP is purchasing the Acquisition
LP Holdco Stock for investment only and not with a view to resale
or other disposition. Acquisition LP acknowledges that the
Acquisition LP Holdco Stock is not being registered under the
securities laws of the United States or any state thereof or any
foreign jurisdiction in reliance upon one or more exemptions from
the registration requirements made available under such laws.
9. Covenants.
9.1. Covenants of ConAgra.
9.1.1. Conduct of Business. During the period from the date hereof to
the Closing Date, unless Acquisition LP shall otherwise consent
in writing (which consent will not be unreasonably withheld) or
as contemplated by this Agreement, ConAgra covenants and agrees
that ConAgra shall cause the Acquiring Companies and Acquired
Companies (with respect to any covenant of ConAgra relating to
either of Better Beef LLC or Colorado Feed LLC, to the extent
such company is not Controlled by ConAgra, ConAgra shall use its
reasonable efforts to comply with such covenant) to (a) conduct
and operate their business in all material respects in the usual
and ordinary course consistent with past practice, (b) use their
reasonable commercial efforts to preserve intact their business
organizations and preserve their relationships with customers,
suppliers and others having business dealings with them, and (c)
use their reasonable commercial efforts to keep available the
services of their present officers and key employees and the
individuals listed on Exhibit 9.1.1 ("Management"). Without
limiting the generality of the foregoing, unless Acquisition LP
shall otherwise consent in writing (which consent will not be
unreasonably withheld) or as otherwise contemplated by this
Agreement, during the period from the date hereof to the Closing
Date, ConAgra shall cause each Acquiring Company and Acquired
Company (with respect to any covenant of ConAgra relating to
either Better Beef LLC or Colorado Feed LLC, to the extent such
company is not Controlled by ConAgra, ConAgra shall use its
reasonable efforts to comply with such covenant) not to (except
as otherwise contemplated herein):
(a) adopt or propose any change in its Charter Documents;
(b) except as set forth on Exhibit 9.1.1(b), authorize for
issuance, issue, deliver, sell, pledge, dispose of, encumber
or grant any Lien on, or authorize or propose the issuance,
delivery, sale, pledge, disposition of, encumbrance or grant
of any Lien on, any shares of its capital stock, or other
voting securities or any securities convertible into or
exercisable for, or any rights, warrants, commitments or
options to acquire, any such securities or voting securities
or any other ownership interest (or interest the value of
which is derived by reference to any of the foregoing);
(c) acquire or agree to acquire by merging or consolidating
with, or by purchasing a substantial equity interest in or a
substantial portion of the assets of, or by any other
manner, any business or any Person or division thereof or
otherwise acquire or agree to acquire any assets (other than
an acquisition which is not material in nature to the
operation of the Businesses taken as a whole);
(d) sell, abandon or otherwise dispose of, or pledge, mortgage
or otherwise subject to any Lien any material assets of an
Acquired Company or the Businesses other than the sale or
disposition of its products or inventory in the ordinary
course of business consistent with past practice;
(e) make any change in any method of accounting or accounting
practice, except as required by applicable Law or to comply
with GAAP;
(f) split, combine, divide, distribute or reclassify any shares
of its capital stock (or other ownership interests),
declare, pay or set aside for payment any dividend or other
distribution in respect of its capital stock (or other
ownership interests) (whether in cash, shares of stock or
otherwise), or directly or indirectly, redeem, purchase or
otherwise acquire any shares of its capital stock (or other
ownership interests) or other securities;
(g) incur or assume any indebtedness for borrowed funds
(including obligations in respect of capital leases),
assume, guarantee, endorse, or otherwise become liable or
responsible (whether directly, contingently, or otherwise)
for the obligations of any other Person or make any loans,
advances or capital contributions to, or investments in, any
Person (other than (i) advances to employees in the ordinary
course of business and consistent with past practice, and
(ii) loans, advances or other indebtedness extended by
ConAgra or a Subsidiary thereof relating to the Feed Lot
Business and arising in the ordinary course of business);
(h) adopt or amend any Employee Benefit Plan or collective
bargaining agreement, or increase in any manner the
compensation or fringe benefits of any director, officer or
employee or pay any benefit other than pursuant to an
existing agreement (other than (i) the adoption or amendment
of the collective bargaining agreements resulting from
current negotiations relating to the Louisville, Kentucky
facility, and (ii) the increase of salaries or compensation
in the ordinary course of business, provided that there
shall be no increase in salary or compensation for the key
employees listed on Exhibit 9.1.1(h) hereto);
(i) make any material settlement of or compromise any material
Tax Liability, change any material Tax election or material
Tax method of accounting, or make any new material Tax
election or adopt any new material Tax method of accounting
that would adversely affect the Tax Liability of the
Acquired Companies for any period ending after the Closing
Date;
(j) pay or discharge any material claims or Liabilities
(absolute, accrued, asserted or unasserted, contingent or
otherwise), other than (x) with respect to the California
Kim Litigation or Korean Kim Litigation or (y) in the
ordinary course of business and consistent with past
practice; or fail to pay or otherwise satisfy (except if
being contested in good faith) any accounts payable, claims
or Liabilities on a basis, and within the time, consistent
with past practice;
(k) fail to maintain working capital in an amount materially
consistent with historical practices taking into
consideration business and market conditions;
(l) change in any material respect its existing practices and
procedures with respect to the collection of accounts
receivable;
(m) except as set forth on Exhibit 9.1.1(m), enter into any
agreement or contract that would constitute a Company
Material Contract if such were in force as of the date
hereof or amend or modify, in any material respect, any
Company Material Contract or obligation thereunder;
(n) permit any Acquiring Company to engage in any business
activity or incur any Liability, except as specifically
required by this Agreement;
(o) encourage any customer of the Businesses to purchase or
maintain an inventory of products with respect to the
Businesses at a level in excess of the level of inventory of
such products historically purchased or maintained by such
customer with the knowledge and intention that such action
would result in decreased orders by such customer after the
Closing as compared to the normal historical orders of such
customer; or
(p) agree or commit to do any of the actions prohibited by
paragraphs (a) through (o) of this Section 9.1.1.
9.1.2. Access to Information. During the period from the date hereof
until the Closing Date, ConAgra will, and will cause the Acquired
Companies (with respect to Better Beef LLC and Colorado Feed LLC,
to the extent such company is not Controlled by ConAgra, ConAgra
shall use its reasonable efforts to cause such companies) and
their respective employees, officers, auditors and agents to,
give Acquisition LP and its counsel, financial advisors,
accountants and other authorized representatives (except to the
extent not permitted under applicable Law as advised by counsel)
reasonable access during normal business hours to each Acquired
Company's (other than Colorado Feed LLC and Better Beef LLC) and
the Businesses' books and records and properties, plants and
personnel.
9.1.3. Interim Financial Information. Within fifteen (15) days
following the end of each month beginning with the month ending
May 2002, and prior to the Closing, ConAgra shall deliver to
Acquisition LP a copy of ConAgra's unaudited internally prepared
management report of each of (x) the Processing Companies and (y)
the Feed Lot Business for the month then ended, specifically
including the Senior Financial Officer Letters, consistent with
prior practice (collectively, the "Monthly Reports"). Within
thirty (30) days following the end of each fiscal quarter
beginning with the fiscal quarter ending May 2002, and prior to
the Closing, ConAgra shall deliver to Acquisition LP a copy of
ConAgra's unaudited internally prepared quarterly balance sheet
and income statement of each of (x) the Processing Companies and
(y) the Feed Lot Business for the quarter then ended
(collectively, the "Quarterly Statements"). Acquisition LP
acknowledges that the Monthly Reports are not and will not be
prepared in accordance with GAAP. The Quarterly Statements shall
be prepared in accordance with GAAP (except as disclosed therein
and except that the Quarterly Statements will contain no
footnotes and will be subject to year end adjustments).
9.1.4. Cash Management. During the period from the date hereof to the
Closing Date, U.S. Beef Company, U.S. Pork Company and their
respective Subsidiaries shall continue to participate in
ConAgra's cash management program. During the period from the
date hereof to the Closing Date, Australia Operating Company and
its Subsidiaries shall continue to participate in ConAgra's cash
management program. Subject to Sections 2.1.20 and 9.1.1(k), all
cash generated by U.S. Beef Company, U.S. Pork Company and their
respective Subsidiaries prior to the Effective Time, and all cash
generated by Australia Operating Company and its Subsidiaries
prior to the Closing, (including all lock box receipts) shall be
retained by ConAgra, except to the extent accrued as an asset on
the Final Processing Closing Balance Sheet (and taken into
account in calculating the Aggregate Consideration) or Final
Cattleco Closing Balance Sheet (and taken into account in
determining the Cattleco Stockholder Net Investment).
9.2. Covenants of Acquisition LP, Holdco and/or the Acquired
Companies.
9.2.1. Guarantees. Prior to the Closing, ConAgra shall use
commercially reasonable efforts to cause U.S. Acquisition Co. to
be substituted in all respects for ConAgra and its Affiliates
(other than the Acquired Companies), and cause ConAgra and its
Affiliates (other than the Acquired Companies) to be released,
effective as of the Closing or as soon as possible thereafter, in
respect of all obligations of ConAgra and its Affiliates (other
than the Acquired Companies) under each of the guarantees,
indemnities, bonding arrangements, letters of credit and letters
of comfort given by ConAgra or its Affiliates (other than the
Acquired Companies) for the benefit of the Acquired Companies
identified on Exhibit 9.2.1 hereto (the "Guarantees"). Except as
otherwise set forth in this Section 9.2.1, as of the Closing, all
Guarantees for which the substitution and release referred to in
the immediately preceding sentence has not been obtained as of
the Closing shall be terminated; provided, however, that
notwithstanding the foregoing, (i) the parties recognize that
each Guarantee relating to a hedge not settled as of the Closing
Date shall stay in place with respect to such hedge until such
hedge is settled and shall be subject to the indemnification
obligations of Holdco set forth below, and (ii) the Deed of Cross
Guarantee shall be terminated in accordance with Section 2.1.22.
If any such release cannot be obtained as to a Guarantee, after
the Closing, Holdco shall indemnify and hold the ConAgra
Indemnified Parties harmless from and against any Liability
relating to the Guarantee not released, and shall use its
commercially reasonable efforts to insure that no additional
obligations arise under the Guarantees not released after the
Effective Time. To the extent any provisions of this Section
9.2.1 conflict with or differ from provisions of the Transition
Services Agreement with respect to the subject matter of this
Section 9.2.1, the provisions of the Transition Services
Agreement shall control.
9.2.2. Contracts. The parties acknowledge that contracts relating to
the Business may have been originally entered into or are
currently in the name of ConAgra or its Affiliates. Such
contracts have been or, subject to Section 9.8, will be assigned
to the appropriate Acquired Company at or prior to Closing
pursuant to Sections 2.1.6 and 2.1.17. After the Closing, Holdco
shall indemnify and hold the ConAgra Indemnified Parties harmless
from and against all Liability under all such assigned contracts.
9.2.3. Debt Financing.
(a) Acquisition LP will use its commercially reasonable efforts
(including preparing the necessary offering circulars,
private placement memoranda, prospectuses, registration
statements or other offering documents or marketing
materials and negotiating definitive loan documentation
providing for funding conditions not materially more onerous
than those set forth in the Senior Bank Commitment Letter or
the Bridge Commitment Letter, as the case may be) in order
for (x) U.S. Acquisition Co. to consummate by the
Termination Date (i) the senior secured financing
contemplated by the Senior Bank Commitment Letter, (ii) the
sale of debt securities in an aggregate principal amount of
Four Hundred Million United States Dollars ($400,000,000)
(as such amount may be adjusted, as appropriate, as
contemplated by the Fee Letter), and (iii) if such debt
securities are not issued in such aggregate principal
amount, the bridge financing contemplated by the Bridge
Commitment Letter and (y) Australia Acquisition Co. to
obtain by the Termination Date the Australian financings
contemplated by the Senior Bank Commitment Letter; provided
that in no event shall Acquisition LP have any obligation
hereunder to proceed to the Closing under the terms of the
bridge loan contemplated by the Bridge Commitment Letter at
any time prior to the Termination Date. In the event that
either the Senior Bank Commitment Letter or the Bridge
Commitment Letter expires or is terminated for any reason,
Acquisition LP shall (A) promptly notify ConAgra of such
expiration or termination and the reasons therefore and (B)
use its commercially reasonable efforts, until the
Termination Date, to obtain alternate financing for the
transactions contemplated by this Agreement; provided,
however, that Acquisition LP shall not be required to obtain
alternate financing on terms materially less favorable to
the borrower thereunder than those set forth in the Senior
Bank Commitment Letter or the Bridge Commitment Letter, as
the case may be.
(b) If Acquisition LP requests, ConAgra shall reasonably
cooperate, shall cause Holdco and each Acquired Company to
reasonably cooperate, and shall instruct its independent
accountants to reasonably cooperate, at any time prior to
the Closing, and after the Closing, with respect to (i) the
senior secured financing contemplated by the Senior Bank
Commitment Letter, (ii) the sale of senior notes as
contemplated by the Engagement Letter in an aggregate
principal amount of Four Hundred Million United States
Dollars ($400,000,000) (as such amount may be adjusted, as
appropriate, as contemplated by the Fee Letter), (iii) if
such debt securities are not issued in such aggregate
principal amount, the bridge financing contemplated by the
Bridge Commitment Letter, (iv) the Australian financings
contemplated by the Senior Bank Commitment Letter, (v) if
the bridge financing contemplated by the Bridge Commitment
Letter is made, the private placement of debt securities,
the proceeds of which are to be used to refinance such
bridge loan, (vi) any shelf registration statement filed
following the Closing with respect to the Exchange
Securities (as defined in the Senior Bank Commitment Letter
and the Bridge Commitment Letter), and (vii) any
registration statement filed following the Closing relating
to a Registered Exchange Offer (as described in the Senior
Bank Commitment Letter and the Bridge Commitment Letter)
(including providing reasonable assistance in the
preparation of one or more offering circulars, private
placement memoranda, prospectuses, registration statements
or other offering documents or marketing materials relating
to a debt financing or any other filings that may be made
with the U.S. Securities and Exchange Commission in
connection therewith). Such cooperation shall include (A)
using reasonable commercial efforts to provide or cause to
be provided each of the historical financial statements
relating to the Businesses, the related "comfort" letters of
ConAgra's accountants thereon and the other materials set
forth in Exhibit 9.2.3(b), in each case on or before the
applicable date set forth in Exhibit 9.2.3(b); (B)
furnishing to its independent accountants such customary
management representation letters as such accountants may
reasonably require of ConAgra as a condition to its
execution of any required accountant's consents necessary in
connection with the delivery of any "comfort" letters
reasonably requested by the financing sources in connection
with the contemplated financings; (C) causing senior
management, representatives, advisors and appropriate
officers and members of the management team of ConAgra and
the Acquired Companies to participate, at the request of
Acquisition LP, and at such times and places as Acquisition
LP may request, in drafting meetings and other informational
meetings with potential lenders, presentations and other
activities in connection with the "road shows"; and (D)
taking such other actions within the control of ConAgra or
its Affiliates reasonably necessary to satisfy the
conditions precedent provided for in the Senior Bank
Commitment Letter, the Bridge Commitment Letter, and the
definitive documentation with respect to the Facilities (as
defined in the Senior Bank Commitment Letter and the Bridge
Commitment Letter), including, without limitation, actions
relating to obtaining or perfecting Liens, releasing Liens,
providing access to properties and assets for third party
appraisals, furnishing officers' certificates, obtaining
consents, establishing new lock-boxes and implementing a new
cash management system.
(c) The unaudited interim and/or audited historical financial
statements, if any, relating to the Businesses for periods
ending on or after May 27, 2001, and prior to the Closing
that are included in Exhibit 9.2.3(b), and any pro forma
financial statements that are included in Exhibit 9.2.3(b)
and are required to be provided or caused to be provided by
ConAgra in accordance with Section 9.2.3(b)(A) and which are
included in the offering memorandum relating to the initial
offering of the debt securities or the subsequent
registration statement registering the exchange or
refinancing of such debt securities shall be accompanied by
a certificate (the "Representation and Warranty
Certificate") in the form of Exhibit 9.2.3(c).
9.2.4. Equity Financing. Acquisition LP shall complete the purchase of
the equity interests in Holdco pursuant to the terms of the Fund
V Commitment Letter and the Gillco Subscription Agreement.
Acquisition LP shall not make any change in the terms thereof
without ConAgra's prior written consent, such consent not to be
unreasonably withheld.
9.3. Insurance Matters. Holdco acknowledges that the Acquired
Companies are covered by certain insurance policies and insurable
risk programs made available through ConAgra as described on
Exhibit 9.3. ConAgra shall provide that these policies and
insurable risk programs shall be continued for a ninety (90) day
period following June 1, 2002. Holdco shall use its reasonable
efforts to cause the Acquired Companies to implement their own
insurance policies and programs as of the Closing Date. ConAgra
shall use its reasonable efforts to assist Holdco in obtaining
any refunds payable in respect of any ConAgra policies or
programs that are cancelled as of the Closing Date. Subject to
the provisions of Section 9.7.4, with respect to any loss,
Liability or damage relating to, resulting from or arising out of
the conduct of the Businesses on or prior to the Closing Date for
which ConAgra would be entitled to assert, or cause any Affiliate
or other Person to assert, a claim for recovery under any policy
of insurance maintained by or for the benefit of ConAgra or any
Affiliate thereof in respect of the Businesses, at the request of
Holdco, (x) ConAgra shall use its reasonable efforts to assert,
or to assist Holdco or its Subsidiaries to assert, one or more
claims under such insurance covering such loss, Liability or
damage if neither Holdco nor any Subsidiary thereof is not itself
entitled to assert such claim, but ConAgra or an Affiliate
thereof is so entitled and (y) ConAgra shall provide Holdco with
access to any applicable insurance policies.
9.4. Approvals and Consents.
9.4.1. Subject to the terms and conditions herein provided and
applicable legal requirements, each of the parties hereto agrees
to use its commercially reasonable efforts to take, or cause to
be taken, all action, and to do, or cause to be done, and to
assist and cooperate with the other parties hereto in doing, as
promptly as practicable, all things necessary, proper or
advisable under applicable Laws to ensure that the conditions set
forth in Article 10 are satisfied and to consummate and make
effective the transactions contemplated by this Agreement.
9.4.2. ConAgra and Acquisition LP shall use their respective
reasonable best efforts to obtain as promptly as practicable all
consents, waivers, approvals, authorizations or permits of, or
registration or filing with or notification to, any Governmental
Authority or any other Person required in connection with, and
waivers of any violations, defaults or breaches that may be
caused by, such party's consummation of the transactions
contemplated by this Agreement.
9.4.3. Each party hereto shall promptly inform the other of any
material communication from the FTC, the DOJ, FIRB or any other
Governmental Authority regarding any of the transactions
contemplated by this Agreement. If any party hereto or any
Affiliate thereof receives a request for additional information
or documentary material from any such Governmental Authority with
respect to the transactions contemplated by this Agreement, then
such party shall use best efforts to cause to be made, as soon as
reasonably practicable and after consultation with the other
party, an appropriate response in compliance with such request.
9.4.4. Without limiting the generality of the foregoing, Acquisition
LP and ConAgra will use their reasonable best efforts to obtain
all authorizations or waivers required under the HSR Act and FATA
to consummate the transactions contemplated hereby, including,
without limitation, making all filings with the Antitrust
Division of the DOJ, the FTC and FIRB required in connection
therewith (the initial filings to occur no later than five (5)
business days following the execution and delivery of this
Agreement) and responding as promptly as practicable to all
inquiries received from the DOJ, the FTC or FIRB for additional
information or documentation. Subject to reimbursement by Holdco
at the Closing pursuant to Section 15.3, ConAgra and Acquisition
LP shall pay in equal amounts all filing fees associated with the
above referenced filings. Each of Acquisition LP and ConAgra
shall furnish to the other such necessary information and
reasonable assistance as the other may request in connection with
its preparation of any filing or submission which is necessary
under the HSR Act or FATA. Acquisition LP and ConAgra shall keep
each other apprised of the status of any communications with, and
any inquiries or requests for additional information from, the
FTC, the DOJ and FIRB.
9.4.5. No Solicitation. Prior to the Closing, neither Acquisition LP
nor its Affiliates or representatives will, directly or
indirectly, solicit or initiate any inquiries or the making of
any proposal with respect to any purchase or acquisition of, or
joint venture or similar transaction involving, any business
conducted in the United States or Australia that competes with
the Businesses or negotiate, explore or otherwise engage in
discussions with any person (other than ConAgra and its
representatives) with respect to any such transaction.
9.5. Charter Documents. During the six (6) year period following the
Closing Date, Holdco shall not, and shall cause the Acquired
Companies not to, amend, alter or otherwise modify their
respective Charter Documents in any manner that would adversely
affect or otherwise prejudice the indemnity rights or limitations
on Liability of any Person who may be entitled to indemnification
by the Acquired Companies. The Persons to whom this Section 9.5
applies shall be third party beneficiaries of this Section 9.5,
each of whom may enforce the provisions of this Section 9.5.
9.6. Investigation and Agreement by the Parties; No Other
Representations or Warranties.
(a) Acquisition LP, on the one hand, and ConAgra, on the other
hand, each acknowledge and agree that they have made their
own inquiry and investigation into, and, based thereon, have
formed an independent judgment concerning, the other party
and its Subsidiaries and their businesses and operations,
and such party has requested such documents and information
from the other party as such party considers material in
determining whether to enter into this Agreement and to
consummate the transactions contemplated in this Agreement.
Acquisition LP, on the one hand, and ConAgra, on the other
hand, acknowledge and agree that they have had an
opportunity to ask all questions of and receive answers from
the other party with respect to any matter such party
considers material in determining whether to enter into this
Agreement and to consummate the transactions contemplated in
this Agreement. In connection with each party's
investigation of the other party and its Subsidiaries and
their businesses and operations, each party and its
representatives have received from the other party or its
representatives certain projections and other forecasts for
the other party and its Subsidiaries and certain estimates,
plans and budget information. Each party acknowledges and
agrees that there are uncertainties inherent in attempting
to make such projections, forecasts, estimates, plans and
budgets; that such party is familiar with such
uncertainties; that such party is taking full responsibility
for making its own evaluation of the adequacy and accuracy
of all estimates, projections, forecasts, plans and budgets
so furnished to it or its representatives; and that such
party will not (and will cause all of its respective
Subsidiaries or other Affiliates or any other Person acting
on its behalf to not) assert any claim or cause of action
against the other party or any of the other party's direct
or indirect partners, directors, officers, employees,
agents, stockholders, Affiliates, consultants, counsel,
accountants, investment bankers or representatives with
respect thereto, or hold any such other Person liable with
respect thereto.
(b) Each of Acquisition LP and Holdco, on the one hand, and
ConAgra, on the other hand, agree that, except for the
representations and warranties made by the other party that
are expressly set forth in this Agreement and the other
Transaction Documents, the other party has not made and
shall not be deemed to have made to such party or to any of
its representatives or Affiliates any representation or
warranty of any kind. Without limiting the generality of the
foregoing, each party agrees that neither the other party
nor any of its Affiliates makes or has made any
representation or warranty to such party or to any of its
representatives or Affiliates with respect to:
(i) any projections, forecasts, estimates, plans or budgets
of future revenues, expenses or expenditures, future
results of operations (or any component thereof),
future cash flows (or any component thereof) or future
financial condition (or any component thereof) of the
other party or any of its Subsidiaries or the future
business, operations or affairs of the other party or
any of its Subsidiaries heretofore or hereafter
delivered to or made available to such party or its
counsel, accountants, advisors, lenders,
representatives or Affiliates; and
(ii) any other information, statement or documents
heretofore or hereafter delivered to or made available
to such party or its counsel, accountants, advisors,
lenders, representatives or Affiliates with respect to
the other party or any of its Subsidiaries or the
business, operations or affairs of the other party or
any of its Subsidiaries, except to the extent and as
expressly covered by a representation and warranty made
by the other party and contained in this Agreement and
the other Transaction Documents.
9.7. Certain Claims.
9.7.1. Company Litigation. Acquisition LP acknowledges that various
Actions are now pending as listed on Exhibit 9.7.1 or may arise
after Closing and result from operations of the Businesses but
name both (i) one or more Acquired Companies and (ii) ConAgra
(and/or its Affiliates) as a party thereto (the "Company
Litigation"); provided, however, that for purposes of this
Agreement, the term "Company Litigation" shall not include the
California Kim Litigation, the Leuking Action or other Cattlemen
Litigation. Except as to matters subject to ConAgra's
indemnification obligations under Articles 6, 12 and 13, after
the Closing Holdco shall indemnify and hold the ConAgra
Indemnified Parties harmless from and against all Liability
relating to the Company Litigation including, without limitation,
all costs and expenses of defending the Company Litigation.
9.7.2. Procedure. ConAgra shall give prompt written notice to Holdco
of the commencement or assertion of any action, proceeding,
demand or claim in respect of any Company Litigation for which
ConAgra seeks indemnification under Section 9.7.1. Subject to the
terms and conditions set forth below, Holdco shall have the right
to assume control of the defense of, settle or otherwise dispose
of such Company Litigation on such terms as it deems appropriate.
Notwithstanding anything contained in Section 12.4 to the
contrary, Holdco may settle or compromise any such Company
Litigation (i) with the written consent of ConAgra, which consent
shall not be unreasonably withheld, or (ii) without such consent,
so long as such settlement or compromise includes (A) an
unconditional release of ConAgra and/or its Affiliates, as the
case may be, from all Liability in respect of such Company
Litigation, (B) does not subject ConAgra or its Affiliates to any
injunctive relief or other equitable remedy, and (C) does not
include a statement or omission of fault, culpability or failure
to act by or on behalf of ConAgra or its Affiliates. ConAgra and
its Affiliates shall have the right, but not the obligation, to
participate at their own expense in the defense of any Company
Litigation and any such participation shall not in any way
diminish or lessen the obligations of Holdco or the Acquired
Companies hereunder. ConAgra shall , and shall cause its
Affiliates to, reasonably cooperate with Holdco, at Holdco's cost
and expense, in connection with the defense of any Company
Litigation and, in connection therewith, shall furnish on a
timely basis all such information, records, documents and
testimony and attend such conferences, discovery proceedings,
hearings, trials and appeals as may be reasonably requested by
Holdco, and provide, on a timely basis, access to and
availability of its employees for purposes of such litigation,
including, without limitation, for purposes of assisting in trial
preparation and the conduct of any trial.
9.7.3. Kim Litigation. Notwithstanding anything contained in Section
12.4 to the contrary, the parties hereto agree that ConAgra, at
its cost and expense, shall retain all claims and causes of
action relating to, and shall have the sole right to control (a)
the litigation captioned ConAgra, Inc., et al. vs. Gap Su Kim, et
al., Case No. 99-04791 currently pending in the United States
District Court, Central District of California, including any
appeals thereof (the "California Kim Litigation"), and (b) the
Korean trademark proceedings between ConAgra and Gap Su Kim,
James Kim, and companies under their control, including Monfort
Korea Beef, Inc., a Kim created entity, over the ownership and
use of the trademark "Monfort" in Korea as described on Exhibit
9.7.3 (the "Korean Kim Litigation"). ConAgra shall be entitled to
receive and retain the benefits of any judgment awarded or
settlement reached pursuant to the California Kim Litigation and
Holdco shall be entitled to receive and retain any judgment
awarded or settlement reached pursuant to the Korean Kim
Litigation, or to have any trademark rights acquired as a result
of the Korean Kim Litigation, or any other related benefits,
assigned to Holdco. Holdco shall, and shall cause the Acquired
Companies to, reasonably cooperate with ConAgra, at ConAgra's
cost and expense, in respect to the California Kim Litigation and
Korean Kim Litigation and, in connection therewith shall furnish,
on a timely basis, all information, records, documents and
testimony and attend such conferences, discovery proceedings,
hearings, trials and appeals as may be reasonably requested by
ConAgra and provide, on a timely basis, access to, and
availability of, Company Employees for purposes of such
litigation, including, without limitation, for purposes of
assisting in trial preparation and the conduct of any trial.
ConAgra may settle or compromise the California Kim Litigation
(i) with the written consent of Holdco, which consent shall not
be unreasonably withheld or delayed, or (ii) without such
consent, so long as such settlement or compromise includes (A) an
unconditional release of Holdco and all Acquired Companies from
all Liability in respect of the California Kim Litigation, (B)
does not subject Holdco or any Acquired Company to any injunctive
relief or other equitable remedy, and (C) does not include a
statement or omission of fault, culpability or failure to act by
or on behalf of Holdco or any Acquired Company. ConAgra may not
settle, dismiss or compromise the Korean Kim Litigation without
the prior consent of Holdco, which consent shall not be
unreasonably withheld or delayed. Notwithstanding anything to the
contrary contained herein, in the event ConAgra fails to
vigorously pursue the claims relating to the Korean Kim
Litigation, Holdco shall have the sole and exclusive right to
control such litigation. Holdco shall have the right, but not the
obligation, to participate in the California Kim Litigation and
the Korean Kim Litigation and any such participation shall not in
any way diminish or lessen the obligations of ConAgra hereunder.
9.7.4. Garden City. The parties acknowledge that ConAgra is the owner
of certain insurance claims described in Exhibit 9.7.4(a) (the
"Garden City Insurance Claims") that relate to and arise out of a
fire at the fed cattle processing plant located at Route 1,
Farmland Road, Garden City, Kansas. ConAgra shall have the right,
at its own cost and expense, to pursue collection of proceeds or
reach a settlement with respect to the Garden City Insurance
Claims and, except as required in this Section 9.7.4, retain the
proceeds with respect to such Garden City Insurance Claims.
Holdco shall, and shall cause the Acquired Companies to,
reasonably cooperate with ConAgra, at ConAgra's expense, in
connection with the Garden City Insurance Claims and, in
connection therewith, shall furnish on a timely basis all such
information, records, documents and testimony, including
testimony through affidavits, depositions and court room
appearance, and attend such conferences, discovery proceedings,
hearings, trials and appeals as may be reasonably requested by
ConAgra, and provide, on a timely basis, access to and
availability of Company Employees for purposes of such action,
including, without limitation, for purposes of assisting in any
preparation for proceedings and the conduct of any proceedings.
To the extent ConAgra receives any cash proceeds attributable to
the Garden City beef business interruption claim as described on
Exhibit 9.7.4(b) (the "BI Claim"), ConAgra shall contribute such
cash proceeds, after deducting therefrom all out-of-pocket costs,
reasonable attorneys' fees (including, without limitation, all
fees arising under the Agreement for Recovery of Fire Related
Losses and Fees, dated as of January 28, 2002, among ConAgra,
ConAgra Beef Company and McGrath, North, Mullin & Kratz, P.C.),
expenses and Taxes incurred by ConAgra as a direct result of the
collection and realization of such cash proceeds, to the capital
of Holdco (the "Garden City Insurance Capital Contribution")
within five (5) business days following the receipt thereof. In
the event ConAgra makes one or more Garden City Insurance Capital
Contributions, the parties agree that ConAgra shall not receive
any additional shares of common stock of, or other equity
interest in, Holdco in connection therewith. The parties hereto
agree that the Garden City Insurance Capital Contribution is an
adjustment to the purchase price of the U.S. Beef Company Stock
and shall be reported as such for Income Tax reporting purposes.
9.8. Unassignable Contracts. If (i) any third-party's (including any
Governmental Authority's) consent or approval to the assignment
or other transfer to the applicable Acquired Company of a
contract to be transferred pursuant to Sections 2.1.6 or 2.1.17
has not been obtained prior to the Closing, then as to the
burdens, obligations, rights or benefits under or pursuant to
such contracts (collectively, the "Rights") not assignable to the
applicable Acquired Company because such consent or approval has
not been obtained:
(a) ConAgra shall, and shall cause its Subsidiaries to, hold the
Rights in trust for the applicable Acquired Company, for the
account and benefit of the applicable Acquired Company;
(b) After the Closing, Holdco shall, and shall cause the
applicable Acquired Company to take, and ConAgra shall, and
shall cause its Subsidiaries to, take all such reasonable
actions and do all such things as shall be reasonably
necessary or desirable in order that (i) the value of the
Rights shall be preserved and shall inure to the benefit of
the applicable Acquired Company and such that all benefits
under the Rights may be received by the applicable Acquired
Company and (ii) the applicable Acquired Company will
perform the burdens and obligations under such Rights; and
(c) After the Closing, ConAgra shall continue to use its
reasonable efforts to obtain such consent or approval.
9.9. Record Retention. Except as set forth below and also subject to
Article 13 hereof, Holdco will cause all books and records of the
Acquired Companies (the "Records") to be retained for seven (7)
years after Closing. Following the Closing, ConAgra shall retain
the books and records set forth on Exhibit 9.9 (the "Retained
Records") for seven (7) years. During such term, each party shall
allow the other party and its representatives access to inspect
or copy the Records and Retained Records, as appropriate, during
normal business hours. In the event a party intends to destroy
any Records or Retained Records in its control at the end of such
seven-year term, such party shall first notify the other party at
which time the other party shall have the right to remove the
Records at its own cost. The parties acknowledge that, in the
past, ConAgra and the Acquired Companies have routinely disposed
of certain Records on a periodic basis and have not retained such
Records for seven (7) years. Notwithstanding the foregoing,
ConAgra, Holdco and the Acquired Companies may continue such
routine periodic record destruction so long as, prior to such
destruction, the party intending to destroy the records notifies
the other party of the nature of such destruction and permits the
other party to remove and retain such Records at its expense.
9.10.Material Covenants. The parties acknowledge that for purposes of
Sections 10.2(b) and 11.1(d)(B), "material covenants" and
"material obligations" shall include, without limitation: (a)
covenants and obligations involving the mere payment of money,
(b) covenants and obligations, the breach of which could have the
effect of diminishing the Borrowing Base (as defined in the
Senior Bank Commitment Letter), (c) covenants and obligations,
the breach of which could have the effect of hindering, delaying
or frustrating the Closing, (d) covenants and obligations, the
breach of which could have the effect of hindering, delaying or
frustrating the financing pursuant to the Senior Commitment
Letter, the Bridge Commitment Letter or the Engagement Letter, or
(e) covenants and obligations as to which notice of breach has
been given pursuant to Section 11.1(d)(B) and as to which such
breach is capable of being, but has not been, cured, within the
cure period provided for in Section 11.1(d)(B).
9.11.Sale of Receivables. ConAgra agrees that as of June 1, 2002, it
will discontinue selling and factoring the receivables (or
interests therein) of the Acquired Companies pursuant to the
Receivables Sale Agreement among ConAgra, Asset Securitization
Cooperative Corporation and Canadian Imperial Bank of Commerce,
or any similar or related arrangement (collectively, "Factoring
Agreements"). ConAgra shall cause all receivables (or interests
therein) of the Acquired Companies, on the Closing Date, to be at
levels at which such receivables would have otherwise been had
they not been subject to the Factoring Agreements. ConAgra
covenants and agrees that, as of the Closing Date, all
receivables (and interests therein) of the Acquired Companies
shall be held by the Acquired Companies free and clear of all
Liens.
9.12. Closing Material Adverse Effect.
9.12.1. In the event either ConAgra or Acquisition LP notifies the
other party of an occurrence of a Closing Material Adverse
Effect, then Acquisition LP shall have six (6) business days from
the receipt of such notice in which to notify ConAgra if
Acquisition LP waives its rights under Section 10.2(d) and
Section 11.1(f) with respect to such Closing Material Adverse
Effect. If Acquisition LP does not elect to make such waiver,
then, if after the date of the occurrence of such Closing
Material Adverse Effect, ConAgra should receive an unsolicited,
bona fide inquiry from an unrelated third party to acquire the
Businesses ("Acquisition Proposal") that ConAgra's Board of
Directors has in good faith concluded (following the receipt of
the advice of its outside legal counsel and its financial
advisors) is, or is reasonably likely to result in, a Superior
Offer (as defined in Section 9.12.2), ConAgra may then take the
following actions: (i) furnish nonpublic information to the third
party making such Acquisition Proposal, provided that (A)(1)
concurrently with furnishing any such nonpublic information to
such party, it gives Acquisition LP written notice of its
intention to furnish nonpublic information and (2) it receives
from the third party an executed confidentiality agreement
containing customary limitations on the use and disclosure of all
nonpublic written and oral information furnished to such third
party on its behalf, the terms of which are at least as
restrictive as the terms contained in the Confidentiality
Agreement, and (B) contemporaneously with furnishing any such
nonpublic information to such third party, it furnishes such
nonpublic information to Acquisition LP (to the extent such
nonpublic information has not been previously so furnished); and
(ii) engage in negotiations with the third party with respect to
the Acquisition Proposal, provided that concurrently with
entering into negotiations with such third party, it gives
Acquisition LP written notice of its intention to enter into
negotiations with such third party. Thereafter ConAgra shall
provide Acquisition LP as promptly as practicable oral and
written notice setting forth all such information as is
reasonably necessary to keep Acquisition LP informed in all
material respects of the status of any such Acquisition Proposal.
In the event that the Board of Directors of ConAgra determines
that such Acquisition Proposal is a Superior Offer, it shall
promptly give Acquisition LP notice of such determination and
Acquisition LP shall have two (2) business days from the receipt
of such notice in which to waive such Closing Material Adverse
Effect as a Closing condition pursuant to Section 10.2(d) and as
a termination right pursuant to Section 11.1(f). In the event
Acquisition LP does not waive such Closing Material Adverse
Effect as a Closing condition and termination right, ConAgra
shall have the right at any time within four (4) business days
from its notice to Acquisition LP to terminate this Agreement
contemporaneously with entering into definitive documents with
respect to such Superior Offer and tendering payment to
Acquisition LP, in immediately available funds such amount as may
be required to reimburse Acquisition LP and its Affiliates and
partners for all out-of-pocket fees, costs and expenses incurred
by any of them in connection with their due diligence efforts or
the transactions (including, without limitation, the preparation
and negotiation of documentation) contemplated in the Transaction
Documents or in the Senior Bank Commitment Letter and Bridge
Commitment Letter, including, without limitation, (A) fees, costs
and expenses of accountants, escrow agents, counsel, financial
advisors and other similar advisors, (B) fees paid to any
Governmental Authority, and (C) fees, costs and expenses paid or
payable to third parties under the Senior Bank Commitment Letter
and Bridge Commitment Letter or in connection with the
transactions contemplated therein (collectively, the "Termination
Fee").
9.12.2. Certain Definitions. "Superior Offer" shall mean an
unsolicited, bona fide written offer made after the occurrence of
Closing Material Adverse Effect by an unrelated third party to
acquire, directly or indirectly, the Businesses on terms that the
Board of Directors of ConAgra has in good faith concluded
(following the receipt of advice of its outside legal counsel and
its financial adviser), taking into account, among other things,
all legal, financial, regulatory and other aspects of the offer
and the Person making the offer, to be more favorable, from a
financial point of view, to ConAgra's stockholders (in their
capacities as stockholders) than the terms of the transactions
contemplated by this Agreement.
10. Conditions Precedent to Obligations.
10.1.Conditions to Each Party's Obligations. The respective
obligations of each party to consummate the transactions
contemplated herein shall be subject to the satisfaction or
waiver on or prior to the Closing Date of the following
conditions:
(a) Governmental Approvals. All authorizations, consents,
orders, declarations or approvals of, or filings with, or
terminations or expirations of waiting periods imposed by,
any Governmental Authority, legally required for the
consummation of making any of the transactions contemplated
hereby shall have been obtained, shall have been made or
shall have occurred, as the case may be, other than such
authorizations, consents, orders, declarations, approvals,
filings, terminations or expirations which the failure to so
obtain would not result in a Company Material Adverse
Effect.
(b) HSR Act. The waiting period (and any extension thereof)
under the HSR Act shall have expired or been terminated.
(c) FATA. The Treasurer of the Commonwealth of Australia shall
have provided advice pursuant to FATA that there are no
objections to the acquisition of Australia Operating Company
in accordance with the terms of this Agreement. For purposes
of this Agreement, the Treasurer shall be deemed to have
provided such advice:
(i) if Australia Acquisition Co. receives written advice
from the Treasurer or on his behalf to the effect that
there are no objections in terms of the Federal
Government's foreign investment policy to the
acquisition of Australia Operating Company either
unconditionally or on terms reasonably acceptable to
Australia Acquisition Co.; or
(ii) if ten (10) days have elapsed from the day the
Treasurer ceased to be empowered to make any order
under Part II of FATA in relation to the acquisition of
Australia Operating Company because of lapse of time,
notice of the acquisition of Australia Operating
Company having been given to the Treasurer under FATA.
(d) No Injunction. No Governmental Authority having jurisdiction
over ConAgra, Acquisition LP or Holdco, or any Acquired
Company, shall have enacted, issued, promulgated, enforced
or entered any Law, decree, injunction or other order
(whether temporary, preliminary or permanent) which is then
in effect and has the effect of making the transactions
contemplated herein illegal or otherwise prohibiting
consummation of the transactions contemplated herein.
(e) Financing. As contemplated by Article 2, (x) U.S.
Acquisition Co. and Australia Acquisition Co. shall have
received the proceeds of the financings contemplated by the
Senior Bank Commitment Letter (or other alternate financing,
if any, obtained by Acquisition LP as contemplated by
Section 9.2.3(a)), and (y) U.S. Acquisition Co. shall have
(i) received the proceeds of the bridge loan contemplated by
the Bridge Commitment Letter (or other alternate financing,
if any, obtained by Acquisition LP as contemplated by
Section 9.2.3(a)) or (ii) consummated the Rule 144A offering
of the debt securities as contemplated by the Bridge
Commitment Letter (or other alternate financing, if any,
obtained by Acquisition LP as contemplated by Section
9.2.3(a)).
10.2.Conditions to Obligation of Acquisition LP. The obligation of
Acquisition LP to consummate the transactions contemplated herein
shall be subject to the satisfaction on or prior to the Closing
Date of the following additional conditions, unless waived in
writing by Acquisition LP:
(a) Representations and Warranties. The representations and
warranties of ConAgra set forth in this Agreement shall be
true and correct in all respects as of the date of this
Agreement and (except to the extent such representations and
warranties speak as of an earlier date) as of the Closing
Date as though made on and as of the Closing Date, except
for such inaccuracies (without giving effect to any
limitations as to materiality or a Company Material Adverse
Effect set forth in such representations and warranties)
that, individually and in the aggregate, have not had a
Company Material Adverse Effect. Holdco shall have received
a certificate signed on behalf of ConAgra by the Chief
Executive Officer, Chief Financial Officer or Executive Vice
President - Operations Control and Development of ConAgra to
such effect.
(b) Performance of Obligations. ConAgra shall have performed in
all material respects all material covenants and material
obligations required to be performed by it under this
Agreement on or prior to the Closing Date, and Holdco shall
have received a certificate signed on behalf of ConAgra by
the Chief Executive Officer, Chief Financial Officer or
Executive Vice President - Operations Control and
Development of ConAgra to such effect.
(c) [Intentionally Omitted]
(d) Closing Material Adverse Effect. No Closing Material Adverse
Effect shall have been incurred or suffered.
10.3.Conditions to Obligation of ConAgra. The obligation of ConAgra to
consummate the transactions contemplated herein shall be subject
to the satisfaction on or prior to the Closing Date of the
following additional conditions, unless waived in writing by
ConAgra:
(a) Representations and Warranties. The representations and
warranties of Acquisition LP set forth in this Agreement
shall be true and correct in all respects as of the date of
this Agreement and (except to the extent such
representations and warranties speaks as of an earlier date)
as of the Closing Date as though made on and as of the
Closing Date, except for such inaccuracies (without giving
effect to any limitations as to materiality or a material
adverse effect set forth in such representations or
warranties) that, individually and in the aggregate have not
had a material adverse effect. ConAgra shall have received a
certificate signed on behalf of Acquisition LP to such
effect.
(b) Performance of Obligations. Acquisition LP shall have
performed in all material respects all material covenants
and material obligations required to be performed by it
under this Agreement on or prior to the Closing Date, and
ConAgra shall have received a certificate signed on behalf
of Acquisition LP to such effect.
(c) Acquisition LP Ownership. Greeley Investments, LLC and
Affiliates of Hicks, Muse, Tate & Furst Incorporated shall
own as of Closing all of the outstanding equity interests in
Acquisition LP.
11. Termination.
11.1.Termination. This Agreement may be terminated, and the
transactions contemplated hereby may be abandoned, at any time
prior to the Closing Date:
(a) by mutual written agreement of ConAgra and Acquisition LP;
(b) by either ConAgra, on the one hand, or Acquisition LP, on
the other hand, if the Closing shall not have occurred on or
before the earlier of (i) September 30, 2002, or (ii) the
first business day immediately following the sixtieth (60th)
day after the initial day that actual marketing of the debt
securities contemplated by the Bridge Commitment Letter
begins (which for purposes of this Agreement shall be the
date that the definitive offering memorandum is first
delivered to potential purchasers of such debt securities);
provided that, if Acquisition LP has delivered to ConAgra a
termination notice as contemplated by Section 11.1(d) and if
such termination is ineffective as a result of a timely cure
by ConAgra of the asserted breach, then Acquisition LP shall
have the right, by means of notice to ConAgra, to extend
such date to a date that is the first business day
immediately following the sixtieth (60th) day after the
tenth (10th) day of the applicable cure period (the
"Termination Date"); provided further that the party seeking
to terminate this Agreement pursuant to this Section 11.1(b)
shall not have breached in any material respect their
obligations under this Agreement in any manner that shall
have proximately caused the failure to consummate the
transactions contemplated herein on or before the
Termination Date;
(c) prior to the Closing by either ConAgra, on the one hand, or
Acquisition LP, on the other hand, if any permanent
injunction, order, decree or ruling by any Governmental
Authority of competent jurisdiction preventing the
consummation of the transactions contemplated herein shall
have become final and nonappealable; provided, however, that
the party seeking to terminate this Agreement pursuant to
this Section 11.1(c) shall have used its reasonable best
efforts to remove such injunction or overturn such action;
(d) by Acquisition LP, at any time, if there shall have been any
(A) breach of one or more representations or warranties of
ConAgra (which has not been waived), except for breaches
(without giving effect to any limitation as to materiality
or Company Material Adverse Effect set forth in such
representations and warranties) which, individually and in
the aggregate, have not had a Company Material Adverse
Effect and except for breaches that result from actions
expressly permitted under or taken pursuant to this
Agreement, or (B) material breach of one or more material
covenants or material obligations set forth in this
Agreement by ConAgra (which has not been waived), in each
case of clause (A) or (B), which breach or breaches shall
not have been cured within ten (10) days following receipt
by ConAgra of written notice from Acquisition LP of such
breach, and whether or not the breach was (1) within the
control of ConAgra or (2) the result of ConAgra's actions or
inactions;
(e) by ConAgra, at any time, if there shall have been any (A)
breach of one or more representations or warranties of
Acquisition LP (which has not been waived), except for
breaches (without giving effect to any limitation as to
materiality or material adverse effect set forth in such
representations and warranties) which, individually and in
the aggregate, have not had a material adverse effect and
except for breaches that result from actions expressly
permitted under or taken pursuant to this Agreement, or (B)
material breach of one or more covenants or agreements set
forth in this Agreement by Acquisition LP (which has not
been waived), in each case of clause (A) or (B), which
breach or breaches shall not have been cured within ten (10)
days following receipt by Acquisition LP of written notice
from ConAgra of such breach, and whether or not the breach
was (1) within the control of Acquisition LP or (2) the
result of Acquisition LP's actions or inactions;
(f) by Acquisition LP, if any Closing Material Adverse Effect
shall have been incurred or suffered; or
(g) by ConAgra pursuant to Section 9.12 while contemporaneously
(i) entering into definitive documents with respect to a
Superior Offer and (ii) tendering payment of the Termination
Fee pursuant to Section 9.12.1.
11.2.Effect of Termination. In the event of termination of this
Agreement pursuant to this Section 11, the transactions
contemplated hereby shall be deemed abandoned and this Agreement
shall forthwith become void, except that the provisions of
Section 15.3, Section 15.15, this Section 11.2 and the terms of
the Confidentiality Agreement shall survive any termination of
this Agreement; provided, however, that nothing in this Agreement
shall relieve any party from liability for any breach of this
Agreement.
12. General Indemnity.
12.1.Indemnification by ConAgra Indemnified Parties. Subject to the
overall limitations, minimum amounts, time limitations and
limitations on recourse and other limits set forth in this
Article 12:
12.1.1. ConAgra Indemnity. ConAgra agrees, from and after the Closing
Date, to indemnify and hold harmless Holdco and each Subsidiary
of Holdco and each of their respective officers, directors and
employees (collectively, the "Holdco Indemnified Parties") from
and against any and all damages, losses, claims, Liabilities,
demands, charges, suits, proceedings, penalties, costs and
expenses (including court costs and reasonable attorneys' fees
and expenses incurred in investigating and preparing for any
litigation or proceeding) (collectively, the "Holdco Indemnified
Costs") which any of the Holdco Indemnified Parties may sustain,
or to which any of the Holdco Indemnified Parties may be
subjected, relating to or arising directly or indirectly out of:
(a) any Environmental Costs or Liabilities arising out of or in
connection with or as a result of any facts or circumstances
existing on or before the Closing Date relating to the
operations of or property owned or leased or previously
owned or leased by the Acquired Companies at any time on or
before the Closing Date (regardless of whether such matters
have been disclosed in the Schedules to this Agreement or
otherwise) (the "Pre-Existing Environmental Matters"),
including any Holdco Indemnified Costs that any Holdco
Indemnified Party may sustain in connection with any
remediation, clean-up, modification, repairs, work,
construction, alterations or installations required as a
result of the Pre-Existing Environmental Matters (except any
increased costs to the extent such increased costs are
caused, contributed to or exacerbated by the actions of any
Holdco Indemnified Party), including, without limitation,
any costs relating to capital improvements, physical
upgrading or maintenance and repairs required by
Environmental Laws which for purposes of this Section
12.1.1(a) shall be deemed Holdco Indemnified Costs;
provided, however, that this Subsection (a) shall not be
deemed to apply to any entity or property acquired or leased
by a Holdco Indemnified Party subsequent to the Closing;
(b) any violation of any Labor Laws by the Acquired Companies
existing on or before the Closing Date (regardless of
whether such matters have been disclosed in the Schedules to
this Agreement or otherwise);
(c) except with respect to Liabilities arising in connection
with transactions between ConAgra or a Subsidiary thereof on
one hand and a Holdco Indemnified Party on the other hand
pursuant to the Cattle Supply Agreement, Risk Management
Agreement, Cash Management Agreement, Transition Services
Agreement or By-Products Agreement, any third-party action
(as defined in Section 12.4.1) involving an Indemnified
Party relating to or arising out of the operation of the
Feed Lot Business or the ownership or use of any of the
assets or property used or held for use by the Feed Lot
Business whether relating or arising prior to, at or after
the Closing; provided, however, that Cattle Holdco and
Cattleco shall not be beneficiaries of this Section
12.1.1(c);
(d) a breach or alleged breach by any of the Acquiring Companies
or Acquired Companies of the terms and provisions of any
agreement entered into governing the sale and purchase
effecting a "Divestiture" (as such term is used in the
Stockholders Agreement) of all or any portion of the Feed
Lot Business or the assets or property used or held for use
by the Feed Lot Business as contemplated by the Stockholders
Agreement; provided that Cattle Holdco and Cattleco shall
not be entitled to the benefits of the indemnification
provided by this Section 12.1.1(d);
(e) any breach or inaccuracy of any representation or warranty
made by ConAgra and contained in this Agreement, each
Representation and Warranty Certificate or the certificates
delivered pursuant to Article 10;
(f) any breach or nonfulfillment or nonperformance by ConAgra of
any agreement or covenant of ConAgra in this Agreement or
the certificates delivered pursuant to Article 10;
(g) the California Kim Litigation and Korean Kim Litigation,
including any accrued but unpaid Liability relating to
either preceding, provided, however, that ConAgra shall have
no Liability under this Article 12 or otherwise in the event
the Korea Kim Litigation results in the Businesses, Acquired
Companies or Acquiring Companies not having rights to the
Monfort mark in Korea;
(h) except with respect to Liabilities arising in connection
with transactions between ConAgra or a Subsidiary thereof on
one hand and a Holdco Indemnified Party on the other hand
pursuant to the Transition Services Agreement, Preferred
Supplier Agreement, Armour Transition License Agreement,
Swift Transition License Agreement, Hangar License
Agreement, Risk Management Agreement, Cattle Supply
Agreement or By-Products Agreement, any third-party action
(as defined in Section 12.4.1) involving an Indemnified
Party relating to or arising out of the failure by ConAgra
or its Affiliates (other than the Acquiring Companies and
the Acquired Companies) to pay, perform or discharge any of
their respective Liabilities relating to (x) the conduct of
any business (other than the Businesses) by ConAgra and its
Subsidiaries (other than the Acquiring Companies and the
Acquired Companies), prior to, at or after the Closing, (y)
the ownership and operation of any assets or property not
owned by any Acquired Company as of the Closing, or (z) the
Divested Companies; or
(i) any third-party action (as defined in Section 12.4.1) that
any Holdco Indemnified Party is made a party to and that
results from ConAgra's assertion of the Garden City
Insurance Claims.
12.1.2. Pre-Closing Cattlemen Litigation. ConAgra agrees, from
and after the Closing Date, to indemnify and hold harmless
the Holdco Indemnified Parties from and against (i)
judgments for monetary damages including, without
limitation, any award of fees and expenses, and (ii)
monetary settlements, in either case, to the extent that
such:
(a) arises out of (x) the litigation styled Robert M.
Leuking and Gordon M. Reisinger v. ConAgra Foods, Inc.
and ConAgra Beef Company pending in the United States
District Court for the District of Nebraska as Case No.
4:CV02-3124 (the "Leuking Litigation") or (y) any
future litigation filed against ConAgra or any
Acquiring Company or Acquired Company after the date of
this Agreement that is based primarily on the
substantive facts alleged in the Leuking Litigation
and, in either case, to the extent such seeks damages
resulting from activities of ConAgra or the Acquired
Companies occurring prior to the Closing Date (the
"Pre-Closing Cattlemen Litigation"); and
(b) only to the extent to which such monetary damages or
monetary settlements result from activities of ConAgra
or the Acquired Companies occurring prior to the
Closing Date (the "Pre-Closing Damages"). In no event
shall ConAgra be responsible or liable under this
Section 12.1.2 for (x) any litigation, damages or
settlements associated with operations of the Acquiring
Companies or Acquired Companies after the Closing Date
including, without limitation, any damages or
settlements associated with the Pre-Closing Cattlemen
Litigation that do not constitute Pre-Closing Damages,
(y) any equitable relief granted in any Pre-Closing
Cattlemen Litigation, or any costs, damages,
liabilities or other consequences of any such equitable
relief, or (z) any costs, damages, liabilities or other
consequences of the Pre-Closing Cattlemen Litigation
that do not constitute Pre-Closing Damages.
12.2.Cattleco Indemnity. Cattleco agrees, from and after the
Closing Date, to indemnify and hold harmless each of the
other Holdco Indemnified Parties (other than Cattle Holdco)
from all Holdco Indemnified Costs which any of the other
Holdco Indemnified Parties (other than Cattle Holdco) may
sustain, or to which any of the other Holdco Indemnified
Parties may be subjected, relating to or arising directly or
indirectly out of any third-party action (as defined in
Section 12.4.1) that has been asserted against a Holdco
Indemnified Party (other than Cattle Holdco) that results
from the operation of the Feed Lot Business or the ownership
or use of any of the assets or property used or held for use
by the Feed Lot Business whether relating or arising prior
to, at or after the Closing, other than those arising under
the terms of the Cattle Supply Agreement.
12.3.Indemnification of the ConAgra Indemnified Parties. Holdco
agrees from and after the Closing Date to indemnify and hold
harmless ConAgra and each Subsidiary thereof and each of
their respective officers, directors and employees,
(collectively, the "ConAgra Indemnified Parties" and
collectively with the Holdco Indemnified Parties, the
"Indemnified Parties") from and against any and all damages,
losses, claims, Liabilities, demands, charges, suits,
proceedings, penalties, costs and expenses (including court
costs and reasonable attorneys' fees and expenses incurred
in investigating and preparing for any litigation or
proceeding) (collectively, the "ConAgra Indemnified Costs"
and collectively with Holdco Indemnified Costs, the
"Indemnified Costs") which any of the ConAgra Indemnified
Parties may sustain, or to which any of the ConAgra
Indemnified Parties may be subjected, relating to or arising
directly or indirectly out of (w) any breach or
nonfulfillment or nonperformance by Holdco, the other
Acquiring Companies or the Acquired Companies of any
covenant or obligation of Holdco, the other Acquiring
Companies or the Acquired Companies in this Agreement that
is to be performed on or after the Closing, (x) any
third-party action (as defined in Section 12.4.1) relating
to or arising out of the failure by Holdco or the Acquired
Companies to pay, perform or discharge any of the
Liabilities of the Acquired Companies arising prior to, at
or after the Closing, in each case, other than those (a) for
which ConAgra has agreed to indemnify the Holdco Indemnified
Parties pursuant to this Agreement including, without
limitation, Pre-Closing Cattlemen Litigation or (b) that are
not primarily related to the conduct of the Businesses, (y)
the Leuking Litigation or any future litigation filed
against ConAgra or any Acquiring Company or Acquired Company
after the date of this Agreement that is based primarily on
the substantive facts alleged in the Leuking Litigation and,
in either case, to the extent that such arises out of
activities of the Acquiring Companies after the Closing Date
(the "Post-Closing Cattlemen Litigation" and collectively
with the Pre-Closing Cattlemen Litigation, the "Cattlemen
Litigation") or (z) except as provided in Sections 12.1.2
and 12.4.3(c), any ConAgra Indemnified Cost arising from the
Pre-Closing Cattlemen Litigation or any settlement thereof
to the extent that a ConAgra Indemnified Party is liable
therefore. In no event shall the indemnification provided
for in this Section 12.3 include any ConAgra Indemnified
Costs that a ConAgra Indemnified Party may suffer or sustain
as a result of (1) any loss in the value of any debt or
equity security (including, without limitation, the common
stock of Holdco, the Cattleco Note, the Promissory Note or
the Cattleco Revolver) of an Acquiring Company or Acquired
Company that may be now or hereafter owned by a ConAgra
Indemnified Party or (2) the impairment of the ability of an
Acquiring Company or Acquired Company to perform under any
such debt or equity security or any other contractual
obligation existing between a ConAgra Indemnified Party and
an Acquiring Company or Acquired Company.
12.4.Defense of Third-Party Claims.
12.4.1. Notice of Third-Party Claims. An Indemnified Party shall
give prompt written notice to any Person who is obligated to
provide indemnification hereunder (an "Indemnifying Party")
of the commencement or assertion of any action, proceeding,
demand or claim by a third-party (collectively, a
"third-party action") in respect of which such Indemnified
Party shall seek indemnification hereunder; provided that
for purposes of this Section 12.4, the Indemnified Party in
respect of an indemnification by Cattleco under Section 12.2
shall be deemed to exclude Cattleco. Any failure so to
notify an Indemnifying Party shall not relieve such
Indemnifying Party from any Liability that it may have to
such Indemnified Party under this Article 12 unless and to
the extent such failure to give notice materially and
adversely prejudices such Indemnifying Party.
12.4.2. Non-Cattlemen Litigation. Except in the case of Cattlemen
Litigation, the Indemnifying Party shall have the right to
assume control of the defense of, settle or otherwise
dispose of such third-party action on such terms as it deems
appropriate; provided, however, that:
(a) The Indemnified Party shall be entitled, at its own
expense, to participate in the defense of such
third-party action (provided, that the Indemnifying
Party shall pay the attorneys' fees of the Indemnified
Party if (i) the employment of separate counsel shall
have been authorized in writing by any such
Indemnifying Party in connection with the defense of
such third-party action, (ii) the Indemnifying Party
shall not have employed counsel reasonably satisfactory
to the Indemnified Party to have charge of such
third-party action, or (iii) the Indemnified Party's
counsel shall have advised the Indemnified Party in
writing, with a copy to the Indemnifying Party, that
there is a conflict of interest that could make it
inappropriate under applicable standards of
professional conduct to have common counsel).
(b) The Indemnifying Party shall obtain the prior written
approval of the Indemnified Party, which approval shall
not be unreasonably withheld, before entering into or
making any settlement, compromise, admission or
acknowledgment of the validity of such third-party
action or any Liability in respect thereof if, pursuant
to or as a result of such settlement, compromise,
admission, or acknowledgment, injunctive or other
equitable relief would be imposed against the
Indemnified Party.
(c) No Indemnifying Party shall consent to the entry of any
judgment or enter into any settlement that does not
include as an unconditional term thereof the giving by
each claimant or plaintiff to each Indemnified Party of
a release from all Liability in respect of such
third-party action.
(d) The Indemnifying Party shall not be entitled to control
(but shall be entitled to participate at its own
expense in the defense of), and the Indemnified Party
shall be entitled to have sole control over, the
defense or settlement, compromise, admission, or
acknowledgment of any third-party action (i) as to
which the Indemnifying Party fails to assume the
defense within ten (10) business days after notice of a
claim for indemnification or (ii) to the extent the
third-party action seeks an order, injunction or other
equitable relief against the Indemnified Party which,
if successful, would materially adversely affect the
business, operations, assets or financial condition of
the Indemnified Party; provided, that the Indemnified
Party shall make no settlement, compromise, admission
or acknowledgment that would give rise to Liability on
the part of any Indemnifying Party without the prior
written consent of such Indemnifying Party.
(e) The parties hereto shall extend reasonable cooperation
in connection with the defense of any third-party
action pursuant to this Article 12 and, in connection
therewith, shall furnish such records, information and
testimony and attend such conferences, discovery
proceedings, hearings, trials and appeals as may be
reasonably requested.
(f) To the extent an Indemnified Holdco Cost is exclusively
incurred or suffered by Cattleco or Cattle Holdco that
claim shall be made by Cattleco or Cattle Holdco and
any payment in respect thereof shall be received by
Cattleco or Cattle Holdco.
12.4.3. Cattlemen Litigation. In the case of Cattlemen
Litigation, the following provisions shall be applicable:
(a) ConAgra shall be entitled, through its designated
counsel, to control the defense of any Cattlemen
Litigation, including any settlement or compromise
thereof; provided, that ConAgra shall obtain the prior
written approval of Holdco, which approval shall not be
unreasonably withheld, before entering into or making
any settlement or compromise of any Cattlemen
Litigation or any judicial admission or judicial
acknowledgement of the validity of any claim asserted
in any Cattlemen Litigation.
(b) The Holdco Indemnified Parties shall be entitled,
through counsel that shall appear jointly with counsel
designated by ConAgra pursuant to clause (a) above, to
participate in the defense of any Cattlemen Litigation.
The parties hereto shall extend reasonable cooperation
in connection with the defense of any Cattlemen
Litigation pursuant to this Section 12.4.3 and, in
connection therewith, shall furnish such records,
information and testimony and attend such conferences,
discovery proceedings, hearings, trials and appeals as
may be reasonably requested.
(c) Notwithstanding any other provision to the contrary
contained herein, (i) ConAgra and Holdco shall each be
responsible for its own attorneys' fees and expenses
incurred under this Section 12.4.3 in connection with
any Cattlemen Litigation and (ii) ConAgra and Holdco
shall each bear one-half (1/2) of all court costs,
witness and expert costs and other similar
out-of-pocket costs incurred in connection with any
Cattlemen Litigation.
12.5.Limitation on Environmental Indemnification. With respect to
any claims for Holdco Indemnified Costs under Section
12.1.1(a), Holdco shall have exclusive control over the
selection and performance of any remediation method or goal
or other corrective action implemented at or otherwise
affecting the subject property. ConAgra shall have the
right, but not the obligation, (i) to participate in any
meetings between the Holdco Indemnified Parties and
Governmental Authorities; (ii) to receive copies of any
remediation or corrective action proposals before such
proposals are submitted to Governmental Authorities; and
(iii) to provide comments to such proposals for
consideration by Holdco. ConAgra shall have twenty (20)
business days following receipt to provide comments to
Holdco concerning any remediation or corrective action
proposals, unless Holdco believes that fewer than twenty
(20) business days are available for review because of
pending or threatened enforcement action, claims by third
parties, or applicable governmental or other deadlines, in
which case Holdco will notify ConAgra and the parties will
make reasonable arrangements to achieve an expedited review.
Holdco shall consider all comments by ConAgra before making
a final determination concerning proposed work, but Holdco
shall have no obligation to adopt any suggestions by
ConAgra. Notwithstanding the exclusive control by Holdco
over the selection and performance of any remediation method
or goal or other corrective action pursuant to this section,
ConAgra shall have no obligation under Section 12.1.1(a) to
indemnify the Holdco Indemnified Parties for any cost in
excess of the lowest available cost reasonably necessary to
achieve the minimum legal requirements to resolve or correct
the indemnity claim while maintaining but not unreasonably
interfering with the historical use of the subject property.
Holdco shall provide to ConAgra reasonable access to all
information, documentation, employees, consultants and
properties relating to any claim under Section 12.1.1(a)
12.6.Direct Claims. In any case in which an Indemnified Party
seeks indemnification hereunder which is not subject to
Section 12.4 because no third-party action is involved, the
Indemnified Party shall promptly notify the Indemnifying
Party in writing of any Indemnified Costs which such
Indemnified Party claims are subject to indemnification
under the terms hereof. The failure of the Indemnified Party
to exercise promptness in such notification shall not amount
to a waiver of such claim unless, and to the extent, the
resulting delay prejudices the position of the Indemnifying
Party with respect to such claim.
12.7.Limitation on Indemnification.
12.7.1. Except as otherwise provided in this Agreement, the
covenants, representations and warranties contained in this
Agreement and in all certificates and documents delivered
pursuant to or contemplated by this Agreement shall survive
the Closing and shall continue for the applicable
limitations period notwithstanding such Closing or any
investigation made by or on behalf of the party entitled to
the benefit thereof or any knowledge of such party;
provided, however, that
(i) The representations and warranties contained in Section
7.9 (Taxes) (other than Sections 7.9.1(vi), 7.9.1(viii)
and 7.9.1(ix)(b)), Section 7.16 (Labor) and Section
7.18 (Environmental) shall not survive the Closing;
(ii) ConAgra shall not be responsible for any Holdco
Indemnified Costs pursuant to Section 12.1.1(e)
suffered by a Holdco Indemnified Party arising out of a
breach of any representations or warranties of ConAgra
contained in Section 7 unless a claim therefore is
asserted in writing within the following periods of
time: (A) the representations and warranties contained
in Section 7.1 (Organization), Section 7.2 (Articles
and By-Laws), Section 7.3 (Corporate Authorization),
subpart (i) of Section 7.4 (Effect of the Agreement),
Section 7.6 (Capitalization), Section 7.9.1(vi),
Section 7.9.1(viii) and Section 7.9.1(ix)(b) (Taxes)
and Section 7.17.1(iv) (ERISA) shall survive the
Closing Date until the tenth day after the expiration
of all applicable statutes of limitation with respect
to such representations and warranties (after taking
into account all extensions and suspensions thereof);
(B) the representations and warranties contained in
Section 7.17 (other than Section 7.17.1(iv)) (ERISA)
shall survive the Closing Date for five (5) years
following the Closing Date; and (C) all other
representations and warranties shall survive for twelve
(12) months following the Closing Date;
(iii)ConAgra shall not be responsible for any Holdco
Indemnified Costs pursuant to Sections 12.1.1(a), (b)
and (e) or Non-Income Taxes indemnifiable pursuant to
Section 13.5.1 suffered by a Holdco Indemnified Party
unless the aggregate of all Holdco Indemnified Costs
and such Non-Income Taxes suffered by the Holdco
Indemnified Parties exceed, on a cumulative basis, an
amount equal to Seven Million Five Hundred Thousand
United States Dollars ($7,500,000);
(iv) the aggregate Liability of ConAgra hereunder, pursuant
to Sections 12.1.1(a), (b) and (e) for Holdco
Indemnified Costs and Section 13.5.1 for indemnifiable
Non-Income Taxes suffered by a Holdco Indemnified Party
shall in no event exceed One Hundred Fifty Million
United States Dollars ($150,000,000); and
(v) ConAgra shall not be responsible for any Holdco
Indemnified Costs pursuant to Sections 12.1.1(a), (b),
(c), (e), (f) and (h) to the extent that such Holdco
Indemnified Costs are reflected as a reserve or expense
accrual in (i) the Final Processing Closing Balance
Sheet (and are taken into account in calculating the
Aggregate Consideration) if such Holdco Indemnified
Costs are asserted on behalf of any Acquiring Company
(other than Cattle Holdco) or any Processing Company or
(ii) the Final Cattleco Closing Balance Sheet (and are
taken into account in determining the Cattleco
Stockholder Net Investment) if such Holdco Indemnified
Costs are asserted on behalf of Cattle Holdco or
Cattleco.
12.7.2. Offsets - Representation and Warranty Indemnification.
The amount of any Holdco Indemnified Costs for which
indemnification is provided under Sections 12.1.1(a), (b),
(e) and (f) shall be subject to a net offset equal to the
sum of (i) the amount of cash proceeds actually received by
any Acquiring Company or Acquired Company from the sale or
other divestiture, or use, of any of the assets described on
Exhibit 12.7.2 (the "Garden City Assets"), after deducting
from the amount of such cash proceeds (A) all out-of-pocket
costs, expenses and Taxes incurred by any Acquiring Company
or Acquired Company as a direct result of the collection and
realization of such cash proceeds, and (B) the book value of
the Garden City Assets set forth on the Final Processing
Closing Balance Sheet and after increasing such offset by
all reductions in Taxes actually realized by Holdco or any
Acquiring Company or Acquired Company from the sale or other
divestiture of the Garden City Assets (collectively, the
"Garden City Value"), plus (ii) the amount of any Garden
City Insurance Capital Contribution previously made to
Holdco or any Acquired Company or Acquiring Company. In the
event Holdco, any Acquiring Company or any Acquired Company
receives Garden City Value or any Garden City Insurance
Capital Contributions subsequent to receipt of any payment
from ConAgra for Holdco Indemnified Costs as described
above, then Holdco shall pay to ConAgra the amount of Garden
City Value and Garden City Insurance Capital Contributions
received to the extent of such prior indemnity payment(s)
paid by ConAgra.
12.7.3. [Intentionally Omitted]
12.7.4. Survival. ConAgra shall not be responsible for any Holdco
Indemnified Costs pursuant to Section 12.1.1(a) or 12.1.1(b)
unless a claim with respect thereto is asserted in writing within
five (5) years following the Closing Date.
12.7.5. Offsets - Sections 12.1.1(c) and (d) Indemnification. The
amount of Holdco Indemnified Costs for which indemnification is
provided under Section 12.1.1(c) or Section 12.1.1(d) shall be
subject to a net offset equal to (a) the amount of cash proceeds
received under the indemnification provided under Section 12.2
after deducting therefrom all out-of-pocket costs, expenses and
Taxes incurred by any Acquiring Company or Acquired Company
(other than Cattle Holdco and Cattleco) in connection with the
collection and realization of such cash proceeds and after
increasing such offset for all reductions in Taxes realized from
the collection and realization of such cash proceeds and (b) the
amount (the "Profit Amount") by which (x) the aggregate cash
proceeds received by any Acquiring Company or Acquired Company
(other than Cattle Holdco and Cattleco) from the Divestiture of
the Feed Lot Business (after deducting therefrom all
out-of-pocket costs, expenses and Taxes incurred by any Acquiring
Company or Acquired Company in connection with the Divestiture of
the Feed Lot Business and the repayment of all obligations
outstanding under the Cattleco Loan Agreement, the Cattleco Note
and all other indebtedness incurred by the Feed Lot Business and
also after increasing such offset for all reductions in Taxes
realized from the Divestiture of Feed Lot Business) exceeds (y)
Eighteen Million United States Dollars ($18,000,000); provided,
however, in the event that the HMC Call Option (as such term is
defined in the Stockholders Agreement) has been previously
exercised as contemplated in the Stockholders Agreement then, to
the extent that all or any portion of the Profit Amount has been
taken into account in calculating the Option Purchase Price (as
such term is defined in the Stockholders Agreement) payable in
connection with such exercise, such portion of the Profit Amount
shall not be available for use as an offset under clause (b)
above.
12.7.6. Calculation of Indemnity Payments. The amount of any Holdco
Indemnified Costs and ConAgra Indemnified Costs for which
indemnification is provided under this Article 12 shall be net of
any amounts recovered by the applicable Indemnified Party from
any contribution or counterclaims or under any insurance policies
(in each case, after deducting therefrom all out-of-pocket costs,
expenses and Taxes incurred in connection with the collection and
realization of such amounts) with respect to such Holdco
Indemnified Costs or ConAgra Indemnified Costs, as applicable,
and shall be increased to take account of any net Income Tax cost
actually incurred by the applicable Indemnified Party arising
from the receipt of indemnity payments hereunder attributable to
fines and penalties incurred by Holdco or its Affiliates that are
not deductible for Income Tax purposes (grossed up for Income
Taxes imposed on such increase). In computing the amount of any
such Tax cost, the applicable Indemnified Party shall be deemed
to recognize all other items of income, gain, loss, deduction or
credit before recognizing any item arising from the receipt of
any indemnity payment hereunder or the incurrence or payment of
any indemnified amount. The applicable Indemnified Party agrees
to use reasonable best efforts to pursue and collect on any
recovery available to it and to net any such recovery against any
claim for indemnification hereunder or, if an indemnification
claim has already been resolved, against the amount paid by the
Indemnifying Party pursuant to such resolution. After it has been
determined that there has been a breach of a representation or
warranty, the amount of Holdco Indemnified Costs recoverable
under Section 12.1.1(e) shall be determined without regard to any
materiality qualification contained therein or to whether or not
any such breach results or may result in a Company Material
Adverse Effect.
12.7.7. Tax Treatment of Indemnification. For all Tax purposes, the
parties agree to treat (and shall cause each of their respective
Affiliates to treat) any indemnity payment under this Agreement
(including, without limitation, any payments by any party hereto,
or its designee, to another party hereto, or its designee, under
Article 13 hereof, whether or not by way of indemnity or
otherwise) as an adjustment to the purchase price unless a final
and unappealable determination by an appropriate Governmental
Authority (which shall include the execution of an IRS Form
870-AD or successor form) provides otherwise; provided that the
Indemnifying Party's prior written consent (which will not be
unreasonably withheld, conditioned or delayed) will be obtained
by the Indemnified Party who seeks to accept, via a settlement or
compromise with any such Governmental Authority, a position that
is contrary to treatment of an indemnity payment (or such other
payment) as an adjustment to the purchase price.
12.8.General Liability Casualty Policy, Product Liability and
Automobile Claim Indemnification. ConAgra agrees to (i) be
responsible for and pay, or cause its applicable plans, policies
(or similar arrangements) or carriers to be responsible for and
pay (subject to the terms of the applicable plan, policy or
arrangement) and (ii) from and after the Closing Date, indemnify
and hold harmless each of the Holdco Indemnified Parties from and
against all Holdco Indemnified Costs which any Holdco Indemnified
Party may sustain, or to which any Holdco Indemnified Party may
be subjected, relating to or arising directly or indirectly out
of the occurrence on or prior to the Closing Date (whether known
or unknown as of the Closing Date) of an event that would have
been covered under ConAgra's general liability casualty policy,
product liability or automobile self-insurance program,
including, without limitation, any item that would otherwise be
subject to ConAgra's self-insurance program and whether or not
such Holdco Indemnified Costs are in excess of any self-insurance
amounts.
12.9.Deed of Cross Guarantee Indemnity.
12.9.1. ConAgra Indemnity. ConAgra agrees, from and after the Closing
Date, to indemnify and hold harmless each of the Holdco
Indemnified Parties from and against all Holdco Indemnified Costs
which any Holdco Indemnified Party may sustain, or to which any
Holdco Indemnified Party may be subjected, as a result of any
Debt (as defined in the Deed of Cross Guarantee) incurred by
ConAgra Trade Group Pty. Ltd.
12.9.2. Holdco Indemnity. Holdco agrees, from and after the Closing
Date, to indemnify and hold harmless each of the ConAgra
Indemnified Parties from and against all ConAgra Indemnified
Costs which any ConAgra Indemnified Party may sustain, or to
which any ConAgra Indemnified Party may be subjected, as a result
of any Debt (as defined in the Deed of Cross Guarantee) incurred
by Australia Operating Company and/or Burcher Pty. Limited.
12.10. Remedies. After the Closing the provisions of this Agreement
shall be the exclusive basis for the assertion of claims against,
or the imposition of Liability on, any party by another party
hereto in respect of any breach of this Agreement.
12.11. No Contribution. After the Closing, except as provided in
Section 12.2, no Acquiring Company or Acquired Company shall be
liable for any Holdco Indemnified Costs sustained by any Holdco
Indemnified Party; accordingly, ConAgra shall not be entitled to
seek contribution or any other payments from an Acquiring Company
or Acquired Company for any Holdco Indemnified Costs that ConAgra
is obligated to pay pursuant to this Agreement.
12.12. Assignment. The rights and obligations of Holdco and the Holdco
Indemnified Parties under this Article 12 shall not be assignable
in all or in part; provided, however, that to the extent
requested by a lender under the Senior Bank Commitment Letter,
the parties shall execute and deliver such documents as may be
necessary to effect a collateral assignment of the rights arising
under this Agreement to the lenders under the Senior Bank
Commitment Letter.
12.13. Mitigation. ConAgra, Holdco, the Acquiring Companies and the
Acquired Companies will use commercially reasonable efforts to
mitigate the Indemnified Costs.
12.14. Limitation of Damages. ConAgra, Cattleco, and Holdco shall be
responsible only for direct damages, and in no event shall
ConAgra, Cattleco, or Holdco be liable for punitive or exemplary,
indirect, special consequential or similar damages.
12.15. Other Indemnities. The indemnification obligations set forth in
Article 6 and Article 13 are in addition to the indemnification
obligations set forth in this Article 12 and, unless expressly
stated otherwise in Article 6, this Article 12 or Article 13, the
indemnification obligations in Article 6 and Article 13 are not
subject to the overall limitations, minimum amounts, time
limitations, limitations on recourse and other limitations set
forth in this Article 12.
12.16. Exclusive Indemnification. The indemnification obligation set
forth in Section 12.1.2 shall be the exclusive indemnification
obligations of ConAgra in respect of Pre-Closing Cattlemen
Litigation and the provisions of Section 12.1.1 shall not be
applicable to Pre-Closing Cattlemen Litigation.
13. Tax Matters.
13.1.Transfer Taxes. Holdco shall be responsible for and shall pay all
Non-Income Taxes imposed on or in connection with the sale or
transfer of securities hereunder, the sale or transfer of assets
to the Acquiring Companies or Acquired Companies and any other
transactions effected pursuant to this Agreement (other than the
transactions described in Section 2.1.5) and shall indemnify and
hold harmless the ConAgra Indemnified Parties from such
Non-Income Taxes. ConAgra shall be responsible for and shall pay
all Non-Income Taxes imposed on or in connection with the
transactions described in Section 2.1.5 and shall indemnify and
hold harmless the Holdco Indemnified Parties from such Non-Income
Taxes.
13.2.Tax Sharing Agreements. Any tax sharing or other allocation
agreement with respect to Taxes to which any Acquiring Company or
Acquired Company is a party with ConAgra or any other Affiliate
thereof is hereby terminated as of the Closing Date and shall
have no further effect for any taxable period. This Article 13
and Section 7.9 above shall control all of the parties'
respective obligations for Taxes affecting the Acquiring
Companies and Acquired Companies and supersede any and all prior
agreements, contracts or understandings between ConAgra or its
Affiliates and any Acquiring Company or Acquired Company
regarding any Acquiring Company or Acquired Company's Taxes.
13.3. Tax Returns.
13.3.1. Tax Returns. After the Closing, Holdco shall cause each of the
Acquired Companies to consent to join, for all Tax periods of the
Acquired Companies ending on or before the Closing Date for which
the Acquired Companies are eligible to do so, in any consolidated
or combined federal, state or local Tax returns of ConAgra.
ConAgra shall cause to be prepared and timely filed any and all
consolidated or combined federal, state or local Tax returns as
well as any separate federal, state, local or foreign Tax returns
for the Acquired Companies for all Tax periods ending on or
before the Closing Date and shall be responsible for the timely
payment of all Taxes shown due except (i) if such Taxes are a
liability of any Processing Company, to the extent accrued as a
Liability on the Final Processing Closing Balance Sheet (and
taken into account in calculating the Aggregate Consideration) or
(ii) if such Taxes are a Liability of Cattleco, to the extent
accrued as a Liability on the Final Cattleco Closing Balance
Sheet (and taken into account in determining the Cattleco
Stockholder Net Investment), as the case may be. Holdco shall
prepare or cause to be prepared and timely filed any and all Tax
returns of (i) the Acquiring Companies for all Tax Periods and
(ii) the Acquired Companies for Tax periods beginning after the
Closing Date. Holdco shall provide ConAgra informational drafts
of the Income Tax Returns for the Acquiring Companies that
include the Closing Date or any portion of the Pre-Closing Period
at least thirty (30) days before any such return's due date for
filing with the appropriate Governmental Authority. The parties
agree that for federal (and applicable state) Income Tax purposes
the transactions described in Sections 2.2.3 through 2.2.8 of
this Agreement will be treated as occurring at the beginning of
the day following the Closing Date as provided in Treas. Reg. ss.
1.1502-76(b)(2)(ii)(B) and analogous state law. Holdco agrees
that it and its Affiliates shall report, and take all actions
consistent with the Tax reporting of, the Acquiring Companies as
never having been members of ConAgra's Group for any Tax purposes
(or any unitary, combined or consolidated group of ConAgra),
provided that ConAgra and its Subsidiaries shall be in compliance
with their obligations under Section 9.1.1(n). The parties agree
to cooperate with each other and each other's Affiliates in the
preparation of Tax returns pertaining to the Acquiring Companies
and the Acquired Companies. The parties shall be entitled to
utilize the services of the other party's personnel who would
have been responsible for preparing such returns as they relate
to the Acquiring Companies and the Acquired Companies, without
charge to the extent reasonably necessary in preparing said
returns on a timely basis. The parties shall also provide each
other with full access to applicable and reasonably relevant
records to enable the timely preparation and filing of said
returns. ConAgra shall pay on a timely basis all Taxes in respect
to the Pre-Closing Period shown as due on the returns it is
responsible to prepare under this Section 13.3.1 except (i) if
such Taxes are a Liability of any Processing Company, to the
extent accrued as a Liability on the Final Processing Closing
Balance Sheet (and taken into account in calculating the
Aggregate Consideration) or (ii) if such Taxes are a Liability of
Cattleco, to the extent accrued as a Liability on the Final
Cattleco Closing Balance Sheet (and taken into account in
determining the Cattleco Stockholder Net Investment), as the case
may be. Holdco shall pay or cause to be paid on a timely basis
all Taxes shown as due on the returns it is responsible to
prepare under this Section 13.3.1. The parties shall make
available to each other without charge, copies of the portions of
such returns relating to the Acquiring Companies and the Acquired
Companies for Taxable years ending before or including the
Closing Date. The parties' obligations to pay Taxes under this
Section 13.3.1 shall not affect their rights to indemnification
for Taxes under other provisions of this Article 13; it is the
intention of the parties hereto that in no event shall a party
pay more than once under different provisions of this Agreement
for the same Tax Liability.
13.3.2. Allocations. ConAgra shall include the income and deductions
of the Acquired Companies (including any deferred income
triggered into income by Treas. Reg. ss. 1.1502-13 and Treas.
Reg. ss. 1.1502-19, or equivalent provisions of state or local
law) on ConAgra's consolidated or combined federal, state or
local Income Tax returns for the Pre-Closing Period and shall pay
any Income Taxes attributable thereto. In any case where any Tax
return covers a Tax period beginning before and ending after the
Closing Date, the amount of Taxes allocable between ConAgra on
one hand, and the Acquired Companies on the other hand, shall be
determined by closing the books of the Acquired Companies as of
and including the Closing Date. If the allocation of an item of
income, gain, loss, deduction or credit cannot be specifically
allocated based on such closing of the books, such item shall be
allocated on a daily basis.
13.3.3. Straddle Period Returns of the Acquired Companies. For
purposes of this Section 13.3.3, "Straddle Period Return" means a
Tax return of the Acquiring Companies or Acquired Companies that
covers a Taxable year or period beginning before and ending after
the Closing Date. Not later than thirty (30) days prior to the
due date of a Straddle Period Return, Holdco shall prepare and
deliver a copy of such Straddle Period Return return to ConAgra
together with (i) in the case of an Income Tax return, a
statement of the amount of Income Taxes shown due on such
Straddle Period Return that are attributable to Income Taxes
accrued on or before the Closing Date by the Acquiring Companies
(but, in the case of an Acquiring Company, only such Income Taxes
that are the direct result of a breach by ConAgra or a Subsidiary
thereof of Section 9.1.1(n) and then only to the extent of the
increase in Income Taxes caused by such breach over the Income
Taxes that would be payable absent such breach) or Acquired
Companies (a "Pre-Closing Straddle Period Income Tax") and (ii)
in the case of a Non-Income Tax return, a statement of the
excess, if any, of (x) the amount of Non-Income Taxes shown due
on such Straddle Period Return that are attributable to the
Pre-Closing Period (but, in the case of an Acquiring Company,
only such Non-Income Taxes that are the direct result of a breach
by ConAgra or a Subsidiary thereof of Section 9.1.1(n) and then
only to the extent of the increase in Non-Income Taxes caused by
such breach over the Taxes that would be payable absent such
breach) over (y) the amount set up as a Liability for such
Non-Income Taxes on the Final Processing Closing Balance Sheet
(and taken into account in calculating the Aggregate
Consideration) or the Final Cattleco Closing Balance Sheet (and
taken into account in determining the Cattleco Stockholder Net
Investment) (the sum of (x) minus (y) (a "Pre-Closing Straddle
Period Non-Income Tax")) (or, in the event that the amount
described in (y) is greater than the amount described in (x)
(such amount, an "Excess Non-Income Tax Accrual"), a statement of
such Excess Non-Income Tax Accrual amount). Not later than five
(5) days prior to the due date of such Straddle Period Return,
(i) ConAgra shall pay or cause to be paid to Holdco the amount
attributable to a Processing Company of any Pre-Closing Straddle
Period Income Tax and any Pre-Closing Straddle Period Non-Income
Tax, and (ii) ConAgra shall pay or cause to be paid to Cattleco
the amount attributable to Cattleco of any Pre-Closing Straddle
Period Income Tax and any Pre-Closing Straddle Period Non-Income
Tax. In the event of an Excess Non-Income Tax Accrual, (a) Holdco
shall pay to ConAgra or its designee the amount of such Excess
Non-Income Tax Accrual that is attributable to a Processing
Company and (b) Cattleco shall pay to ConAgra or its designee the
amount of such Excess Non-Income Tax Accrual that is attributable
to Cattleco. Any payment obligations under this Section 13.3.3
shall not be subject to the limitations of Section 12.7.1(iii) or
Section 12.7.1(iv).
13.4.Section 338(g) Election. Holdco shall not make nor allow any of
its Affiliates to make an election under Code Section 338(g) with
respect to the acquisition of Australia Operating Company without
the prior written consent of ConAgra.
13.5. Tax Indemnity.
13.5.1. Tax Indemnity. Subject to Section 13.11 and except to the
extent of (x) a Non-Income Tax attributable to a Processing
Company that is a Non-Income Tax accrued as a Liability on the
Final Processing Closing Balance Sheet (and taken into account in
calculating the Aggregate Consideration) or (y) a Non-Income Tax
attributable to Cattleco that is a Non-Income Tax accrued as a
Liability on the Final Cattleco Closing Balance Sheet (and taken
into account in determining the Cattleco Stockholder Net
Investment), from and after the Closing Date, ConAgra shall be
solely liable for, shall pay and shall protect, defend, indemnify
and hold harmless the Holdco Indemnified Parties from any and all
Taxes (including, without limitation, any obligation to
contribute to the payment of any Taxes determined on a
consolidated, combined or unitary basis with respect to a group
of corporations that includes or included any of the Acquiring
Companies or Acquired Companies), and any costs, expenses, losses
or damages, including reasonable expenses of investigation and
reasonable attorneys' and accountants' fees and expenses,
directly arising out of the protest, determination, assessment or
collection of such Taxes (collectively, "Tax Losses") which
result from (i) any Liability for Taxes imposed on any of the
Acquiring Companies (but, in the case of an Acquiring Company,
only if ConAgra or its Subsidiaries breached Section 9.1.1(n) and
then only to the extent of the increase in Taxes caused by such
breach over the Taxes that would be payable absent such breach or
an Income Tax Liability under clause (iii) in this Section below)
or Acquired Companies for any taxable period or portion thereof
ending on or prior to the Closing Date, including any Acquired
Company ceasing to be a member of the ConAgra Group, (ii) the
Liability of ConAgra, any member of the ConAgra Group or any
Affiliate of ConAgra (other than an Acquiring Company or Acquired
Company) for any Taxes for any taxable period or (iii) the
Liability of any of the Acquiring Companies or Acquired Companies
pursuant to Treas. Reg.ss.1.1502-6 or any analogous state, local
or foreign law or regulation or by reason of its having been a
member of any consolidated, combined or unitary group on or prior
to the Closing Date.
13.5.2. Certain Definition. "Adjustment" means any change in an item
of income, gain, loss, deduction or credit, including, but not
limited to, changes attributable to any amended Income Tax
returns, deficiencies asserted by any Taxing authority,
overpayments, claims for refund, audit, examination, proceedings
or litigation resulting from any of the foregoing events.
13.5.3. Timing Adjustments: Holdco's Income Tax Decrease. If there is
an Adjustment to any item reported on an Income Tax return filed
with respect to ConAgra or any of its Affiliates (including any
Acquiring Company or Acquired Company) for a Pre-Closing Period
that results in an increase in the Income Tax liabilities of
ConAgra or any of its Affiliates (including any Acquiring Company
or Acquired Company to the extent ConAgra is liable for such
Income Tax liabilities under this Agreement) and such Adjustment
results in a corresponding Adjustment to items reported on an
Income Tax return filed by or with respect to Holdco, any
Acquiring Company, any Acquired Company or any Affiliate for a
period (or a portion of a period) occurring after the Closing
Date, with the result that the Income Tax liabilities of Holdco,
any Acquiring Company, any Acquired Company, or such Affiliate
with respect to any such period are reduced, then Holdco shall
pay to ConAgra an amount equal to such increase in Income Taxes
of ConAgra or its Affiliates, such payment being limited to the
decrease in the Income Tax liabilities of Holdco and its
Affiliates.
13.5.4. Timing Adjustments: Holdco's Income Tax Increase. If there is
an Adjustment to any item reported on an Income Tax return filed
with respect to ConAgra or any of its Affiliates (including any
Acquiring Company or any Acquired Company) for a Pre-Closing
Period that results in a decrease in the Income Tax liabilities
of ConAgra or any of its Affiliates (including any Acquiring
Company or any Acquired Company to the extent ConAgra is liable
for such Income Tax liabilities under this Agreement) and such
Adjustment results in a corresponding Adjustment to items
reported on an Income Tax Return filed by or with respect to
Holdco, any Acquiring Company or any Acquired Company or any
Affiliate for a period (or portion of a period) occurring after
the Closing Date, with the result that the Income Tax liabilities
of Holdco, any Acquiring Company or Acquired Company, or any such
Affiliate with respect to such period are increased, then ConAgra
shall pay to Holdco an amount equal to such increase in Income
Taxes of Holdco or Holdco's Affiliate, such payment being limited
to the decrease in the Income Tax liabilities of ConAgra and its
Affiliates.
13.5.5. Payments. Any payment by a party under Section 13.5.3 or
Section 13.5.4 shall be due within thirty (30) days after the
realization of the applicable Income Tax decrease. Any such
payment shall bear interest computed at the underpayment rate and
in the manner provided by Section 6621(a)(2) of the Code for a
period commencing on the thirtieth day after the actual
realization of the applicable Income Tax decrease, and shall bear
such interest until paid by the reimbursing party.
13.6.Refunds. Any Taxes of the Acquiring Companies, the Acquired
Companies or their Subsidiaries that are paid in respect of a
Pre-Closing Period and that are refunded to Holdco or any of its
Affiliates shall be paid to ConAgra or its designee, except as
otherwise provided in this Section 13.6. The term "refunds,"
"refunded" or derivatives of such terms generally shall include,
but are not limited to, refunds of Taxes, overpayments of Taxes,
and reductions in Taxes or estimated Taxes (whether by way of
credit, reduction, offset or otherwise). Holdco shall or shall
cause its Affiliates to pay to ConAgra or its designee any such
refunds within ten (10) days of the receipt thereof and shall pay
to ConAgra, or its designee, the amount of any refunds utilized
(i) as a deposit for or payment of estimated Taxes of any
Acquiring Company, Acquired Company or their Subsidiaries or (ii)
to reduce the liability for Taxes of any Acquiring Company,
Acquired Company or their Subsidiaries, whether by way of credit,
reduction, offset or otherwise for any taxable period (other than
a Pre-Closing Period with respect to uncollected Taxes not
accrued as a liability on the Final Processing Closing Balance
Sheet in the case of refunds attributable to any Processing
Company or on the Final Cattleco Closing Balance Sheet in the
case of refunds attributable to Cattleco) within ten (10) days of
the utilization thereof, except (a) in the case of refunds of
Taxes attributable to any Processing Company, to the extent
accrued as an asset on the Final Processing Closing Balance Sheet
(and taken into account in calculating the Aggregate
Consideration), (b) in the case of refunds of Taxes attributable
to Cattleco, to the extent accrued as an asset on the Final
Cattleco Closing Balance Sheet (and taken into account in
determining the Cattleco Stockholder Net Investment) or (c) in
the case of refunds of Non-Income Tax not covered by clause (a)
or (b), any such refund payable to ConAgra or its designee will
be limited to the cumulative amount of indemnity payments of
Non-Income Taxes made by ConAgra or its designee hereunder. If
any portion of any Non-Income Tax refund is retained by Holdco or
any Subsidiary thereof pursuant to clause (c) of the preceding
sentence, such portion shall increase the basket amount of
Section 12.7.1(iii) on a cumulative basis. Notwithstanding the
foregoing, (x) any refunds of Taxes utilized or received by
Cattle Holdco or Cattleco attributable to the Pre-Closing Period
shall be paid by such recipient to ConAgra or its designee within
ten (10) days of the utilization or receipt thereof and shall not
increase the basket amount of Section 12.7.1(iii), and (y) any
payment by Holdco or its Subsidiaries to ConAgra or its designee
pursuant to this Section 13.6 shall be reduced to take into
account any net Income Tax cost to Holdco or its Subsidiaries on
the receipt of such refund. Any such refund payable to ConAgra or
its designee shall bear interest at the underpayment rate and in
the manner provided by Section 6621(a)(2) of the Code commencing
on the tenth day after the utilization or receipt of any such
refund by Holdco or any of its Affiliates until paid in full to
ConAgra or its designee.
13.7.Cooperation. After the Closing Date, ConAgra and Holdco shall
make available to the other, free of charge, cost or expense and
as reasonably requested, all information, records or documents
reasonably relevant to the determination of Tax Liabilities or
potential Tax Liabilities of any Acquiring Company or Acquired
Company or predecessor thereof for all periods prior to or
including the Closing Date (or any matter, transaction or event
occurring on or before the Closing Date that may affect such a
Tax Liability) and each such Person shall preserve all such
available information, records and documents until the expiration
of any applicable statute of limitations or extensions thereof.
Each such Person shall provide, free of charge, cost or expense,
the other(s) and the pertinent Governmental Authority with all
available information and documentation reasonably necessary to
comply with all Tax audit information requests or inquiries made
of any such periods relevant to such Tax Liabilities or potential
Tax Liabilities (or any matter, transaction or event occurring on
or before the Closing Date that reasonably may affect such a Tax
Liability). Any information obtained pursuant to this Section
13.7 shall be held in strict confidence and shall be used solely
in connection with the reason for which it was requested. In
addition, Holdco shall make available to ConAgra, free of charge,
cost or expense, all returns, refund claims, information, records
or documents reasonably relevant to the determination of refunds
governed by Section 13.6 hereof (or any matter, transaction, or
event that may affect any such refund). Holdco shall and shall
cause its Affiliates to preserve all such available returns,
refund claims, information, records or documents until the
expiration of any applicable statute of limitations or extensions
thereof. Holdco shall promptly notify ConAgra in writing of the
receipt or utilization of any such refund by Holdco or any of its
Affiliates. Such notice shall include a statement including a
reasonable description and estimate of the anticipated refund,
the type of Tax that is the subject of such refund, the period(s)
that such refund relates to, and such other information as may be
reasonably relevant to inform ConAgra of the circumstances of any
such refund.
13.8. Tax Audits.
13.8.1. Notice. Holdco shall promptly notify ConAgra in writing upon
receipt by Holdco or any Affiliate of Holdco, and ConAgra shall
promptly notify Holdco in writing upon receipt by ConAgra or any
Affiliate of ConAgra, of notice of any pending or threatened
federal, state, local or foreign Tax audits, examinations or
assessments of any Acquiring Company or Acquired Company (other
than consolidated or combined Income Tax audits, examinations or
assessments), so long as Taxable years which include the
Pre-Closing Period remain open.
13.8.2. Certain Income Taxes. ConAgra shall have the sole right (a) to
represent the Acquiring Companies and Acquired Companies and
their predecessors in any Income Tax audit or administrative or
court proceeding relating to Income Taxes of ConAgra or any
Acquiring Company or Acquired Company attributable to the
Pre-Closing Period that are reported on Income Tax returns filed
by ConAgra, (b) to negotiate, compromise and settle any such
audit or proceeding and (c) to employ counsel of its choice at
its expense. Notwithstanding the foregoing, with respect to
Income Taxes, ConAgra shall not be entitled to settle, either
administratively or after the commencement of litigation, any
claim for such Income Taxes which would adversely and directly
affect the Liability for Income Taxes of any Acquiring Company or
any Acquired Company for any period after the Closing Date to any
extent (including, but not limited to, the imposition of Income
Tax deficiencies, or the adjustment of any Tax attribute such as
the reduction of asset bases or cost adjustments, the lengthening
of any amortization or depreciation periods, the denial of
amortization or depreciation deductions, or the reduction of loss
or credit carryforwards) without the prior written consent of
Holdco, which consent shall not be unreasonably withheld,
conditioned or delayed, provided that where consent to settlement
of an Income Tax claim is so withheld by Holdco, ConAgra's
indemnification Liability hereunder shall not exceed the
Liability that would have resulted from ConAgra's proposed
settlement of such Income Taxes.
13.8.3. Non-Income Taxes. Provided that the basket amount of Section
12.7.1(iii) has not been exhausted by Holdco Indemnified Costs
and Non-Income Taxes (on a cumulative basis), Holdco shall have
the sole right (a) to represent Holdco, the Acquiring Companies
and the Acquired Companies in any Non-Income Tax audit or
administrative or court proceeding for Non-Income Taxes of any
Acquiring Company or Acquired Company attributable to the
Pre-Closing Period, (b) to negotiate, compromise and settle any
such audit or proceeding and (c) to employ counsel of its choice
at its expense. Otherwise, at ConAgra's election, ConAgra shall
have the sole right to (x) so represent such companies in any
such Non-Income Tax matter, (y) negotiate, compromise and settle
any such audit or proceeding, and (z) employ counsel of its
choice at its expense. Notwithstanding the foregoing:
(i) With respect to audits or administrative or court
proceedings controlled by Holdco, Holdco shall not be
entitled to settle, either administratively or after the
commencement of litigation, any claim for such Non-Income
Taxes which would adversely and directly affect the
Liability for Non-Income Taxes of ConAgra or its Affiliates
to any extent (including, but not limited to, the imposition
of Non-Income Tax deficiencies or the payment by ConAgra of
any portion of the Non-Income Taxes proposed to be
compromised or settled) without the prior written consent of
ConAgra, which consent shall not be unreasonably withheld,
conditioned or delayed.
(ii) With respect to audits or administrative or court
proceedings controlled by ConAgra, ConAgra shall not be
entitled to settle, either administratively or after the
commencement of litigation, any claim for such Non-Income
Taxes which would adversely and directly affect the
liability for Non-Income Taxes of Holdco or its Affiliates
to any extent (including, but not limited to, the imposition
of Non-Income Tax deficiencies or the payment by Holdco of
any portion of the Non-Income Taxes proposed to be
compromised or settled) without the prior written consent of
Holdco, which consent shall not be unreasonably withheld,
conditioned or delayed.
13.9.Holdco Indemnities. Holdco shall pay and shall protect, defend,
indemnify and hold ConAgra and ConAgra's Affiliates harmless from
and against any Liability resulting directly from any breach or
nonfulfillment of any agreement or covenant under this Article 13
that is a direct result of actions taken after the Closing Date
by any Acquiring Company or Acquired Company.
13.10. Survival. The obligations of the parties under this Article 13
shall survive the Closing until the tenth day after expiration of
the applicable or underlying tax statute of limitations
(including any extensions).
13.11. Miscellaneous. The provisions of this Article 13 shall be the
Holdco Indemnified Parties' sole and exclusive remedy in respect
of Tax claims except as specifically otherwise provided in
Article 12, and the provisions of Article 13 shall not be subject
to the provisions or limitations set forth in Section 12.7 other
than Section 12.7.1(iii), Section 12.7.1(iv), Section 12.7.7,
Section 12.10, Section 12.12 and Section 12.14. Notwithstanding
the foregoing, the limitations set forth in Section 12.7.1(iii)
and Section 12.7.1(iv) shall not apply to (a) a Non-Income Tax
imposed on or in connection with the transactions described in
Section 2.1.5 for which ConAgra is liable under Section 13.1, and
(b) a Pre-Closing Straddle Period Non-Income Tax payable under
Section 13.3.3, and (c) Income Taxes. Any payments of Taxes under
this Article 13, or any payments of Holdco Indemnified Costs
under Article 12, whether or not by way of indemnity or
otherwise, each in respect of Australia Operating Company or its
Subsidiaries, made by ConAgra or its designee, shall be made to
Australia Acquisition Co., and any refunds of Taxes under this
Article 13, or any payments of ConAgra Indemnified Costs under
Article 12, whether or not by way of indemnity or otherwise, each
in respect of Australia Operating Company or its Subsidiaries,
that are payable to ConAgra or its designee, shall be made by
Australia Acquisition Co.
14. Additional Agreements.
14.1.1. Dumas Plant. The parties acknowledge that the City of Cactus,
Texas is in the process of evaluating possible alternatives to
improve its wastewater disposal facilities to bring such
facilities into compliance with applicable Environmental Laws.
The parties hereby agree that with respect to any such wastewater
disposal facility improvements to be implemented by Cactus, Texas
necessary to cause such facility to be able to treat on an
ongoing basis, at those levels in effect at the time of this
Agreement, the influent waste water from the Dumas Plant in
compliance with applicable Environmental Laws as described on
Exhibit 14.1 (the "Cactus Project"):
(a) Holdco shall make, and shall cause the Acquiring Companies
and Acquired Companies to make, all representations,
agreements and commitments with respect to (x) the continued
ownership and operation of the plant located in Dumas, Texas
as such is described on Exhibit 14.1.1(a) (the "Dumas
Plant"), (y) payment of fees for use of the wastewater
facility and (z) continued use of the wastewater facility,
consistent with past practices and quantities, as necessary
to facilitate the financing of the Cactus Project.
(b) As may be necessary in order to ensure adequate wastewater
disposal from the Dumas Plant in order to continue normal
operations of the Dumas Plant at those levels in effect at
the time of this Agreement, ConAgra shall provide all
guarantees, indemnities, bonding arrangements, letters of
credit and other similar financial support necessary to
complete the financing of the Cactus Project.
(c) ConAgra shall pay, or shall reimburse the Holdco Indemnified
Parties for, all capital expenditures in excess of Ten
Million United States Dollars ($10,000,000) in the aggregate
paid, or required to be paid, by Holdco Indemnified Parties
in order (x) for Holdco Indemnified Parties or the City of
Cactus, Texas to comply with any requirement of any
Governmental Authority imposed or required in connection
with the Cactus Project or (y) to facilitate the wastewater
disposal facility of the City of Cactus, Texas to be in
compliance with applicable Environmental Laws, in each case
of clause (x) and (y) as may be required for the Dumas Plant
to continue its normal operations at those levels in effect
at the time of the Agreement, whether such capital
expenditures are incurred on-site or off-site the current
premises of the Dumas Plant. The obligations set forth in
this Section 14.1 shall not be subject to the provisions of
Section 12.7.1(iii) or Section 12.7.1(iv).
(d) Subject to Subsection (f) hereof, ConAgra and Holdco shall,
and Holdco shall cause the Acquiring Companies and Acquired
Companies to, use all reasonable efforts (i) to induce the
appropriate Governmental Authorities not to require any of
the foregoing support or capital expenditures by ConAgra;
(ii) if any of the foregoing support or capital expenditures
are required, to minimize the support or capital
expenditures required; and (iii) to minimize the cost of the
Cactus Project consistent with allowing the Dumas Plant to
operate at those levels in effect at the time of this
Agreement.
(e) Holdco shall, and shall cause the Acquiring Companies and
Acquired Companies to, (x) keep ConAgra apprised, and shall
provide a copy where available, of all discussions,
correspondence, agreements and other communications between
Holdco or its Affiliates and the City of Cactus, Texas or
any other Governmental Authorities relating to the Cactus
Project or wastewater disposal at the Dumas Plant, and (y)
allow ConAgra the opportunity to participate in any such
discussions. In no event shall Holdco, the Acquiring
Companies or the Acquired Companies enter into, or otherwise
make, any agreement or commitment that will require ConAgra
to provide support pursuant to Section 14.1.1(b) without
ConAgra's prior consent, which consent shall not be
unreasonably withheld.
(f) Except as provided in Subsection (a) above, neither Holdco
nor any Acquiring Company or Acquired Company shall be
obligated to provide any guarantees, indemnities, bonding
arrangements, letters of credit or other similar financial
support to facilitate the financing of the Cactus Project.
14.2. Right of First Offer.
14.2.1. Right of First Offer. For a period of one year following the
Closing Date, prior to any Transfer or attempted Transfer by
ConAgra or any Affiliate thereof ("Montgomery Owner") of all or
any part of the Montgomery Owner's right, title and interest in
the facility or operations located in Montgomery, Alabama
described on Exhibit 14.2.1 (collectively, the "Montgomery
Facilities"), Montgomery Owner shall (i) give notice (the
"Transfer Notice") to Holdco of its intention to effect a
Transfer, and provide Holdco with a proposed cash purchase price
(the "Proposed Purchase Price") for which it desires to Transfer
the Montgomery Facilities. After receipt of the Transfer Notice,
Holdco (or, if applicable, any Subsidiary thereof) shall have the
option for thirty (30) days to elect to purchase the Montgomery
Facilities for the Proposed Purchase Price (subject to the
negotiation, execution and delivery of mutually acceptable
definitive agreements) by delivering a written notice (the
"Election Notice") of such election to Montgomery Owner within
such 30-day period. Montgomery Owner shall not consummate such
Transfer until the earlier to occur of the lapse of the 30-day
period or the date on which Holdco (or, if applicable, any
Subsidiary thereof) notifies Montgomery Owner in writing that it
will not exercise its rights under this Section 14.2.1 (the
"Authorization Date"). If Holdco (or, if applicable, any
Subsidiary thereof) does not elect to purchase the Montgomery
Facilities or fails to make a timely election, Montgomery Owner
may Transfer the Montgomery Facilities to a third Person at a
cash price no lower than the Proposed Purchase Price, during the
one hundred eighty (180) day period immediately following the
Authorization Date. If the Montgomery Facilities are not so
transferred within such 180-day period, then the Montgomery
Facilities must be reoffered to Holdco in accordance with the
provisions of this Section 14.2.1 if Montgomery Owner still
desires to Transfer the Montgomery Facilities.
14.2.2. Closing. If Holdco (or, if applicable, any Subsidiary thereof)
exercises the right to purchase the Montgomery Facilities by
timely delivery of the Election Notice, unless otherwise agreed
by Montgomery Owner and Holdco (or, if applicable, its assignee),
the closing will take place at the offices of Holdco's legal
counsel on the later of the sixtieth (60th) business day,
assuming execution and delivery of mutually acceptable definitive
agreements, after the date of the Election Notice, or, if
applicable, the fifth (5th) business day after the date that all
approvals and consents of Governmental Authorities have been
obtained. At the closing, Holdco shall cause the purchaser to pay
to Montgomery Owner the Proposed Purchase Price, and Montgomery
Owner will transfer and deliver the Montgomery Facilities, free
and clear of all Liens (other than as permitted under such
definitive agreement). Montgomery Owner shall and Holdco shall
cause the purchaser to promptly perform, whether before or after
any such closing, such additional acts (including, without
limitation, the making of all filings necessary to obtain all
required consents and approvals of Governmental Authorities, and
executing and delivering additional documents) as are reasonably
required by either such party to effect the transactions
contemplated by this Section 14.2.2.
14.2.3. Assignment. The rights of Holdco under this Section 14.2 may
be assigned or transferred in whole or in part to any Subsidiary
of Holdco without any consent or action on the part of any other
party hereto.
14.2.4. Certain Definition. For purposes of this Section 14.2,
"Transfer" shall mean any direct or indirect sale, transfer,
assignment, gift, conveyance or other disposition of the
Montgomery Facilities or any interest therein (including by way
of liquidation, merger, consolidation or sale or exchange of
assets or securities) to any Person who is not a direct or
indirect wholly-owned Subsidiary of ConAgra.
14.2.5. Further Assurances. After the Closing, each party shall take
such further actions and execute such further documents as may be
necessary or reasonably requested by the other party in order to
effectuate the intent of this Agreement and to provide such other
party with the intended benefits of this Agreement.
15. Miscellaneous. The following miscellaneous provisions shall apply to this
Agreement:
15.1.Notices. All notices or other communications required or
permitted to be given, pursuant to the terms of this Agreement,
shall be in writing and shall be deemed to be duly given when
received if delivered in person or by facsimile and confirmed by
mail, or mailed by registered or certified mail (return receipt
requested) or overnight courier, express mail, postage prepaid,
as follows:
If to ConAgra: ConAgra Foods, Inc.
One ConAgra Drive
Omaha, Nebraska 68102
Attention: Corporate Controller
Facsimile: (402) 595-4611
With a copy to: McGrath, North, Mullin and Kratz, P.C.
Suite 1400, 222 South 15th Street
Omaha, NE 68102
Attention: Roger Wells
Facsimile: (402) 341-0216
If to Acquisition LP: Hicks, Muse, Tate & Furst Incorporated
200 Crescent Court, Suite 1600
Dallas, Texas 75201
Attention: Edward Herring
Facsimile: (214) 720-7888
With a copy to: Vinson & Elkins L.L.P.
2001 Ross Avenue
3700 Trammell Crow Center
Dallas, Texas 75201-2975
Attention: Michael D. Wortley
Facsimile: (214) 999-7732
and
Winston & Strawn
35 W. Wacker Drive
Chicago, Illinois 60601
Attention: Bruce A. Toth
Facsimile: (312) 558-5700
or at such other address as the party to whom notice is to be given furnishes in
writing to the other party in the manner set forth above.
15.2.Amendments and Waivers. This Agreement may not be modified or
amended, except by instrument or instruments in writing, signed
by the party against whom enforcement of any such modification or
amendment is sought. Either ConAgra, on the one hand, or
Acquisition LP, on the other hand, may, by an instrument in
writing, waive compliance by the other party with any term or
provision of this Agreement on the part of such other party to be
performed or complied with. No action taken pursuant to this
Agreement, including any investigation by or on behalf of any
party, shall be deemed to constitute a waiver by the party taking
such action of compliance with any representation, warranty or
agreement contained herein. The waiver by any party hereto of a
breach of any term or provision of this Agreement shall not be
construed as a waiver of any subsequent breach.
15.3.Expenses. ConAgra and Acquisition LP have listed on Exhibit 15.3
the fees payable to each of them, or their respective Affiliates
or partners, other than expense reimbursements, in connection
with the consummation of the transactions contemplated by this
Agreement. ConAgra and Acquisition LP have received the Senior
Bank Commitment Letter and the Bridge Commitment Letter setting
forth the fees payable thereunder. At the Closing, Holdco shall
pay or reimburse all of the costs and expenses of the parties and
their respective partners, Affiliates, representatives, counsel
and other advisors in connection with the preparation and
execution of this Agreement and the consummation of the
transactions contemplated herein, including, without limitation,
those listed on Exhibit 15.3 and those set forth in the Senior
Bank Commitment Letter and the Bridge Commitment Letter.
Notwithstanding the foregoing to the contrary, ConAgra shall not
be entitled to receive payment or reimbursement for, and Holdco
shall not be required to pay or reimburse ConAgra for, any fees
or related costs and expenses payable to Gleacher & Co., and
ConAgra shall pay all such amounts when due and payable. Except
as otherwise provided herein, in the event that the transactions
contemplated by this Agreement shall not be consummated, ConAgra
and Acquisition LP shall each pay their own expenses, and those
of their respective Affiliates, in connection with the
preparation and execution of this Agreement and the consummation
of the transactions contemplated herein and any expenses
specifically payable by them pursuant to this Agreement.
15.4.Affiliate Liability. Each of the following is herein referred to
as an "Acquisition LP Affiliate": (a) any direct or indirect
holder of any equity interests or securities in Acquisition LP
(whether limited or general partners, members, stockholders or
otherwise) or (b) any director, officer, limited or general
partner, employee, representative or agent of (i) Acquisition LP,
(ii) any Affiliate of Acquisition LP or (iii) any such holder of
equity interests or securities referred to in clause (a) above.
Except to the extent that an Acquisition LP Affiliate is an
express signatory party hereto or thereto, no Acquisition LP
Affiliate shall have any Liability or obligation of any nature
whatsoever in connection with or under this Agreement, any of the
other Transaction Documents or the transactions contemplated
hereby or thereby, and ConAgra hereby waives and releases all
claims of any such Liability and obligation.
15.5.Entire Agreement. This Agreement (which term shall be deemed to
include the Exhibits and Schedules hereto and the other
certificates, documents and instruments delivered hereunder) and
the Confidentiality Agreement constitute the entire agreement
among the parties hereto with respect to the subject matter
hereof and supersede all prior agreements and understandings,
oral and written, among the parties hereto with respect to the
subject matter hereof.
15.6.Terms of Sale. The parties agree and acknowledge, on behalf of
themselves and their Affiliates, that EXCEPT AS OTHERWISE
SPECIFICALLY SET FORTH IN THIS AGREEMENT OR THE OTHER TRANSACTION
DOCUMENTS, THE ACQUIRED COMPANIES AND THE SHARES OF HOLDCO ARE
BEING SOLD HEREUNDER WITHOUT ANY REPRESENTATIONS OR WARRANTIES,
EXPRESS OR IMPLIED, OTHER THAN THE REPRESENTATIONS AND WARRANTIES
EXPRESSLY SET FORTH IN THIS AGREEMENT AND THE OTHER TRANSACTION
DOCUMENTS. EXCEPT FOR CLAIMS MADE IN ACCORDANCE WITH THE SPECIFIC
TERMS OF THIS AGREEMENT OR THE OTHER TRANSACTION DOCUMENTS, NO
CLAIMS SHALL BE MADE AGAINST CONAGRA OR ITS AFFILIATES IN RESPECT
OF ANY REPRESENTATION, WARRANTY, INDEMNITY, COVENANT OR
UNDERTAKING. THE PARTIES CONFIRM THAT THEY HAVE NOT RELIED ON ANY
REPRESENTATION, WARRANTY, INDEMNITY, COVENANT OR UNDERTAKING OF
ANY PERSON WHICH IS NOT EXPRESSLY CONTAINED IN THIS AGREEMENT OR
THE OTHER TRANSACTION DOCUMENTS.
15.7.Applicable Law. This Agreement and the legal relations among the
parties hereto shall be governed by and construed in accordance
with the laws of the State of Delaware applicable to contracts
made and performed in Delaware.
15.8.Binding Effect; Benefits. This Agreement shall inure to the
benefit of and be binding upon the parties hereto and their
respective successors and assigns. Except as set forth in Section
6.1, Section 9.5 and Article 12, nothing in this Agreement,
express or implied, is intended to confer on any Person other
than the parties hereto or their respective successors and
assigns, any rights, remedies, obligations or liabilities under
or by reason of this Agreement. Notwithstanding anything to the
contrary contained herein, from and after the Closing all rights,
benefits and obligations in favor of Holdco shall also inure to
the benefit of each of the other Acquiring Companies and Acquired
Companies and thereafter be enforceable by each of the other
Acquiring Companies and Acquired Companies to the same extent
such rights, benefits and obligations are enforceable by Holdco;
provided that in no event may Acquisition LP, Holdco, the other
Acquiring Companies and/or the Acquired Companies recover
duplicate Holdco Indemnified Costs or other recoveries hereunder.
15.9.Assignability. Neither this Agreement nor any of the parties'
rights hereunder shall be assignable by any party hereto without
the prior written consent of the other party hereto; provided,
however, that to the extent requested by a lender pursuant to the
Senior Bank Commitment Letter, the parties shall execute and
deliver such documents as may be necessary to effect a collateral
assignment of the rights arising under this Agreement to the
lenders under the Senior Bank Commitment Letter.
15.10. Interpretation; Effect of Headings. The headings of the various
sections and subsections herein are inserted merely as a matter
of convenience and for reference and shall not be construed as in
any manner defining, limiting, or describing the scope or intent
of the particular sections to which they refer, or as affecting
the meaning or construction of the language in the body of such
sections. The words "this Agreement," "herein," "hereby,"
"hereunder," and "hereof," and words of similar import, refer to
this Agreement as a whole and not to any particular subdivision
unless expressly so limited. The words "this Article," "this
Section" and "this subsection" and words of similar import, refer
only to the Articles, Sections or subsections hereof in which
such words occur. The word "or" is not exclusive, and the word
"including" (in its various forms) means "including without
limitation." Pronouns in masculine, feminine or neuter genders
shall be construed to state and include any other gender and
words, terms and titles (including terms defined herein) in the
singular form shall be construed to include the plural and vice
versa, unless the context otherwise expressly requires. Unless
the context otherwise requires, all defined terms contained
herein shall include the singular and plural and the conjunctive
and disjunctive forms of such defined terms. The table of
contents and headings contained in this Agreement are for
reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement.
15.11. Exhibits; Schedules. All Exhibits and Schedules referred to in
this Agreement are attached hereto and are incorporated herein by
reference as if fully set forth herein. The disclosure of any
matter in any Schedule shall not be deemed to constitute an
admission by any party or to otherwise imply that any such matter
is material or may have a Company Material Adverse Effect for
purposes of this Agreement.
15.12. Severability. Any term or provision of this Agreement which is
invalid or unenforceable in any jurisdiction shall 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 other provisions of this
Agreement in any other jurisdiction.
15.13. Construction. The language in all parts of this Agreement shall
in all cases be construed as a whole according to its fair
meaning, strictly neither for nor against any party hereto, and
without implying a presumption that the terms thereof shall be
more strictly construed against one party by reason of the rule
of construction that a document is to be construed more strictly
against the person who himself drafted same. It is hereby agreed
that representatives of both parties have participated in the
preparation hereof.
15.14. Counterparts. This Agreement may be executed and delivered
(including by facsimile transmission), in one or more
counterparts, each of which shall be regarded as an original and
all of which shall constitute one and the same instrument.
15.15. Publicity. Except as may be necessary in connection with
seeking the financings contemplated by the Senior Bank Commitment
Letter and the Bridge Commitment Letter or in connection with the
Financing and except as mutually agreed in writing by ConAgra and
Acquisition LP, none of the parties hereto shall issue any press
release or make any public statement or disclosure pertaining to
the terms of this Agreement or the transactions contemplated
hereby (except as required by Law).
15.16. Consent to Jurisdiction. THE PARTIES HERETO HEREBY IRREVOCABLY
SUBMIT TO THE EXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL
OR DELAWARE STATE COURT SITTING IN WILMINGTON, DELAWARE IN ANY
ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT
AND EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY AGREES THAT ALL
CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING SHALL BE HEARD AND
DETERMINED IN ANY SUCH COURT AND IRREVOCABLY WAIVES ANY OBJECTION
IT MAY NOW OR HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH SUIT,
ACTION OR PROCEEDING BROUGHT IN SUCH COURT OR THAT SUCH COURT IS
AN INCONVENIENT FORUM. THE PARTIES HERETO SHALL CAUSE ALL
ACQUIRED COMPANIES AND ACQUIRING COMPANIES TO BE BOUND BY THIS
SECTION.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the date first above written.
CONAGRA: ACQUISITION LP:
ConAgra Foods, Inc., HMTF Rawhide, L.P.
a Delaware corporation
By: HMTF RW, L.L.C., its General Partner
By: /s/ Dwight J. Goslee By: Hicks, Muse, Tate & Furst Equity
------------------------------ Fund V, L.P., its sole member
Dwight J. Goslee,
Executive Vice President, Operations
Control and Development
By: HM5/GP LLC, its General Partner
By: /s/ Edward Herring
___________________________
Edward Herring,
Vice President
HOLDCO:
S&C Holdco, Inc.,
a Delaware corporation
By: /s/ Dwight J. Goslee
_____________________________
Dwight J. Goslee, President