Exhibit 10.1
REORGANIZATION AGREEMENT
by and between
SEABOARD CORPORATION
and
SEABOARD FLOUR CORPORATION
As of October 18, 2002
TABLE OF CONTENTS
Page
ARTICLE I TRANSFER OF ASSETS 2
SECTION 1.1 TRANSFER 2
SECTION 1.2 EXCLUDED ASSETS; NO LIABILITIES 2
SECTION 1.3 PURCHASE AND SALE AGREEMENT 2
ARTICLE II CONSIDERATION 2
SECTION 2.1 CASH CONSIDERATION 2
SECTION 2.2 STOCK CONSIDERATION 2
ARTICLE III ADDITIONAL SHARES 3
SECTION 3.1 DEFINITIONS 3
SECTION 3.2 SETTLEMENTS 4
SECTION 3.3 REVIEW RIGHTS; OTHER MATTERS 4
SECTION 3.4 INDEMNIFICATION CLAIMS 6
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF FLOUR 6
SECTION 4.1 ORGANIZATION 6
SECTION 4.2 AUTHORIZATION 6
SECTION 4.3 ABSENCE OF RESTRICTIONS AND CONFLICTS 7
SECTION 4.4 TITLE TO ASSETS; RELATED MATTERS 7
SECTION 4.5 FINANCIAL STATEMENTS 8
SECTION 4.6 UNDISCLOSED LIABILITIES 8
SECTION 4.7 ABSENCE OF CERTAIN CHANGES 8
SECTION 4.8 LEGAL PROCEEDINGS 9
SECTION 4.9 COMPLIANCE WITH LAW 9
SECTION 4.10 TAX RETURNS; TAXES 9
SECTION 4.11 BROKERS, FINDERS AND INVESTMENT BANKERS 10
SECTION 4.12 INVESTMENT AND SECURITIES MATTERS 10
SECTION 4.13 DISCLOSURE 11
ARTICLE V REPRESENTATIONS AND WARRANTIES OF SEABOARD 11
SECTION 5.1 ORGANIZATION 11
SECTION 5.2 AUTHORIZATION 11
SECTION 5.3 NEW SEABOARD SHARES 12
SECTION 5.4 BROKERS, FINDERS AND INVESTMENT BANKERS 12
ARTICLE VI CERTAIN COVENANTS AND AGREEMENTS 12
SECTION 6.1 PUBLIC ANNOUNCEMENTS 12
SECTION 6.2 EXPENSES 12
SECTION 6.3 FURTHER ASSURANCES 12
SECTION 6.4 LLC MERGER 13
ARTICLE VII CLOSING DELIVERIES 13
SECTION 7.1 DOCUMENTS DELIVERED BY FLOUR 13
SECTION 7.2 DOCUMENTS DELIVERED BY SEABOARD 13
ARTICLE VIII INDEMNIFICATION 13
SECTION 8.1 INDEMNIFICATION OBLIGATIONS OF FLOUR 13
SECTION 8.2 INDEMNIFICATION OBLIGATIONS OF SEABOARD 14
SECTION 8.3 INDEMNIFICATION PROCEDURE 14
SECTION 8.4 CLAIMS PERIOD 16
ARTICLE IX MISCELLANEOUS PROVISIONS 17
SECTION 9.1 NOTICES 17
SECTION 9.2 SCHEDULES AND EXHIBITS 17
SECTION 9.3 ASSIGNMENT; SUCCESSORS IN INTEREST 17
SECTION 9.4 NUMBER; GENDER 18
SECTION 9.5 CAPTIONS 18
SECTION 9.6 CONTROLLING LAW; AMENDMENT 18
SECTION 9.7 CONSENT TO JURISDICTION, ETC 18
SECTION 9.8 SEVERABILITY 18
SECTION 9.9 COUNTERPARTS 19
SECTION 9.10 ENFORCEMENT OF CERTAIN RIGHTS 19
SECTION 9.11 WAIVER 19
SECTION 9.12 INTEGRATION 19
SECTION 9.13 RELATIONSHIP OF THE PARTIES 19
SECTION 9.14 BUSINESS DAY 19
LIST OF EXHIBITS
Exhibit A Form of Agreement and Plan of Merger
LIST OF SCHEDULES
Schedule 2.1 Liabilities to be Repaid
Schedule 2.2 Calculation of Unconditional Shares
Schedule 4.3(b) Absence of Restrictions and Conflicts
Schedule 4.6 Undisclosed Liabilities
Schedule 4.7 Absence of Certain Changes
Schedule 4.9 Compliance with Law
Schedule 4.10(a) Tax Exceptions
REORGANIZATION AGREEMENT
THIS REORGANIZATION AGREEMENT (this "Agreement"), dated as
of October 18, 2002 (the "Effective Date"), is made and entered
into by and between SEABOARD CORPORATION, a Delaware corporation
("Seaboard"), and SEABOARD FLOUR CORPORATION, a Delaware
corporation ("Flour"). Seaboard and Flour are sometimes
individually referred to herein as a "Party" and collectively as
the "Parties."
W I T N E S S E T H:
WHEREAS, the Board of Directors of Seaboard (the "Seaboard
Board") has determined that this Agreement and the transactions
contemplated hereby are fair to, advisable and in the best
interests of Seaboard and its stockholders, and has approved this
Agreement and the transactions contemplated hereby;
WHEREAS, the Board of Directors of Flour has determined that
this Agreement and the transactions contemplated hereby are fair
to, advisable and in the best interests of Flour and its
stockholders, and has approved, and has recommended to the
stockholders of Flour that they approve, this Agreement, the
Merger Agreement (as hereinafter defined) and the other
transactions contemplated hereby and thereby and the stockholders
of Flour have so approved this Agreement, the Merger Agreement
and the other transactions contemplated hereby and thereby;
WHEREAS, as the first step in the transactions contemplated
hereby, the Parties desire for Seaboard to acquire from Flour,
and for Flour to transfer to Seaboard, the assets described
herein, which assets constitute substantially all of the assets
of Flour, in exchange for newly issued shares of common stock,
par value $1.00 per share ("Seaboard Common Stock"), of Seaboard
and cash, all upon the terms and subject to the conditions set
forth herein (the "Transfer");
WHEREAS, as the second step in the transactions contemplated
hereby, Flour will liquidate for federal income Tax (as
hereinafter defined) purposes by merging itself, pursuant to the
terms of the Agreement and Plan of Merger attached hereto as
Exhibit A (the "Merger Agreement"), with and into Seaboard Flour
LLC, a wholly owned subsidiary of Flour and a Delaware limited
liability company ("Flour LLC"), so that the stockholders of
Flour will become the members of Flour LLC and will own all of
the equity interests of Flour LLC (the "Merger" and, together
with the Transfer, the "Transaction"); and
WHEREAS, the Transaction is intended to qualify as a
reorganization pursuant to the provisions of Section 368(a)(1)(D)
of the Internal Revenue Code of 1986, as amended (the "Code").
NOW, THEREFORE, in consideration of the foregoing and the
respective representations, warranties, covenants, agreements and
conditions hereinafter set forth, and intending to be legally
bound hereby, the Parties agree as follows:
ARTICLE I
TRANSFER OF ASSETS
SECTION 1.1 Transfer. Subject to the terms and conditions of
this Agreement, Flour hereby grants, sells, assigns, transfers
and delivers to Seaboard, and Seaboard hereby purchases and
acquires from Flour, all right, title and interest in and to the
following assets, properties and rights of Flour:
(a) 1,120,511.75 shares of Seaboard Common Stock (the "Old
Seaboard Shares"); and
(b) all rights of Flour to receive Earnout Payments (as
hereinafter defined) under the Purchase and Sale Agreement (as
hereinafter defined) (including, without limitation, the right to
enforce such payments).
Section 1.2 Excluded Assets; No Liabilities. It is expressly
understood that Seaboard shall not acquire any assets of Flour or
any Flour Subsidiary (as hereinafter defined) pursuant to this
Agreement other than as set forth in Section 1.1. It is further
expressly understood that Seaboard shall not assume, agree to
pay, discharge or satisfy any liability or obligation of any
nature whatsoever of Flour or any Flour Subsidiary.
Section 1.3 Purchase and Sale Agreement. Prior to the
execution and delivery of this Agreement, Flour entered into that
certain Purchase and Sale Agreement (the "Purchase and Sale
Agreement"), dated October 18, 2002, by and between Flour and
Flour Holdings LLC, a Delaware limited liability company
("Holdings"). Pursuant to the terms of the Purchase and Sale
Agreement, Flour is entitled to receive "Earnout Payments" (as
such term is defined in the Purchase and Sale Agreement).
ARTICLE II
CONSIDERATION
SECTION 2.1 Cash Consideration. Concurrent with the execution
and delivery of this Agreement, Seaboard has delivered to Flour
$47,240,643.01 in immediately available funds, which shall
immediately be used by Flour to pay the liabilities and
obligations of Flour listed on Schedule 2.1.
Section 2.2 Stock Consideration. Concurrent with the
execution and delivery of this Agreement, Seaboard has delivered
to Flour 888,096.90 shares of Seaboard Common Stock (the
"Unconditional Shares"). The calculation of the number of the
Unconditional Shares was determined as set forth on Schedule 2.2.
In addition, Seaboard may be required to issue to Flour
additional shares of Seaboard Common Stock (the "Additional
Shares"), as set forth pursuant to Article III below.
ARTICLE III
ADDITIONAL SHARES
SECTION 3.1 Definitions. For purposes of this Agreement, the
following terms have the meanings set forth below:
"Applicable Share Price" shall mean the average of the
per share closing sales price of Seaboard Common Stock during the
regular trading sessions on the American Stock Exchange (or any
successor exchange) for each of the ten (10) full trading days
immediately preceding (but not including) the applicable Periodic
Settlement Calculation Date or Final Settlement Calculation Date.
The Applicable Share Price shall be equitably adjusted as
necessary to reflect the effect of any forward or reverse stock
split, stock dividend, recapitalization, or other similar change
with respect to Seaboard Common Stock occurring during or after
such ten (10) day trading period and prior to the applicable
Periodic Settlement Date or Final Settlement Date.
"Final Settlement Calculation Date" shall mean September 17, 2007.
"Final Settlement Date" shall mean the date which is twenty (20)
Business Days after the Final Settlement Calculation Date.
"Firm" shall mean Ernst & Young LLP or such other
independent public accounting firm as is mutually acceptable to
Seaboard and Flour.
"Flour Tax Attributes" shall mean any net operating loss,
net capital loss, excess charitable contributions, unused Tax
credits and other similar Tax items attributable to Flour and the
Flour Subsidiaries which are available to Seaboard following
consummation of the Transaction.
"Net Proceeds" shall mean, as of and through any
particular date, the sum of (a) the cumulative Earnout Payments
received by Seaboard less any Taxes paid or owed by Seaboard with
respect to such Earnout Payments (using the assumptions set forth
in the last sentence of Section 3.3(b)), all as of such date, and
(b) the amount by which Seaboard's actual cumulative liability
for income Taxes through such date, as reflected on all Tax
Returns (as hereinafter defined) (including amended returns and
claims for refund) filed by Seaboard on or prior to such date and
calculated by taking into account all Flour Tax Attributes to the
extent actually utilized by Seaboard, is less than Seaboard's
cumulative liability for income Taxes through such date,
calculated by assuming no utilization by Seaboard of any Flour
Tax Attributes in any Taxable period.
"Net Proceeds Account" shall mean, as of any particular
date, the cumulative Net Proceeds as of and through such date
less the sum of (a) the cumulative Seaboard Losses, if any,
applied against the Net Proceeds Account as of and through such
date by Seaboard in accordance with, and as adjusted by, Section
3.4, plus (b) the cumulative Net Proceeds Settled as of and
through the day immediately prior to such date.
"Net Proceeds Settled" shall mean, as of and through any
particular date, the aggregate amount of Net Proceeds actually
included (after reduction for any Seaboard Losses pursuant to
Section 3.4), on or prior to such date, in a calculation of
Additional Shares payable pursuant to this Agreement.
"Periodic Settlement Calculation Date" shall mean the
first Business Day of each calendar quarter commencing on July 1,
2003 and ending on July 2, 2007.
"Periodic Settlement Date" shall mean each date which is
twenty (20) Business Days after a Periodic Settlement Calculation
Date.
"Seaboard Losses" shall have the meaning attributed
thereto in Section 8.1.
Section 3.2 Settlements.
(a) Periodic Settlements. Subject to the provisions of Section
3.2(c), on each Periodic Settlement Date, Seaboard shall issue to
Flour, for no additional consideration, a number of Additional
Shares equal to (i) the positive balance, if any, of the Net
Proceeds Account as of the immediately preceding Periodic
Settlement Calculation Date, divided by (ii) the Applicable Share
Price.
(b) Final Settlement. Subject to the provisions of Section3.2(c),
on the Final Settlement Date, Seaboard shall issue to
Flour, for no additional consideration, a number of Additional
Shares equal to (i) the positive balance, if any, of the Net Proceeds
Account as of the Final Settlement Calculation Date, divided by
(ii) the Applicable Share Price. If Seaboard, in its good faith
discretion, determines that, as of the Final Settlement Calculation Date,
there are remaining Flour Tax Attributes available to and usable by
Seaboard, then the Net Proceeds Account shall include an amount, also
determined in good faith by Seaboard, equal to the net present value to
Seaboard of such remaining Flour Tax Attributes.
(c) Maximum Additional Shares. Notwithstanding anything to the
contrary herein, in no event shall Seaboard be obligated or
permitted to issue more than 232,414.85 shares (the "Maximum
Number") of Seaboard Common Stock pursuant to this Article III.
The Maximum Number shall be equitably adjusted as necessary to
reflect the effect of any forward or reverse stock split, stock
dividend, recapitalization, or other similar change with respect
to Seaboard Common Stock occurring after the Effective Date and
on or prior to the Final Settlement Date. In the event that
Seaboard has issued the Maximum Number of shares of Seaboard
Common Stock pursuant to this Article III, it is expressly
understood that any subsequent Earnout Payments that would
otherwise be included in a calculation of Additional Shares shall
nonetheless be retained by Seaboard and Seaboard shall have no
further obligations under this Article III to issue any
additional Shares.
Section 3.3 Review Rights; Other Matters.
(a) Calculation of Additional Shares. Within five (5) Business
Days following each Periodic Settlement Calculation Date and the
Final Settlement Calculation Date, Seaboard shall prepare and
submit to Flour a statement setting forth, in reasonable detail,
Seaboard's calculation of the number of Additional Shares for
such Periodic Settlement Calculation Date or Final Settlement
Calculation Date, together with reasonably detailed support for
such calculations (including calculations of Applicable Share
Price, Net Proceeds, Net Proceeds Account, and Net Proceeds
Settled). If Flour disputes the correctness of Seaboard's
calculation of the number of Additional Shares, Flour shall
notify Seaboard in writing of the objections within five (5)
Business Days of receipt of Seaboard's calculations. If Flour
fails to deliver such written notice of objections within such
time, Flour shall be deemed to have accepted Seaboard's
calculations. The Parties shall endeavor in good faith to
resolve any disputed matters within five (5) Business Days after
the receipt of a notice of objections. If the Parties are unable
to resolve all of the items that were identified in the notice of
objection, Seaboard and Flour will jointly retain the Firm to
resolve any disagreements. Seaboard and Flour will direct the
Firm to render a determination within ten (10) Business Days of
its retention and Seaboard, Flour and their respective agents
will cooperate with the Firm during its engagement. The Firm
will determine the actual number of Additional Shares for the
applicable period. The determination of the Firm in respect of
the correctness of each matter in dispute shall be conclusive and
binding on the Parties. The cost of the Firm shall be borne one-
half by Flour and one-half by Seaboard.
(b) Accounting and Tax Matters. The calculation of the Additional
Shares shall be determined first in accordance with this Agreement and
second in accordance with generally accepted accounting principles.
The Parties acknowledge that the policies, practices and procedures
contemplated by this Section 3.3(b) are to be applied only for purposes
of calculating the Additional Shares and shall not in any way limit the
manner in which Seaboard may apply accounting procedures for financial
accounting and reporting purposes. Unless otherwise hereafter agreed
by Seaboard and Flour, it is understood that Seaboard will use, to the
extent permissible under the Code, the following guidelines in its
preparation of Tax Returns for Taxes payable with respect to Earnout
Payments received by Seaboard: (i) Seaboard's Tax basis in the right
to receive the Earnout Payments equals Flour's Tax basis in the assets
that were transferred pursuant to the Purchase and Sale Agreement, (ii)
Seaboard will recognize imputed interest income under the principles of
Section 483 of the Code in respect of each Earnout Payment received, and
(iii) the "open transaction" method will apply to Seaboard's receipt of
the Earnout Payments (other than the portion thereof treated as imputed
interest income), meaning that Seaboard will recover its Tax basis in the
Earnout Payments before reporting any Taxable gain therefrom. The
following assumptions shall be made with respect to the determination of
Taxes paid or owed by Seaboard with respect to the Earnout Payments:
(A) any Taxable interest income or other gain recognized by Seaboard in
respect of the Earnout Payments will be subject to Tax at the highest
marginal federal and state rate applicable to Seaboard at the time of the
receipt of such Earnout Payments and (B) no net operating losses, net
capital losses, excess charitable contributions, unused Tax credits or
other similar Tax attributes that are otherwise available to Seaboard
shall be considered in such calculation.
(c) Assignment of Earnout Payments. Flour will immediately
notify Holdings of the assignment hereunder of its right to
receive the Earnout Payments and all Earnout Payments shall be
made directly to Seaboard pursuant to the terms of the Purchase
and Sale Agreement.
(d) Cooperation. Seaboard shall make available to Flour, upon
reasonable request and in accordance with reasonable and
customary practices, the books, records, documents and workpapers
underlying the preparation and review of Seaboard's calculations
of the Additional Shares and Flour shall maintain the
confidentiality of all such materials which are not otherwise
available to the public.
(e) Other Matters. The Parties agree and acknowledge that the
right to receive any Additional Shares pursuant to this Article
III: (i) is not represented by any form of certificate or
instrument and (ii) shall not be assignable or transferable by
Flour (except by operation of law).
Section 3.4 Indemnification Claims. Notwithstanding anything
in this Agreement to the contrary, in the discretion of Seaboard,
the Net Proceeds Account may be reduced by the amount of (a) any
Seaboard Losses (for which a final and binding determination of
the merits and amount has been made or for which the Parties have
otherwise agreed) payable to Seaboard pursuant to Section 8.1 and
(b) any reserves established in good faith by Seaboard from time
to time with respect to any asserted but unresolved claims which
could result in Seaboard Losses payable to Seaboard pursuant
Section 8.1 (which reserves shall be released as and when final
determinations or agreements are reached with respect to such
claims).
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF FLOUR
Flour hereby represents and warrants to Seaboard as follows:
Section 4.1 Organization. Flour is a corporation duly
incorporated, validly existing, and in good standing under the
laws of the State of Delaware. Each of Flour LLC and Holdings is
a limited liability company duly formed, validly existing, and in
good standing under the laws of the State of Delaware. Flour,
Flour LLC and Holdings are sometimes collectively referred to
herein as the "Flour Entities." Each Flour Entity has all
requisite power and authority to own, lease and operate its
respective properties and to carry on its respective businesses
as now being conducted.
Section 4.2 Authorization. Flour has full power and authority
to execute and deliver this Agreement and each Flour Entity has
full power and authority to execute and deliver any other
certificate, agreement, document or other instrument (including,
without limitation, the Purchase and Sale Agreement and the
Merger Agreement) to be executed and delivered by it in
connection with the transactions contemplated by this Agreement
(collectively, the "Flour Ancillary Documents"). Each Flour
Entity has full power and authority to perform any of its
respective obligations under this Agreement and the Flour
Ancillary Documents and to consummate the transactions
contemplated hereby and thereby, as appropriate. The execution
and delivery of this Agreement by Flour and the Flour Ancillary
Documents by each Flour Entity, as appropriate, and the
performance by each Flour Entity of any of its obligations
hereunder and thereunder and the consummation of the transactions
provided for herein and therein have been duly and validly
authorized by all necessary board and stockholder action on the
part of Flour and by all necessary limited liability company
action on the part of Flour LLC and Holdings. The directors and
stockholders of Flour have approved the execution, delivery and
performance of this Agreement and the Flour Ancillary Documents
and the consummation of the transactions contemplated by this
Agreement and by the Flour Ancillary Documents. This Agreement
and the Flour Ancillary Documents have been duly executed and
delivered by each Flour Entity (to the extent such Flour Entity
is a party) and do or will, as the case may be, constitute the
valid and binding agreements of each Flour Entity (to the extent
such Flour Entity is a party and, upon the consummation of the
Merger in the case of Flour LLC, to the extent Flour is a party),
enforceable against such Flour Entity in accordance with their
respective terms, subject to applicable bankruptcy, insolvency
and other similar laws affecting the enforceability of creditors'
rights generally, general equitable principles and the discretion
of courts in granting equitable remedies.
Section 4.3 Absence of Restrictions and Conflicts. The
execution, delivery and performance of this Agreement and the
Flour Ancillary Documents, the consummation of the transactions
contemplated by this Agreement and the Flour Ancillary Documents
and the fulfillment of and compliance with the terms and
conditions of this Agreement and the Flour Ancillary Documents do
not or will not (as the case may be), with the passing of time or
the giving of notice or both, violate or conflict with,
constitute a breach of or default under, result in the loss of
any benefit under, permit the acceleration of any obligation
under or create in any party the right to terminate, modify or
cancel, (a) any term or provision of the charter documents of
Flour or the Flour Subsidiaries, (b) except as set forth on
Schedule 4.3(b), any contract or agreement to which Flour or any
Flour Subsidiary is a party or by which Flour or any Flour
Subsidiary is bound, (c) any judgment, decree or order of any
court or governmental authority or agency to which Flour or any
Flour Subsidiary is a party or by which Flour or any Flour
Subsidiary or any of their respective properties are bound or
(d) any statute, law, rule, regulation or arbitration award
applicable to Flour or any Flour Subsidiary. Except for the
filing of a Certificate of Merger with the Delaware Secretary of
State in connection with the Merger, no consent, approval, order
or authorization of, or registration, declaration or filing with,
any governmental agency or public or regulatory unit, agency or
authority is required with respect to Flour or any Flour
Subsidiary in connection with the execution, delivery or
performance of this Agreement or the Flour Ancillary Documents or
the consummation of the transactions contemplated hereby or
thereby. For purposes of this Agreement, "Flour Subsidiary"
means Flour LLC, Holdings and any other entity, now or hereafter,
of which Flour owns, directly or indirectly, more than 50% of the
outstanding voting securities; provided, however, that the term
"Flour Subsidiary" shall not include Seaboard or any of its
subsidiaries.
Section 4.4 Title to Assets; Related Matters. Except with
respect to those obligations of Flour being paid off pursuant to
Section 2.1, Flour owns, and Seaboard will acquire, the Old
Seaboard Shares, free and clear of any and all liens, mortgages,
pledges, security interests, charges, claims, restrictions and
encumbrances of any nature whatsoever (collectively, "Liens").
By virtue of the Transfer hereunder, Flour has transferred good
title to the Old Seaboard Shares to Seaboard, free and clear of
any Liens. The Purchase and Sale Agreement is legal, valid,
binding and enforceable in accordance with its terms with respect
to Flour and Holdings. Flour's rights with respect to Earnout
Payments under the Purchase and Sale Agreement are freely
assignable to Seaboard and, by virtue of the Transfer hereunder,
Flour has assigned its rights with respect to Earnout Payments
under the Purchase and Sale Agreement to Seaboard, free and clear
of any Liens. Flour has not previously made any assignment of
its rights under the Purchase and Sale Agreement. There are no
existing defaults or breaches of Flour or Holdings under the
Purchase and Sale Agreement (or events or conditions which, with
notice or lapse of time or both, would constitute a default or
breach).
Section 4.5 Financial Statements. Flour has delivered to
Seaboard the following: (a) the audited balance sheets and
related audited annual statements of income, stockholders'
equity, and cash flows of Flour and its subsidiaries as of and
for the fiscal years ended May 31, 2002 and May 31, 2001 (the
"Year-End Financial Statements"); and (b) the unaudited balance
sheet of Flour and its subsidiaries as of September 30, 2002 and
the related unaudited statements of income, stockholders' equity,
and cash flows of Flour and its subsidiaries for the 4-month
period ended September 30, 2002 (the "Interim Financial
Statements"). The Year-End Financial Statements and the Interim
Financial Statements are hereinafter referred to, collectively,
as the "Financial Statements." The Financial Statements have
been prepared from, and are in accordance with, the books and
records of Flour and its subsidiaries, which books and records
are maintained in accordance with generally accepted accounting
principles ("GAAP") consistently applied throughout the periods
indicated, and such books and records have been maintained on a
basis consistent with the past practice of Flour. Each of the
balance sheets included in such Financial Statements (including
the related notes and schedules) fairly presents the financial
position of Flour and its subsidiaries as of the date of such
balance sheet, and each of the statements of income and cash
flows included in such Financial Statements (including any
related notes and schedules) fairly presents the results of
operations and changes in cash flows, as the case may be, of
Flour and its subsidiaries for the periods set forth therein, in
each case in accordance with GAAP (subject, in the case of
unaudited and interim financial statements, to normal year-end
adjustments and the omission of footnotes) consistently applied
during the periods involved. Since May 31, 2002, there has been
no change in any of the accounting policies, practices or
procedures of Flour or its subsidiaries.
Section 4.6 Undisclosed Liabilities. Except as disclosed on
Schedule 4.6, neither Flour nor any Flour Subsidiary has any
liabilities or obligations (whether absolute, contingent or
otherwise), which are not reflected or provided for in the
unaudited balance sheet of Flour and its subsidiaries at
September 30, 2002, except liabilities and obligations that have
been incurred since the date of such balance sheet in the
ordinary course of business.
Section 4.7 Absence of Certain Changes. Since September 30,
2002 and except as set forth on Schedule 4.7, there has not been
any Material Adverse Effect. As used in this Agreement, the term
"Material Adverse Effect" means any change, effect, condition,
event, or circumstance that has been, is, or is reasonably likely
to be materially adverse to the financial condition, business, or
results of operations of Flour and the Flour Subsidiaries, taken
as a whole. It is understood and agreed that every change,
effect, condition, event, or circumstance that, either
individually or in the aggregate, would result in a loss to Flour
or any Flour Subsidiary of $100,000 or more over any consecutive
12-month period shall be deemed to be a Material Adverse Effect
for purposes of this Agreement. Since September 30, 2002, except
pursuant to transactions contemplated by this Agreement, neither
Flour nor any Flour Subsidiary has acquired any property from,
or made any loan to, any director, officer or stockholder of
Flour, or any Person (as hereinafter defined) with whom any such
director, officer or stockholder is related by blood, marriage or
adoption or any entity in which such director, officer or
stockholder owns a controlling interest. For purposes of this
Agreement, "Person" means any individual, corporation, limited
liability company, partnership, joint venture, trust,
unincorporated organization or government or any agency or
political subdivision thereof.
Section 4.8 Legal Proceedings. No action or proceeding has
been instituted against Flour or any Flour Subsidiary before any
federal, state or local or foreign government or any court,
administrative or regulatory agency or commission or other
governmental authority or agency, domestic or foreign (a
"Governmental Entity"), seeking to restrain or prohibit the
execution and delivery of this Agreement or the consummation of
the transactions contemplated by this Agreement.
Section 4.9 Compliance with Law. Flour and each Flour
Subsidiary is (and has been at all times during the applicable
statutes of limitation) in compliance with all applicable laws
(including, without limitation, applicable laws relating to
zoning, environmental matters and the safety and health of
employees), ordinances, regulations and orders of all
Governmental Entities. Except as set forth in Schedule 4.9,
(i) neither Flour nor any Flour Subsidiary has been charged with
or is now under investigation with respect to, a violation of any
applicable law, regulation, ordinance, order or other requirement
of a Governmental Entity, (ii) neither Flour nor any Flour
Subsidiary is a party to or bound by any order, judgment, decree
or award of any Governmental Entity and (iii) Flour and each
Flour Subsidiary has filed all reports and has all licenses and
permits required to be filed with any Governmental Entity on or
before the Effective Date.
Section 4.10 Tax Returns; Taxes.
(a) Except as otherwise disclosed in Schedule 4.10(a):
(i) Flour and each Flour Subsidiary have filed all Tax Returns
due to have been filed through the Effective Date in accordance
with any applicable law and each such Tax Return is correct and
complete in all respects; (ii) all Taxes owed by Flour or any
Flour Subsidiary (whether or not shown on any Tax Return) have
been paid in and, since September 30, 2002, neither Flour nor any
Flour Subsidiary has incurred any Tax liability outside the
ordinary course of business; (iii) there are not now any
extensions of time in effect with respect to the dates on which
any Tax Returns were or are due to be filed other than extensions
with respect to the federal and state income and franchise Tax
Returns for the year ended May 31, 2002; (iv) all deficiencies
asserted as a result of any examination of a Tax Return have been
paid in full, accrued on the books of Flour, or finally settled,
and no issue has been raised in any such examination which, by
application of the same or similar principles, could be expected
to result in a proposed deficiency for any other period not so
examined; (v) no claims have been asserted and no proposals or
deficiencies for any Taxes are being asserted, proposed or
threatened, and no audit or investigation of any Tax Return is
currently underway, pending or threatened; (vi) no claim has ever
been made by any Governmental Entity in a jurisdiction where
Flour does not file Tax Returns that it is or may be subject to
taxation; (vii) Flour and each Flour Subsidiary has withheld and
paid all Taxes required to have been paid in connection with
amounts paid or owing to any employee, independent contractor,
creditor, stockholder or other third party; (viii) there are no
outstanding waivers or agreements by Flour or any Flour
Subsidiary for the extension of time for the assessment of any
Taxes or deficiency thereof, nor are there any requests for
rulings, outstanding subpoenas or requests for information,
notice of proposed reassessment of any property owned or leased
by Flour or any Flour Subsidiary or any other matter pending
between Flour or any Flour Subsidiary and any taxing authority;
(ix) there are no Liens for Taxes other than Liens for Taxes
which are not yet due and payable, nor are there any Liens which
are pending or threatened; (x) neither Flour nor any Flour
Subsidiary has any liability for the Taxes of any Person (other
than Flour and the Flour Subsidiaries) under Treasury Regulation
section 1.1502-6 (or any similar provision of state, local or
foreign law), as a transferee or successor, by contract or
otherwise; and (xi) the unpaid Taxes of Flour and the Flour
Subsidiaries (A) did not, as of September 30, 2002, exceed the
reserve for Tax liability (other than any reserve for deferred
Taxes established to reflect timing differences between book and
Tax income) set forth on the face of the balance sheet of Flour
and its subsidiaries at September 30, 2002 and (B) do not exceed
that reserve adjusted for passage of time through the date hereof
in accordance with the past custom and practice of Flour and its
subsidiaries in filing their Tax Returns.
(b) "Taxes" means all taxes, assessments, charges, duties, fees,
levies or other governmental charges (including interest,
penalties or additions associated therewith), including income,
franchise, capital stock, real property, personal property,
tangible, withholding, employment, payroll, social security,
social contribution, unemployment compensation, disability,
transfer, sales, use, excise, gross receipts, value-added and all
other taxes of any kind for which Flour or any Flour Subsidiary
may have any liability imposed by any Governmental Entity,
whether disputed or not, and any charges, interest or penalties
imposed by any Governmental Entity. "Tax Return" shall mean any
report, return, declaration or other information required to be
supplied to a Governmental Entity in connection with Taxes,
including estimated returns and reports of every kind with
respect to Taxes.
Section 4.11 Brokers, Finders and Investment Bankers. Neither
Flour nor any Flour Subsidiary has employed any broker, finder or
investment banker or incurred any liability for any investment
banking fees, financial advisory fees, brokerage fees or finders'
fees in connection with the transactions contemplated by this
Agreement.
Section 4.12 Investment and Securities Matters.
(a) Flour acknowledges and understands that the (i) issuance of
the Unconditional Shares and the Additional Shares (together, the
"New Seaboard Shares") will not be registered under the
Securities Act of 1933, as amended (the "Securities Act"), or any
other applicable securities laws and (ii) issuance of the New
Seaboard Shares is intended to be exempt from registration under
the Securities Act and any other applicable securities laws by
virtue of certain exemptions thereunder, including Section 4(2)
of the Securities Act, and, therefore, the New Seaboard Shares
cannot be resold unless registered under the Securities Act and
any other applicable securities laws or unless an exemption from
registration is available.
(b) Flour is acquiring the New Seaboard Shares solely for its
own account for investment purposes and not with a view toward
any distribution in violation of the Securities Act or any other
applicable securities laws.
(c) Flour is an "accredited investor" as that term is defined in
Rule 501(a) of Regulation D promulgated under the Securities Act.
(d) Flour acknowledges and agrees that the certificates representing
the New Seaboard Shares shall bear substantially the following legend:
the shares represented by this certificate have not
been registered under the securities act of 1933, as
amended (the "securities act"), or under any other
applicable securities laws in reliance upon various
exemptions therefrom. these shares have been acquired
for investment and may not be offered for sale, sold,
transferred, or otherwise disposed of, nor will any
assignee or transferee thereof be recognized by the
corporation as having any interest in such shares, in
the absence of (i) an effective registration statement
with respect to the shares under the securities act or
(ii) an opinion of holder's counsel, which counsel and
opinion of holder's counsel shall each be reasonably
satisfactory to the corporation, to the effect that the
transaction by which such shares will be offered for
sale, sold, transferred, or otherwise disposed of is
exempt from or otherwise in compliance with the
registration requirements of the securities act and any
other applicable securities laws.
Section 4.13 Disclosure. No representation, warranty or
covenant made by Flour in this Agreement, the Schedules or the
Exhibits attached to this Agreement, or any of the Flour
Ancillary Documents contains an untrue statement of a material
fact or omits to state a material fact required to be stated
herein or therein or necessary to make the statements contained
herein or therein not misleading.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF SEABOARD
Seaboard hereby represents and warrants to Flour as follows:
Section 5.1 Organization. Seaboard is a corporation duly
incorporated, validly existing, and in good standing under the
laws of the State of Delaware.
Section 5.2 Authorization. Seaboard has full power and
authority to execute and deliver this Agreement and any other
certificate, agreement, document or other instrument to be
executed and delivered by it in connection with the transactions
contemplated by this Agreement (collectively, the "Seaboard
Ancillary Documents") and to perform its obligations under this
Agreement and the Seaboard Ancillary Documents and to consummate
the transactions contemplated hereby and thereby. The execution
and delivery of this Agreement and the Seaboard Ancillary
Documents by Seaboard and the performance by Seaboard of its
obligations hereunder and thereunder and the consummation of the
transactions provided for herein and therein have been duly and
validly authorized by the Seaboard Board, and no other corporate
proceeding or action on the part of Seaboard, the Seaboard Board
or the stockholders of Seaboard are necessary therefor. Not in
limitation of the foregoing, the Seaboard Board has expressly
approved this Agreement and the transactions contemplated hereby,
including the acquisition of the New Seaboard Shares by Flour and
the subsequent acquisition of the New Seaboard Shares by Flour
LLC upon the Merger of Flour into Flour LLC, for purposes of
Section 203 of the Delaware General Corporation Law. This
Agreement and the Seaboard Ancillary Documents have been duly
executed and delivered by Seaboard, and do or will, as the case
may be, constitute the valid and binding agreement of Seaboard,
enforceable against Seaboard in accordance with their respective
terms, subject to applicable bankruptcy, insolvency and other
similar laws affecting the enforceability of creditors' rights
generally, general equitable principles and the discretion of
courts in granting equitable remedies.
Section 5.3 New Seaboard Shares. The New Seaboard Shares will
be, when issued in accordance with this Agreement, duly
authorized, validly issued, fully paid, and nonassessable and
will not be issued in violation of any preemptive rights. No
supplemental listing application is required to list the New
Seaboard Shares on the American Stock Exchange.
Section 5.4 Brokers, Finders and Investment Bankers. Except
for Xxxxx, Xxxxxxxx & Xxxx (the "Financial Advisor"), Seaboard
has not employed any broker, finder or investment banker or
incurred any liability for any investment banking fees, financial
advisory fees, brokerage fees or finders' fees in connection with
the transactions contemplated by this Agreement.
ARTICLE VI
CERTAIN COVENANTS AND AGREEMENTS
SECTION 6.1 Public Announcements. Subject to their respective
legal obligations (including requirements of stock exchanges and
other similar regulatory bodies), Seaboard and Flour shall
consult with one another regarding the timing and content of all
announcements regarding any aspect of this Agreement or the
transactions contemplated hereby to the financial community,
government agencies, employees, customers or the general public
and shall use reasonable efforts to agree upon the text of any
such announcement prior to its release.
Section 6.2 Expenses. Flour shall be responsible and pay for
all of the fees, costs and expenses of the Parties incurred in
connection with this Agreement and the transactions contemplated
hereby, including, without limitation, the fees, costs and
expenses of the Financial Advisor; provided, however, that
Seaboard shall pay, and Flour shall not be responsible for, the
compensation of the members of the special committee (the
"Special Committee") of the Seaboard Board and the fees, costs
and expenses of counsel to the Special Committee.
Section 6.3 Further Assurances. Flour and Seaboard covenant
and agree that from and after the Effective Date each will
execute, deliver and acknowledge (or cause to be executed,
delivered and acknowledged), from time to time at the reasonable
request of any Party and without further consideration, all such
further bills of sale, assignments, assumptions, deeds and
instruments and take all such further action as may be reasonably
necessary or appropriate to confirm or carry out the provisions
and intent of this Agreement.
Section 6.4 LLC Merger. As promptly as practicable following
consummation of the Transfer, Flour will merge itself with and
into Flour LLC pursuant to the terms of the Merger Agreement.
ARTICLE VII
CLOSING DELIVERIES
SECTION 7.1 Documents Delivered by Flour. As of the date
hereof, Flour has delivered, or caused to be delivered, to
Seaboard the following:
(a) the stock certificates representing the Old Seaboard Shares
and accompanying stock powers;
(b) an assignment of the right to receive the Earnout Payments
(the "Assignment Agreement"), in form satisfactory to Seaboard; and
(c) the legal and tax opinions of King & Spalding, counsel to
Flour, in form satisfactory to Seaboard.
Section 7.2 Documents Delivered by Seaboard. As of the date
hereof, Seaboard has delivered, or caused to be delivered, to
Flour the following:
(a) the stock certificates representing the Unconditional
Shares; and
(b) cancelled promissory notes and a release of any stock
pledges representing the payment in full of Flour's indebtedness
to Seaboard which was repaid pursuant to Section 2.1.
ARTICLE VIII
INDEMNIFICATION
SECTION 8.1 Indemnification Obligations of Flour. Flour will
indemnify, defend and hold harmless Seaboard and each of its
affiliates, officers, directors, employees, agents and
representatives and each of the heirs, executors, successors and
assigns of any of the foregoing (collectively, the "Seaboard
Indemnified Parties") from, against and in respect of any and all
claims, liabilities, obligations, losses, costs, expenses,
penalties, fines and judgments (at equity or at law) and damages
whenever arising or incurred (including, without limitation,
amounts paid in settlement, costs of investigation and reasonable
attorneys' fees and expenses) arising out of or relating to:
(a) any liability or obligation of any nature whatsoever
(whether arising before or after consummation of the transactions
contemplated by this Agreement) of Flour or any Flour Subsidiary;
(b) any breach or inaccuracy of any representation or warranty
made by Flour in this Agreement or in the Flour Ancillary Documents;
(c) any breach of any covenant, agreement or undertaking made by
Flour in this Agreement or in the Flour Ancillary Documents;
(d) any increase in Seaboard's actual liability for income Taxes
that results from the disallowance or recalculation of a Flour
Tax Attribute included in a calculation of Additional Shares;
(e) any inaccuracy or error contained in, or any challenge by
any Governmental Entity as to, the guidelines or assumptions set
forth in Section 3.3(b) with respect to the Tax consequences of
the receipt by Seaboard of the Earnout Payments; or
(f) any challenge by any Governmental Entity as to the treatment
of the Transaction as a "reorganization" under Section
368(a)(1)(D) of the Code; provided, however, that if any such
challenge results in the disallowance of a Flour Tax Attribute,
the amount of the Seaboard Loss attributable to such disallowance
shall be determined under Section 8.1(d) above.
The claims, liabilities, obligations, losses, costs, expenses,
penalties, fines and damages of the Seaboard Indemnified Parties
described in this Section 8.1 as to which the Seaboard
Indemnified Parties are entitled to indemnification are
hereinafter collectively referred to as the "Seaboard Losses."
Section 8.2 Indemnification Obligations of Seaboard. Seaboard
will indemnify and hold harmless Flour and its affiliates,
officers, directors, employees, agents and representatives and
each of the heirs, executors, successors and assigns of any of
the foregoing (collectively, the "Flour Indemnified Parties")
from, against and in respect of any and all claims, liabilities,
obligations, losses, costs, expenses, penalties, fines and
judgments (at equity or at law, including statutory and common)
and damages whenever arising or incurred (including, without
limitation, amounts paid in settlement, costs of investigation
and reasonable attorneys' fees and expenses) arising out of or
relating to:
(a) any breach or inaccuracy of any representation or warranty
made by Seaboard in this Agreement or in any of the Seaboard
Ancillary Documents; or
(b) any breach of any covenant, agreement or undertaking made by
Seaboard in this Agreement or in any of the Seaboard Ancillary
Documents.
The claims, liabilities, obligations, losses, costs, expenses,
penalties, fines and damages of the Flour Indemnified Parties
described in this Section 8.2 as to which the Flour Indemnified
Parties are entitled to indemnification are hereinafter
collectively referred to as the "Flour Losses."
Section 8.3 Indemnification Procedure.
(a) Promptly after receipt by a Seaboard Indemnified Party or a
Flour Indemnified Party (hereinafter collectively referred to as
an "Indemnified Party") of notice by a third party (including any
Governmental Entity) of any complaint or the commencement of any
audit, investigation, action or proceeding with respect to which
such Indemnified Party may be entitled to receive payment from
the other Party for any Seaboard Losses or Flour Losses (as the
case may be), such Indemnified Party will notify Seaboard or
Flour, as the case may be (the "Indemnifying Party"), promptly
following the Indemnified Party's receipt of such complaint or of
notice of the commencement of such audit, investigation, action
or proceeding; provided, however, that the failure to so notify
the Indemnifying Party will relieve the Indemnifying Party from
liability under this Agreement with respect to such claim only
if, and only to the extent that, such failure to notify the
Indemnifying Party results in the forfeiture by the Indemnifying
Party of rights and defenses otherwise available to the
Indemnifying Party with respect to such claim. The Indemnifying
Party will have the right, upon written notice delivered to the
Indemnified Party within ten (10) days thereafter assuming full
responsibility for any Seaboard Losses or Flour Losses (as the
case may be) resulting from such audit, investigation, action or
proceeding, to assume the defense of such audit, investigation,
action or proceeding, including the employment of counsel
reasonably satisfactory to the Indemnified Party and the payment
of the fees and disbursements of such counsel; provided, however,
if the Indemnified Party is a Seaboard Indemnified Party, such
Seaboard Indemnified Party shall be entitled to assume such
defense in its sole discretion. In the event that (i) the
Indemnifying Party declines or fails to assume the defense of the
audit, investigation, action or proceeding on the terms provided
above, (ii) the Indemnifying Party declines or fails to employ
counsel reasonably satisfactory to the Indemnified Party or (iii)
the Indemnified Party is a Seaboard Indemnified Party and elects
to assume the defense, in any case within such ten (10) day
period, then such Indemnified Party may employ counsel to
represent or defend it in any such audit, investigation, action
or proceeding and the Indemnifying Party will pay the reasonable
fees and disbursements of such counsel as incurred; provided,
however, that the Indemnifying Party will not be required to pay
the fees and disbursements of more than one (1) counsel for all
Indemnified Parties in any jurisdiction in any single audit,
investigation, action or proceeding, except that if an
Indemnified Party has been advised by counsel in writing that (i)
there are one or more defenses available to the Indemnified Party
which are different from or additional to those available to the
Indemnifying Party or another Indemnified Party or (ii) the
representation of the Indemnified Party and the Indemnifying
Party or another Indemnified Party by the same counsel would be
inappropriate under applicable standards of professional conduct
due to actual or potential differing interests between them, then
the Indemnified Party shall have the right to employ separate
counsel and in that event the reasonable fees and disbursements
of such separate counsel for the Indemnified Party shall be paid
by the Indemnifying Party. In any audit, investigation, action
or proceeding with respect to which indemnification is being
sought hereunder, the Indemnified Party or the Indemnifying
Party, whichever is not assuming the defense of such action, will
have the right to participate in such matter and to retain its
own counsel at such Party's own expense. The Indemnifying Party
or the Indemnified Party, as the case may be, will at all times
use reasonable efforts to keep the Indemnifying Party or the
Indemnified Party, as the case may be, reasonably apprised of the
status of the defense of any matter the defense of which they are
maintaining and to cooperate in good faith with each other with
respect to the defense of any such matter.
(b) No Indemnified Party may settle or compromise any claim or
consent to the entry of any judgment with respect to which
indemnification is being sought hereunder without the prior
written consent of the Indemnifying Party, unless (i) the
Indemnifying Party fails to assume and maintain the defense of
such claim pursuant to Section 8.3(a) or (ii) such settlement,
compromise or consent includes an unconditional release of the
Indemnifying Party (to the extent the Indemnifying Party is or
may be a party to such claim) from all liability arising out of
such claim. An Indemnifying Party may not, without the prior
written consent of the Indemnified Party, settle or compromise
any claim or consent to the entry of any judgment with respect to
which indemnification is being sought hereunder unless (i) such
settlement, compromise or consent includes an unconditional
release of the Indemnified Party from all liability arising out
of such claim, (ii) does not contain any admission or statement
suggesting any wrongdoing or liability on behalf of the
Indemnified Party and (iii) does not contain any equitable order,
judgment or term which in any manner affects, restrains or
interferes with the business of the Indemnified Party or any of
the Indemnified Party's affiliates.
(c) In the event an Indemnified Party claims a right to payment
pursuant to this Agreement, such Indemnified Party will send
written notice of such claim to the appropriate Indemnifying
Party. Such notice will summarize the basis for such claim. As
promptly as possible after the Indemnified Party has given such
notice, such Indemnified Party and the appropriate Indemnifying
Party will establish the merits and amount of such claim (by
mutual agreement, litigation, arbitration or otherwise) and,
within five (5) Business Days of the final determination of the
merits and amount of such claim, the Indemnifying Party will pay
to the Indemnified Party immediately available funds in an amount
equal to such claim as determined hereunder. Notwithstanding
anything herein to the contrary, under no circumstances shall
Seaboard be obligated to pay or advance any amount for any
liability or obligation of Flour or any Flour Subsidiary and
Flour shall take any and all action necessary or desirable in
order to prevent Seaboard from being required to make such
payment or advance (regardless of the merits of such claim),
including, but not limited to, advancing such amount to Seaboard
or the claimant or posting any bond or collateral with respect to
such claim.
Section 8.4 Claims Period. For purposes of this Agreement, a
"Claims Period" shall be the period during which a claim for
indemnification may be asserted under this Agreement by an
Indemnified Party. The Claims Periods under this Agreement shall
begin on the Effective Date and terminate on the expiration of
any applicable statutes of limitation. Notwithstanding the
foregoing, if, prior to the close of business on the last day of
the applicable Claims Period, an Indemnifying Party shall have
been properly notified of a claim for indemnity hereunder and
such claim shall not have been finally resolved or disposed of at
such date, such claim shall continue to survive and shall remain
a basis for indemnity hereunder until such claim is finally
resolved or disposed of in accordance with the terms hereof.
ARTICLE IX
MISCELLANEOUS PROVISIONS
SECTION 9.1 Notices. All notices, communications and
deliveries under this Agreement will be made in writing signed by
or on behalf of the Party making the same, will specify the
Section under this Agreement pursuant to which it is given or
being made, and will be delivered personally or sent by
registered or certified mail (return receipt requested) or by any
express mail or courier delivery service (with evidence of
delivery and postage and other fees prepaid) as follows:
To Seaboard: Seaboard Corporation
Department of Legal Affairs
0000 Xxxx 00xx Xxxxxx
Xxxxxxx Xxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxx
with a copy to: Xxxxxxxx & Worcester LLP
Xxx Xxxx Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxxxxxx X. Xxxxx
To Flour: Seaboard Flour LLC
000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx Xxxx, XX 00000
Attn: H. Xxxxx Xxxxxx
with a copy to: King & Spalding
000 Xxxxxxxxx Xxxxxx XX
Xxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxxx
or to such other representative or at such other address of a
party as such party may furnish to the other parties in writing.
Any such notice, communication or delivery shall be effective
upon the date of delivery or refusal of delivery, if sent by
personal delivery, registered, certified, or express mail, or
courier delivery, or upon the transmission by telecopy
transmission, if immediately confirmed by telephone or electronic
means.
Section 9.2 Schedules and Exhibits. The Schedules and
Exhibits to this Agreement are hereby incorporated into this
Agreement and are hereby made a part of this Agreement as if set
out in full in this Agreement.
Section 9.3 Assignment; Successors in Interest. No assignment
or transfer by any Party of such Party's rights and obligations
under this Agreement will be made except with the prior written
consent of the other Parties to this Agreement. Notwithstanding
anything herein to the contrary, the Merger of Flour into Flour
LLC is expressly contemplated by this Agreement and Flour LLC
shall succeed to the rights and obligations of Flour under this
Agreement by operation of law. This Agreement will be binding
upon and will inure to the benefit of the Parties and their
successors and permitted assigns, and any reference to a Party
will also be a reference to a successor or permitted assign.
Section 9.4 Number; Gender. Whenever the context so requires,
the singular number will include the plural and the plural will
include the singular, and the gender of any pronoun will include
the other genders.
Section 9.5 Captions. The titles, captions and table of
contents contained in this Agreement are inserted in this
Agreement only as a matter of convenience and for reference and
in no way define, limit, extend or describe the scope of this
Agreement or the intent of any provision of this Agreement.
Unless otherwise specified to the contrary, all references to
Articles and Sections are references to Articles and Sections of
this Agreement and all references to Schedules or Exhibits are
references to Schedules and Exhibits, respectively, to this
Agreement.
Section 9.6 Controlling Law; Amendment. This Agreement will
be governed by and construed and enforced in accordance with the
internal laws of the State of Delaware without reference to its
choice of law rules. This Agreement may not be amended, modified
or supplemented except by written agreement of the Parties.
Section 9.7 Consent to Jurisdiction, Etc. Each of the Parties
hereby irrevocably consents and agrees that any action, suit or
proceeding arising in connection with any disagreement, dispute,
controversy or claim arising out of or relating to this Agreement
or any related document (for purposes of this Section, a "Legal
Dispute") shall be brought only to the exclusive jurisdiction of
the courts of the State of Delaware or the federal courts located
in the State of Delaware. The Parties agree that, after a Legal
Dispute is before a court as specified in this Section 9.7 and
during the pendency of such Legal Dispute before such court, all
actions, suits or proceedings with respect to such Legal Dispute
or any other Legal Dispute, including, without limitation, any
counterclaim, cross-claim or interpleader, shall be subject to
the exclusive jurisdiction of such court. Each of the Parties
hereby waives, and agrees not to assert, as a defense in any
legal dispute, that such Party is not subject thereto or that
such action, suit or proceeding may not be brought or is not
maintainable in such court or that such Party's property is
exempt or immune from execution, that the action, suit or
proceeding is brought in an inconvenient forum or that the venue
of the action, suit or proceeding is improper. Each Party hereto
agrees that a final judgment in any action, suit or proceeding
described in this Section 9.7 after the expiration of any period
permitted for appeal and subject to any stay during appeal shall
be conclusive and may be enforced in other jurisdictions by suit
on the judgment or in any other manner provided by applicable
laws.
Section 9.8 Severability. Any provision of this Agreement
which is prohibited or unenforceable in any jurisdiction will, as
to such jurisdiction, be ineffective to the extent of such pro
hibition or unenforceability without invalidating the remaining
provisions of this Agreement, and any such prohibition or
unenforceability in any jurisdiction will not invalidate or
render unenforceable such provision in any other jurisdiction.
To the extent permitted by law, the Parties waive any provision
of law which renders any such provision prohibited or
unenforceable in any respect.
Section 9.9 Counterparts. This Agreement may be executed in
two (2) or more counterparts, each of which will be deemed an
original, and it will not be necessary in making proof of this
Agreement or the terms of this Agreement to produce or account
for more than one (1) of such counterparts.
Section 9.10 Enforcement of Certain Rights. Nothing expressed
or implied in this Agreement is intended, or will be construed,
to confer upon or give any Person other than the Parties, the
Indemnified Parties and their successors or permitted assigns,
any rights, remedies, obligations or liabilities under or by
reason of this Agreement, or result in such Person being deemed a
third party beneficiary of this Agreement.
Section 9.11 Waiver. Any agreement on the part of a Party to
any extension or waiver of any provision of this Agreement will
be valid only if set forth in an instrument in writing signed on
behalf of such Party. A waiver by a Party of the performance of
any covenant, agreement, obligation, condition, representation or
warranty will not be construed as a waiver of any other covenant,
agreement, obligation, condition, representation or warranty. A
waiver by any Party of the performance of any act will not
constitute a waiver of the performance of any other act or an
identical act required to be performed at a later time.
Section 9.12 Integration. This Agreement and the documents
executed pursuant to this Agreement supersede all negotiations,
agreements and understandings among the Parties with respect to
the subject matter of this Agreement and constitute the entire
agreement between the Parties.
Section 9.13 Relationship of the Parties. Nothing in this
Agreement shall create or constitute any agency, partnership or
joint venture arrangement by and between Seaboard and Flour.
Neither Seaboard nor Flour has the power or authority, express or
implied, to obligate or bind the other whatsoever.
Section 9.14 Business Day. As used in this Agreement, the term
"Business Day" means any day except Saturday, Sunday or any day
on which banks are generally not open for business in New York
City.
IN WITNESS WHEREOF, the Parties have caused this Agreement
to be duly executed, as of the date first above written.
SEABOARD CORPORATION
By: /s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title:Senior Vice President, Treasurer and
Chief Financial Officer
SEABOARD FLOUR CORPORATION
By: /s/ X. X. Xxxxxx
Name: X. X. Xxxxxx
Title:President
