EXHIBIT 10.10.2
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MASTER AGREEMENT
Between
UNITED PRODUCERS, INC.
And
SOUTHERN STATES COOPERATIVE, INC.
Dated: March 2, 2001
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TABLE OF CONTENTS
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Title Page
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Recitals....................................................................................................... 1
1. Purchase and Sale of Assets............................................................................... 1
2. Consideration for Assets.................................................................................. 1
2.1 Purchase Price..................................................................................... 1
2.2 Final Determination of Agreed Cash Amount.......................................................... 2
2.3 Assumption of Assumed Liabilities.................................................................. 2
2.4 Allocation of Purchase Price....................................................................... 3
3. Closing................................................................................................... 3
4. Documents to be Delivered at Closing...................................................................... 3
4.1 Documents to be Delivered by SSC to UPI............................................................ 3
4.2 Documents to be Delivered by UPI to SSC............................................................ 4
4.3 Passage of Title at Closing........................................................................ 4
5. Representations and Warranties by SSC..................................................................... 5
5.1 Corporate Organization............................................................................. 5
5.2 Corporate Authority................................................................................ 5
5.3 No Violation....................................................................................... 5
5.4 Title to Assets.................................................................................... 6
5.5 LLC Membership Interest............................................................................ 6
5.6 Contracts.......................................................................................... 6
5.7 Litigation......................................................................................... 6
5.8 Compliance with Laws............................................................................... 6
5.9 No Adverse Change.................................................................................. 7
5.10 Brokers............................................................................................ 7
6. Representations and Warranties by UPI..................................................................... 7
6.1 Corporate Organization............................................................................. 7
6.2 Corporate Authority................................................................................ 7
6.3 No Violation....................................................................................... 7
6.4 Brokers............................................................................................ 8
7. Covenants of SSC.......................................................................................... 8
7.1 Right of First Refusal............................................................................. 8
7.2 Employees.......................................................................................... 9
7.3 Post-Closing Accounting and Information Systems Support............................................ 9
7.4 Certain Post-Closing Transactions.................................................................. 9
8. Covenants of UPI.......................................................................................... 11
8.1 Certain Post-Closing Transactions.................................................................. 11
8.2 Retention of Records............................................................................... 11
9. Conditions Precedent to SSC's Obligation to Sell the Assets and to Consummate the Transactions............ 11
9.1 UPI's Performance.................................................................................. 11
9.2 Opinion of Counsel................................................................................. 12
9.3 Consents and Approvals............................................................................. 12
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10. Conditions Precedent to UPI's Obligation to Purchase the Assets and to Consummate the Transactions.......... 12
10.1 SSC's Performance.................................................................................. 12
10.2 Opinion of Counsel................................................................................. 12
10.3 Consents and Approvals............................................................................. 12
11. Survival of Representations and Warranties; Indemnification................................................. 12
11.1 Survival of Representations and Warranties......................................................... 12
11.2 SSC's Indemnification Obligations.................................................................. 13
11.3 UPI's Indemnification Obligations.................................................................. 13
11.4 Procedure for Indemnification Claims............................................................... 13
11.5 Limitations on Amount--SSC......................................................................... 15
11.5A Limitations on Amount--UPI......................................................................... 15
12. General Provisions.......................................................................................... 16
12.1 Public Announcements............................................................................... 16
12.2 Assurance of Further Action........................................................................ 16
12.3 Expenses........................................................................................... 16
12.4 Notices............................................................................................ 16
12.5 Rights Under this Agreement: Nonassignability...................................................... 17
12.6 Entire Agreement and Modification.................................................................. 17
12.7 Schedules.......................................................................................... 18
12.8 Governing Law...................................................................................... 18
12.9 Knowledge.......................................................................................... 18
12.10 Headings: References to Sections, Exhibits and Schedules........................................... 18
12.11 Counterparts....................................................................................... 18
LOCATION LIST OF DEFINED TERMS................................................................................... 20
LIST OF EXHIBITS AND SCHEDULES................................................................................... 22
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MASTER AGREEMENT
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THIS MASTER AGREEMENT (this "Agreement") is entered into this 2nd day of
March, 2001, between United Producers, Inc., an Ohio corporation organized and
deemed non-profit under Chapter 1729 of the Ohio Revised Code ("UPI"), and
Southern States Cooperative, Inc., a Virginia corporation ("SSC").
WITNESSETH
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WHEREAS, UPI desires to purchase from SSC, and SSC desires to sell to UPI,
certain assets of SSC relating to SSC's livestock marketing business, and UPI
and SSC desire to enter into certain additional arrangements, all upon the terms
and conditions hereinafter set forth; and
NOW, THEREFORE, the parties hereto agree as follows:
1. Purchase and Sale of Assets. Upon the terms and conditions set forth
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in this Agreement, UPI agrees to purchase from SSC, and SSC agrees to sell,
convey, assign, transfer and deliver to UPI, at the Closing provided for in
Section 3, the following assets (collectively, the "Assets"):
1.1 all files, records and information located at the Leased
Livestock Marketing Facilities and relating to the conduct of the business as
conducted by SSC at the Leased Livestock Marketing Facilities prior to the
Effective Time (the "Records");
1.2 the membership interest of SSC in Southern States/Parks, LLC, a
Virginia limited liability company (the "LLC"), identified with more
particularity on Exhibit 1.2 (the "LLC Membership Interest");
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1.3 the customer information identified on Exhibit 1.3 (the
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"Intellectual Property");
1.4 the inventories of livestock identified on Exhibit 1.4 (the
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"Inventory Items");
1.5 the inventories of raw materials and supplies located at the
livestock marketing facilities identified on Exhibit 1.5A (the "Leased Livestock
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Marketing Facilities"), and the trucks, tractors, trailers and equipment
identified on Exhibit 1.5B (collectively, the "Tangible Personal Property"); and
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1.6 any agreements, contracts, instruments or other similar
arrangements and rights thereunder (each, a "Contract") associated with the
Assets or the Leased Livestock Marketing Facilities, including without
limitation those identified on Exhibit 1.6 (the "Assigned Contracts").
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2. Consideration for Assets.
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2.1 Purchase Price. In consideration for the Assets, UPI will pay to
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SSC the sum of (i) sixty-five thousand and no/100 dollars ($65,000.00) plus (ii)
an amount equal to the Agreed Cash Amount, as defined below (collectively, the
"Purchase Price"). As used herein, the
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"Agreed Cash Amount" shall mean the sum of (x) the Agreed Value of the Inventory
Items plus (y) the Agreed Value of the Tangible Personal Property, each as
described and determined below. At Closing, UPI will pay to SSC in cash or
immediately available funds the sum of Six Hundred Thousand Dollars
($600,000.00), subject to adjustment pursuant to provisions of Section 2.2
below.
2.2 Final Determination of Agreed Cash Amount. The "Agreed Value of
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the Inventory Items" and the "Agreed Value of the Tangible Personal Property"
shall mean the respective amounts determined in accordance with this Section
2.2. Immediately prior to the Closing, SSC will conduct an inventory count of
the Inventory Items and the Tangible Personal Property. The results of such
inventory count shall be provided to UPI not later than five business days
following the Closing. UPI shall have a period of 15 days from receipt of such
inventory count to review and confirm the results of such inventory. The amount
of the Agreed Value of the Inventory Items shall be equal to the aggregate book
values, as shown on the normally-prepared records of SSC immediately prior to
Closing, of those Inventory Items identified in such inventory count. The amount
of the Agreed Value of the Tangible Personal Property shall be equal to the
aggregate book values, as shown on the normally-prepared records of SSC
immediately prior to Closing, of those items of Tangible Personal Property
identified in such inventory count. SSC and UPI shall provide to one another
information in their possession to facilitate such calculations, and shall work
collaboratively and in good faith to mutually determine the Agreed Value of the
Inventory Items and the Agreed Value of the Tangible Personal Property within 30
days after Closing. In the event that UPI and SSC are not able to mutually agree
on such values within such 30-day period, then the parties shall submit their
dispute for resolution to an independent certified public accounting firm
selected by reasonable mutual agreement of UPI and SSC. The costs of such
dispute resolution shall be borne equally by UPI and SSC. Not later than ten
days following agreement or final determination of the Agreed Value of the
Inventory Items and the Agreed Value of the Tangible Personal Property (i) UPI
shall pay to SSC, in immediately available funds, the amount by which (x) the
Agreed Cash Amount exceeds $535,000 or (ii) if the Agreed Cash Amount is less
than $535,000, SSC shall pay to UPI the amount by which (x) $535,000 exceeds (y)
the Agreed Cash Amount.
2.3 Assumption of Assumed Liabilities.
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2.3.1 UPI will assume and undertake to perform, pay and
discharge only those obligations arising and accruing from and after the
Effective Time, as defined below, under and pursuant to the agreements
identified on Exhibit 1.6 and any other Assigned Contracts which UPI agrees
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to assume in accordance with Section 2.3.2 (the "Assumed Liabilities"),
excluding in all cases any obligation resulting from, arising out of or
caused by any default or non-performance by SSC prior to the date hereof
with respect to the Assigned Contracts.
2.3.2 SSC may, from time to time, notify UPI of any Contract
included in the definition of "Assigned Contracts" which is not identified
on Exhibit 1.6, if any, and which SSC desires that UPI assume. In UPI's
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sole discretion, UPI may either expressly assume such Contract or refuse to
accept such Contract. In the event that UPI expressly assumes such
Contract, then those obligations arising and accruing from and after the
Effective Time, as defined below, under and pursuant to such Contract shall
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thereupon be deemed to be additional Assumed Liabilities, and such Contract
shall be deemed to be listed on Exhibit 1.6. If UPI declines or otherwise
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does not, within 30 days after such notice from SSC, expressly agree to
assume such Contract, then such Contract shall be deemed to be excluded
from the definition of "Assigned Contracts".
2.3.3 Other than the Assumed Liabilities, UPI shall not assume
any debts, liabilities or obligations of SSC or any person or entity which
directly or indirectly controls, is directly or indirectly controlled by or
is directly or indirectly under common control with, SSC, and all such
debts, liabilities and obligations shall be and remain the responsibility
of SSC or such other person or entity, as the case may be.
2.4.4 Any revenue and expense items relating to the Assets or
the Assigned Contracts shall be prorated on a per diem basis effective as
of the Effective Time.
2.4 Allocation of Purchase Price. The Purchase Price shall be
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allocated among the Assets in the manner specified on Exhibit 2.4. As soon as
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may be practicable after the Closing and prior to filing any tax return which
includes information related to the transactions contemplated in this Agreement,
SSC shall prepare IRS Form 8594 in the manner specified on Exhibit 2.4. UPI and
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SSC agree that, except as otherwise required by law, such allocation shall be
binding on UPI and SSC for all federal, state and local tax purposes, and UPI
and SSC shall file with their respective federal income tax returns consistent
Internal Revenue Service Forms 8594-Asset Acquisition Statements Under Section
1060, including any required amendments thereto, which shall reflect the
allocations set forth in such allocation.
3. Closing. The closing of the purchase and sale of the Assets (the
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"Closing") shall take place at the office of Vorys, Xxxxx, Xxxxxxx and Xxxxx
LLP, 00 Xxxx Xxx Xxxxxx, Xxxxxxxx, Xxxx 00000, at 10:00 a.m., local time, on
March 2, 2001 (the "Closing Date"). The Closing shall be effective as of 12:01
a.m., local time, on March 3, 2001 (the "Effective Time").
4. Documents to be Delivered at Closing.
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4.1 Documents to be Delivered by SSC to UPI. At the Closing, SSC will
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deliver to UPI the items identified as follows, duly executed, delivered,
acknowledged and notarized, as applicable, by all signatories thereto other than
UPI (the "SSC Related Documents"):
4.1.1 a general instrument of sale, conveyance, assignment,
transfer and delivery as shall be effective to vest in UPI good and
sufficient title to the Records, Intellectual Property, the Inventory Items
and the Tangible Personal Property, in the form of Exhibit 4.1.1;
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4.1.2 [RESERVED];
4.1.3 an Assignment of Interest and Amendment to Operating
Agreement in respect of the LLC Membership Interest, in the form of Exhibit
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4.1.3;
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4.1.4 an Assignment and Assumption Agreement in respect of the
Assumed Liabilities, in the form of Exhibit 4.1.4 (the "Assignment and
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Assumption Agreement");
4.1.5 such specific instruments of sale, conveyance, assignment,
transfer and delivery as to such of the Assets included within such
instrument of sale, conveyance, assignment, transfer and delivery as UPI
shall reasonably request;
4.1.6 a Marketing Agreement in the form of Exhibit 4.1.6 (the
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"Marketing Agreement");
4.1.7 a Lease Agreement in respect of each of the Leased
Livestock Marketing Facilities, in the form of Exhibit 4.1.7A (the
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"Leases"), and a Memorandum of Lease Agreement in respect of each of the
Leased Livestock Marketing Facilities, in the form of Exhibit 4.1.7B (the
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"Memorandum of Lease Documents"), but completed to include the appropriate
specific terms as specified on Exhibit 1.5A;
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4.1.8 a Memorandum of Right of First Refusal Agreement in
respect of each parcel of real property identified on Exhibit 4.1.8A (each
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a "Specified Non-Leased Property" and collectively the "Specified Non-
Leased Properties"), in the form of Exhibit 4.1.8B (the "Memorandum of
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Right of First Refusal Agreement Documents"), but completed to make
reference to the particular Specified Non-Leased Properties;
4.1.9 a certificate of the Secretary of SSC in the form of
Exhibit 4.1.9 certifying as to certain information in respect of SSC; and
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4.1.10 such other certificates and documents as UPI or its
counsel may reasonably request.
4.2 Documents to be Delivered by UPI to SSC. At the Closing, UPI will
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deliver to SSC the items identified as follows, duly executed, delivered,
acknowledged and notarized, as applicable, by UPI (the "UPI Related Documents"):
4.2.1 the Marketing Agreement, the Leases, the Memorandum of
Lease Documents, the Memorandum of Right of First Refusal Agreement
Documents, the Assignment of Membership Interest and the Assignment and
Assumption Agreement;
4.2.2 a certificate of the Secretary of UPI in the form of
Exhibit 4.2.2 certifying as to certain information in respect of UPI; and
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4.2.3 such other certificates and documents as SSC or its
counsel may reasonably request.
4.3 Passage of Title at Closing. At the Effective Time, title to the
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Assets shall pass to UPI and SSC will put UPI in full, complete and quiet
possession and enjoyment of all of the Assets.
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5. Representations and Warranties by SSC. SSC represents and warrants to
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UPI as follows:
5.1 Corporate Organization. SSC is a corporation duly organized,
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validly existing and in good standing under the laws of the State of Virginia,
and has the corporate power and authority to carry on its business as now being
conducted and to own and operate the properties and assets now owned and being
operated by it.
5.2 Corporate Authority.
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5.2.1 SSC has the corporate power to enter into this Agreement
and the SSC Related Documents and to carry out its obligations hereunder
and thereunder.
5.2.2 The execution, delivery and performance of this Agreement
and the SSC Related Documents and the consummation of the transactions
contemplated hereby and thereby have been duly authorized by the Board of
Directors of SSC and no other director, delegate, shareholder, member or
other corporate proceeding on the part of SSC is necessary to authorize the
execution and delivery of this Agreement or the SSC Related Documents or
the performance of any of the transactions contemplated hereby or thereby.
5.2.3 This Agreement has been, and at the Closing each of the
SSC Related Documents will be, duly executed and delivered on behalf of
SSC, and this Agreement is, and at the Closing each of the SSC Related
Documents will be, a legal, valid and binding obligation of SSC,
enforceable against SSC in accordance with its terms.
5.3 No Violation. Except as set forth on Schedule 5.3, neither the
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execution, delivery or performance of this Agreement or the SSC Related
Documents nor the consummation of the transactions contemplated hereby or
thereby:
5.3.1 will violate or conflict with the Articles of
Incorporation or By-Laws of SSC;
5.3.2 will result in any breach of or default under any
provision of any contract or agreement of any kind to which SSC is a party
or by which SSC is bound or to which any property or asset of SSC is
subject, which breach or default would adversely affect the Assets or SSC's
ability to perform its obligations under this Agreement or the SSC Related
Documents;
5.3.3 is prohibited by or requires SSC to obtain or make any
consent, authorization, approval, registration or filing under any statute,
law, ordinance, regulation, rule, judgment, decree or order of any court or
governmental agency, board, bureau, body, department or authority, or of
any other person;
5.3.4 will cause any acceleration of maturity of any note,
instrument or other obligation to which SSC is a party or by which SSC is
bound or with respect to which SSC is an obligor or guarantor; or
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5.3.5 will result in the creation or imposition of any lien,
claim, charge, restriction, equity or encumbrance of any kind whatsoever
upon, or give to any other person any interest or right (including any
right of termination or cancellation) in or with respect to the Assets.
5.4 Title to Assets. SSC has good and marketable title to all of the
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Assets, subject to no mortgage, pledge, conditional sales contract, lien,
security interest, right of possession in favor of any third party, claim or
other encumbrance, except as set forth on Schedule 5.4. At the Effective Time,
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UPI shall own all of the Assets, free and clear of any such encumbrance, except
as set forth on Schedule 5.4.
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5.5 LLC Membership Interest. SSC owns of record and is the sole legal
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and beneficial owner of the LLC Membership Interest. Except as set forth in the
Operating Agreement of the LLC, dated April 22, 1999 (the "LLC Operating
Agreement"), (i) no legend or other reference to any purported pledge, lien,
security interest, restriction on transfer or other encumbrance appears on any
certificate representing the LLC Membership Interest or any governing document
affecting the LLC Membership Interest, and (ii) there are no contractual
restrictions on the transfer of the LLC Membership Interest. SSC has performed
all of its obligations under the governing documents affecting the LLC
Membership Interest required to be performed through the Effective Time, and UPI
will have no obligations in respect thereof.
5.6 Contracts. Except as set forth on Schedule 5.6, SSC is not a
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party to any written or oral contract respecting or affecting the Assets. Each
contract or other agreement listed on Schedule 5.6 is in full force and effect.
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SSC is not in default in the observance or the performance of any term or
obligation to be performed by it under any contract listed on Schedule 5.6, and,
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to the best of SSC's knowledge, no other person is in default in the observance
or the performance of any term or obligation to be performed by it under any
contract listed on Schedule 5.6. SSC has delivered to UPI all originals of all
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written contracts listed on Schedule 5.6 as in effect on the date hereof which
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are in the possession of SSC. All of the bull leases referred to on Exhibit 1.6
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are on terms and conditions substantially similar to those included in the form
of bull lease attached hereto as Schedule 5.6A.
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5.7 Litigation. Except as set forth on Schedule 5.7, there are no
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actions, suits, proceedings or investigations, either at law or in equity, or
before any commission or other administrative authority in any United States or
foreign jurisdiction, of any kind now pending or, to SSC's knowledge, threatened
or proposed in any manner, or any circumstances which should or could reasonably
form the basis of any such action, suit, proceeding or investigation, respecting
or affecting the Assets.
5.8 Compliance with Laws. The Assets and the Leased Livestock
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Marketing Facilities, as used by SSC since April 1, 1998, and such use by SSC,
are not and have not, since April 1, 1998, been in violation of any applicable
federal, state, local and foreign statutes, laws, ordinances, regulations,
rules, permits, judgments, orders or decrees, including without limitation those
relating to building or zoning matters. This Section 5.8 shall not apply to
environmental matters.
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5.9 No Adverse Change. Since January 1, 2001, there has not been,
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other than in the ordinary course of SSC's business consistent with past
practice: (i) any material adverse change in the condition of any of the Assets
or the Leased Livestock Marketing Facilities; (ii) any actual or, to SSC's
knowledge, threatened damage, destruction or loss, whether or not covered by
insurance, materially and adversely affecting any of the Assets or the Leased
Livestock Marketing Facilities; or (iii) any other actual or, to SSC's
knowledge, threatened event or condition of any character materially and
adversely affecting any of the Assets or the Leased Livestock Marketing
Facilities.
5.10 Brokers. All negotiations relative to this Agreement, the SSC
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Related Documents and the transactions contemplated hereby have been carried on
by SSC directly with UPI and without the intervention of any other person and in
such manner as not to give rise to any valid claim against any of the parties
for any finder's fee, brokerage commission or like payment.
6. Representations and Warranties by UPI. UPI represents and warrants to
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SSC as follows:
6.1 Corporate Organization. UPI is a corporation duly organized,
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validly existing and in good standing under the laws of the State of Ohio, and
has the corporate power and authority to carry on its business as now being
conducted and to own and operate the properties and assets now owned and being
operated by it.
6.2 Corporate Authority.
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6.2.1 UPI has the corporate power to enter into this Agreement
and the UPI Related Documents and to carry out its obligations hereunder
and thereunder.
6.2.2 The execution, delivery and performance of this Agreement
and the UPI Related Documents and the consummation of the transactions
contemplated hereby and thereby have been duly authorized by the Board of
Directors of UPI and no other director, delegate, shareholder, member or
other corporate proceeding on the part of UPI is necessary to authorize the
execution and delivery of this Agreement or the UPI Related Documents or
the performance of any of the transactions contemplated hereby or thereby.
6.2.3 This Agreement has been, and at the Closing each of the
UPI Related Documents will be, duly executed and delivered on behalf of
UPI, and this Agreement is, and at the Closing each of the UPI Related
Documents will be, a legal, valid and binding obligation of UPI,
enforceable against UPI in accordance with its terms.
6.3 No Violation. Except as set forth on Schedule 6.3, neither the
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execution, delivery or performance of this Agreement or the UPI Related
Documents nor the consummation of the transactions contemplated hereby or
thereby:
6.3.1 will violate or conflict with the Articles of
Incorporation or Bylaws of UPI;
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6.3.2 will result in any breach of or default under any
provision of any contract or agreement of any kind to which UPI is a party
or by which UPI is bound or to which any property or asset of UPI is
subject;
6.3.3 is prohibited by or requires UPI to obtain or make any
consent, authorization, approval, registration or filing under any statute,
law, ordinance, regulation, rule, judgment, decree or order of any court or
governmental agency, board, bureau, body, department or authority, or of
any other person;
6.3.4 will cause any acceleration of maturity of any note,
instrument or other obligation to which UPI is a party or by which UPI is
bound or with respect to which UPI is an obligor or guarantor; or
6.3.5 will result in the creation or imposition of any lien,
claim, charge, restriction, equity or encumbrance of any kind whatsoever
upon, or give to any other person any interest or right (including any
right of termination or cancellation) in or with respect to any of the
properties, assets, business, agreements or contracts of UPI.
6.4 Brokers. All negotiations relative to this Agreement, the UPI
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Related Documents and the transactions contemplated hereby have been carried on
by UPI directly with SSC and without the intervention of any other person and in
such manner as not to give rise to any valid claim against any of the parties
for any finder's fee, brokerage commission or like payment.
7. Covenants of SSC. SSC covenants and agrees with UPI as follows:
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7.1 Right of First Refusal. The parties acknowledge and agree as
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follows:
7.1.1 If, during the period beginning at the Effective Time and
ending on February 28, 2007, SSC receives a bona fide offer (an "Offer") to
purchase or acquire all or any portion of any Specified Non-Leased
Property, and SSC desires to sell or transfer such Specified Non-Leased
Property, SSC may sell or transfer such Specified Non-Leased Property only
after first offering such Specified Non-Leased Property to UPI as provided
below. SSC shall deliver to UPI a notice of such Offer which includes a
copy of the Offer, specifying the name and address of the potential
purchaser or transferee (the "Offeror"), the Specified Non-Leased Property
with respect to which the Offer is made (the "Offered Property"), the
proposed price for the Offered Property (the "Offering Price"), the terms
of the proposed sale or transfer (the "Offering Terms"), and the date the
Offer was made (the "Offer Date").
7.1.2 Within 10 days following the notice specified in Section
7.1.1 above, UPI shall have the right to elect to purchase all (but not
less than all) of the Offered Property at the Offering Price. The terms of
the purchase shall be the Offering Terms, provided that UPI shall have a
period of not less than 60 days from the date of the notice specified in
Section 7.1.1 above in which to close on the purchase. Notice of UPI's
acceptance must be mailed or delivered to SSC within such 10-day period.
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7.1.3 To the extent that UPI fails to validly exercise its
option with respect to the Offered Property, SSC may sell or transfer the
Offered Property to the Offeror at the Offering Price and on the Offering
Terms. If SSC fails to sell or transfer such Offered Property before the
180th day following the Offer Date, the Offered Property shall again become
subject to the terms and conditions of this Section 7.1 as if such Offer
had not been made.
7.1.4 If UPI elects to record one or more Memoranda of Right of
First Refusal Agreement, it shall pay any and all costs associated with
such recordation.
7.2 Employees. UPI is not obligated to employ any past, present or
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future employee of SSC. However, UPI in its sole discretion is permitted to
recruit and employ personnel of SSC who are involved in the ownership or
operation of the Assets and the Leased Livestock Marketing Facilities, on terms
as may be mutually agreeable to UPI and any such individuals.
7.3 Post-Closing Accounting and Information Systems Support.
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Following the Closing, SSC shall provide or cause to be provided to or for the
benefit of UPI certain transitional accounting and information systems support
services, on a cost-recovery basis and in accordance with such terms and
conditions as SSC and UPI may agree.
7.4 Certain Post-Closing Transactions. SSC shall use its reasonable
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good faith efforts following the Closing to negotiate and enter into, or to
cause to be negotiated and entered into, as promptly as practicable following
the Closing, the transactions summarized as follows (the "Specified Post-Closing
Transactions"):
7.4.1 Loan Purchase Transaction. Producers Credit Corporation
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("PCC"), which is an affiliate of UPI, and Michigan Livestock Credit
Corporation ("MLCC"), which is an affiliate of SSC, would enter into a loan
purchase transaction whereby PCC would purchase from MLCC selected loan
assets and feeding agreements in accordance with the term sheet attached as
Exhibit 7.4.1, which is incorporated herein by reference, and on such
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further terms and pursuant to such documentation as shall be reasonably
acceptable to PCC and MLCC, and all subject to PCC having obtained
financing sufficient to consummate such transaction.
7.4.2. Investment by SFC in PCC. MLCC would enter into a
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transaction whereby MLCC would purchase from PCC shares of PCC's non-
voting, 6% cumulative Class A Preferred Stock in an amount equal to one-
fifth of the total purchase price for the loan purchase transaction
referred to in Section 7.4.1, on such terms and pursuant to such
documentation as shall be reasonably acceptable to PCC and MLCC, and all
subject to MLCC having obtained financing sufficient to consummate such
transaction.
7.4.3. Loan Transaction. SSC would enter into a transaction
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whereby SSC would loan to UPI an amount equal to $2,000,000, in accordance
with the term sheet attached as Exhibit 7.4.3, which is incorporated herein
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by reference, and on such further terms and pursuant to such documentation
as shall be reasonably acceptable to SSC and UPI.
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7.4.4. Conveyance of Capital Stock in Exchange for UPI Equity
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Credits. SSC shall convey, assign or transfer, or cause to be conveyed,
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assigned or transferred, to UPI the capital stock identified on Exhibit
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7.4.4 (the "Capital Stock"). At such time or times as, and to the extent
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that, the Capital Stock is effectively conveyed, assigned or transferred to
UPI, and actually reissued to and in the name of UPI, UPI will issue to SSC
non-voting, non-redeemable, uncertified capital credits in UPI (the "UPI
Equity Credits") in the aggregate amount of the book value of such Capital
Stock conveyed, assigned or transferred as stated on SSC's normally-
prepared books as of the date of such conveyance. At such time or times as
UPI issues UPI Equity Credits to SSC pursuant to this Section 7.4.4, and as
a condition precedent to such issuance, SSC will provide UPI with an
officer's certificate, dated the date of such issuance, certifying that SSC
acknowledges, understands and agrees with, and certifies, represents and
warrants to UPI as follows:
7.4.4.1 SSC has been given access to all books of
account, records and other documents concerning UPI and the UPI Equity
Credits. In addition, SSC has had the opportunity to ask questions and
receive answers from the officers and directors of UPI concerning UPI,
the UPI Equity Credits, and any additional information deemed
necessary by SSC to verify the accuracy and adequacy of the
information provided to SSC by UPI. All questions have been answered
to the full satisfaction of SSC.
7.4.4.2 SSC understands and acknowledges that the UPI
Equity Credits are speculative securities and involve a high degree of
risk and that no federal or state agency has made any finding or
determination as to the fairness for public or private investment in,
nor any recommendation or endorsement of, the UPI Equity Credits as an
investment. SSC (either alone or with SSC's purchaser representative)
has such knowledge and experience in business and financial matters
that SSC is capable of evaluating the merits and risks of an
investment in the UPI Equity Credits. SSC's financial situation is
such that SSC can afford a complete loss of SSC's investment in UPI.
7.4.4.3 SSC is acquiring the UPI Equity Credits for
SSC's own account, for investment purposes only and not with a present
intention of entering into or making any subsequent sale, assignment,
conveyance, pledge, hypothecation or other transfer thereof. SSC has
no need for liquidity in this investment, recognizes that there will
be no market for the resale of the UPI Equity Credits, and understands
that there are restrictions on the subsequent resale or other transfer
of the UPI Equity Credits. SSC understands and acknowledges that the
UPI Equity Credits have not been registered under the Securities Act
of 1933, as amended (the "Act"), or under the securities laws of any
state, but have been offered and sold pursuant to and in reliance upon
exemptions from registration thereunder. SSC understands and
acknowledges that, as a consequence of the restrictions on subsequent
transfer imposed by the foregoing exemptions, the UPI Equity Credits
may not be subsequently sold, assigned, conveyed, pledged,
hypothecated or otherwise transferred by a holder thereof
10
except pursuant to (i) an effective registration statement registering
the UPI Equity Credits under the Act and/or under applicable state
securities laws, or (ii) an opinion of counsel obtained by such holder
and which is satisfactory to UPI, that such registration under the Act
and/or under applicable state securities laws is not required for such
holder to lawfully effect such subsequent sale, assignment,
conveyance, pledge, hypothecation or other transfer. UPI reserves and
shall have the right to refuse to accept or register the assignment or
other transfer of any of the UPI Equity Credits unless and until the
conditions to such assignment or other transfer specified in this
Agreement have been satisfied.
7.4.4.4 Upon the reissuance of any such Capital Stock in
the name of UPI, UPI shall own of record and be the sole legal and
beneficial owner of such Capital Stock, free and clear of any pledge,
conditional sales contract, lien or security interest.
8. Covenants of UPI. UPI covenants and agrees with SSC as follows:
----------------
8.1 Certain Post-Closing Transactions. UPI shall use its reasonable
---------------------------------
good faith efforts following the Closing to negotiate and enter into, or to
cause to be negotiated and entered into, as promptly as practicable following
the Closing, the Specified Post-Closing Transactions.
8.2 Retention of Records. On the Closing Date, SSC will leave the
--------------------
Records at the Leased Livestock Marketing Facilities. SSC shall be entitled to
maintain copies of any Records which SSC has delivered to UPI pursuant to this
Agreement. Except as otherwise consented to by SSC, following the Closing for a
period of six years from the Effective Time UPI agrees to both: (i) hold the
originals of any Records which SSC has delivered to UPI pursuant to this
Agreement and not to destroy or dispose of such Records; provided that, if it
desires to destroy or dispose of such Records during such period, it will first
offer to SSC in writing at least 60 days prior to such destruction or
disposition to surrender them to SSC at SSC's expense, and if SSC does not
accept such offer within 20 days after receipt of such offer, UPI may take such
action; and (ii) afford SSC and its accountants, counsel and representatives,
during normal business hours, upon reasonable request to the Chief Executive
Officer or to any other executive officer of UPI at least 48 hours in advance,
full access to such Records at no cost to SSC (other than for reasonable out-of-
pocket expenses incurred by UPI); provided however, that such access will not
operate to cause the waiver of any attorney-client, work product or like
privilege; provided, further, that in the event of any litigation nothing herein
shall limit either party's rights of discovery under applicable law.
9. Conditions Precedent to SSC's Obligation to Sell the Assets and to
------------------------------------------------------------------
Consummate the Transactions. The obligation of SSC to sell the Assets to UPI
---------------------------
and to consummate the transactions contemplated by this Agreement is subject to
the fulfillment prior to or at the Closing of the following conditions:
9.1 UPI's Performance. There shall not be any material error,
-----------------
misstatement or omission in the representations and warranties made by UPI in
this Agreement or the UPI Related Documents; all representations and warranties
by UPI contained in this Agreement or the UPI Related Documents or in any
written statement delivered by UPI to SSC pursuant to this
11
Agreement or the UPI Related Documents shall be true in all material respects;
and UPI shall have performed and complied in all material respects with all the
terms, provisions and conditions of this Agreement and the UPI Related Documents
to be performed and complied with by UPI at or before the Closing.
9.2 Opinion of Counsel. SSC shall have received an opinion, dated
------------------
the Closing Date, of Vorys, Xxxxx, Xxxxxxx and Xxxxx LLP, counsel for UPI, in
the form attached hereto as Exhibit 9.2.
-----------
9.3 Consents and Approvals. SSC and UPI shall have obtained all
----------------------
consents, authorizations and approvals under all statutes, laws, ordinances,
regulations, rules, judgments, decrees and orders of any court or governmental
agency, board, bureau, body, department or authority or of any other person
required to be obtained by SSC or UPI, as the case may be, in connection with
the execution, delivery and performance of this Agreement, the UPI Related
Agreements and the SSC Related Agreements and the consummation of the
transactions contemplated hereby and thereby.
10. Conditions Precedent to UPI's Obligation to Purchase the Assets and to
----------------------------------------------------------------------
Consummate the Transactions. The obligation of UPI to purchase the Assets and
---------------------------
to consummate the transactions contemplated by this Agreement is subject to the
fulfillment prior to or at the Closing of the following conditions:
10.1 SSC's Performance. There shall not be any material error,
-----------------
misstatement or omission in the representations and warranties made by SSC in
this Agreement or the SSC Related Agreements; all representations and warranties
by SSC contained in this Agreement or the SSC Related Agreements or in any
written statement delivered by SSC to UPI pursuant to this Agreement or the SSC
Related Agreements shall be true; and SSC shall have performed and complied in
all material respects with all the terms, provisions and conditions of this
Agreement and the SSC Related Agreements to be performed and complied with by
SSC at or before the Closing.
10.2 Opinion of Counsel. UPI shall have received an opinion, dated
------------------
the Closing Date, of Xxxxxxxx Xxxxxxx Xxxx & Valentine LLP, counsel for SSC, in
the form attached hereto as Exhibit 10.2.
------------
10.3 Consents and Approvals. SSC and UPI shall have obtained all
----------------------
consents, authorizations and approvals under all statutes, laws, ordinances,
regulations, rules, judgments, decrees and orders of any court or governmental
agency, board, bureau, body, department or authority or of any other person
required to be obtained by SSC or UPI, as the case may be, in connection with
the execution, delivery and performance of this Agreement, the UPI Related
Agreements and the SSC Related Agreements and the consummation of the
transactions contemplated hereby and thereby.
11. Survival of Representations and Warranties; Indemnification.
-----------------------------------------------------------
11.1 Survival of Representations and Warranties. No party shall have
------------------------------------------
any liability (for indemnification or otherwise) with respect to any
representation or warranty in this Agreement, other than those in Sections 5.1,
5.2, 5.4, 6.1 and 6.2, unless at or before 5:00 p.m.,
12
Richmond, Virginia time, on August 31, 2002, such party is given notice of a
claim specifying the factual basis of that claim in reasonable detail to the
extent then known by the party making the claim. A claim with respect to
Sections 5.1, 5.2, 5.4, 6.1 or 6.2 may be made at any time.
11.2 SSC's Indemnification Obligations. Subject to Section 11.1, SSC
---------------------------------
shall indemnify and hold UPI harmless against any and all losses, costs and
expenses (including, without limitation, legal and other expenses) ("Damages")
resulting from or relating to:
11.2.1 any misrepresentation or breach of any warranty of SSC
contained in this Agreement, in the SSC Related Documents or in any
schedule of SSC or any certificate delivered by SSC at the Closing;
11.2.2 any breach of any covenant of SSC contained in this
Agreement or the SSC Related Documents; and
11.2.3 any debt, liability or obligation of SSC, other than the
Assumed Liabilities;
and any and all actions, suits, demands, assessments or judgments with respect
to any claim arising out of or relating to the subject matter of the
indemnification.
11.3 UPI's Indemnification Obligations. Subject to Section 11.1, UPI
---------------------------------
shall indemnify and hold SSC harmless against any and all Damages resulting from
or relating to:
11.3.1 any misrepresentation or breach of warranty of UPI
contained in this Agreement, in the UPI Related Documents or in any
schedule of UPI or in any certificate delivered by UPI at the Closing;
11.3.2 any breach of any covenant of UPI contained in this
Agreement or in the UPI Related Documents; and
11.3.3 the Assumed Liabilities;
and any and all actions, suits, demands, assessments or judgments with respect
to any claim arising out of or relating to the subject matter of the
indemnification.
11.4 Procedure for Indemnification Claims. The respective
------------------------------------
indemnification obligations of SSC and UPI pursuant to Sections 11.2 and 11.3
shall be conditioned upon compliance by SSC and UPI with the following
procedures for indemnification claims based upon or arising out of any claim,
action or proceeding by any person not a party to this Agreement:
11.4.1 If at any time a claim shall be made or threatened, or an
action or proceeding shall be commenced or threatened, against a party
hereto (the "Aggrieved Party") which could result in liability of the other
party (the "Indemnifying Party") under its indemnification obligations
hereunder, the Aggrieved Party shall give to the Indemnifying Party prompt
notice of such claim, action or proceeding. Such notice shall state the
basis for the claim, action or proceeding and the amount thereof (to the
extent
13
such amount is determinable at the time when such notice is given) and
shall permit the Indemnifying Party to assume the defense of any such
claim, action or proceeding (including any action or proceeding resulting
from any such claim). Failure by the Indemnifying Party to notify the
Aggrieved Party of its election to defend any such claim, action or
proceeding within a reasonable time, but in no event more than fifteen days
after notice thereof shall have been given to the Indemnifying Party, shall
be deemed a waiver by the Indemnifying Party of its right to defend such
claim, action or proceeding; provided, however, that the Indemnifying Party
shall not be deemed to have waived its right to contest and defend against
any claim of the Aggrieved Party for indemnification hereunder based upon
or arising out of such claim, action or proceeding.
11.4.2 If the Indemnifying Party assumes the defense of any such
claim, action or proceeding, the obligation of the Indemnifying Party as to
such claim, action or proceeding shall be limited to taking all steps
necessary in the defense or settlement thereof and, provided the
Indemnifying Party is held to be liable for indemnification hereunder, to
holding the Aggrieved Party harmless from and against any and all losses,
damages and liabilities caused by or arising out of any settlement approved
by the Indemnifying Party or any judgment or award rendered in connection
with such claim, action or proceeding. The Aggrieved Party may
participate, at its expense, in the defense of such claim, action or
proceeding provided that the Indemnifying Party shall direct and control
the defense of such claim, action or proceeding. The Aggrieved Party
agrees to cooperate and make available to the Indemnified Party all books
and records and such officers, employees and agents as are reasonably
necessary and useful in connection with the defense. The Indemnifying
Party shall not, in the defense of such claim, action or proceeding,
consent to the entry of any judgment or award, or enter into any
settlement, except in either event with the prior consent of the Aggrieved
Party, which does not include as an unconditional term thereof the giving
by the claimant or the plaintiff to the Aggrieved Party of a release from
all liability in respect of such claim, action or proceeding.
11.4.3 If the Indemnifying Party does not assume the defense of
any such claim, action or proceeding, the Aggrieved Party may defend
against such claim, action or proceeding in such manner as it may deem
appropriate, provided that such claim shall not be compromised without the
written consent of the Indemnifying Party, which consent shall not be
unreasonably withheld. The Indemnifying Party agrees to cooperate and make
available to the Aggrieved Party all books and records and such officers,
employees and agents as are reasonably necessary and useful in connection
with the defense. The Aggrieved Party shall keep the Indemnifying Party
reasonably informed of the progress of any such defense, compromise or
settlement. The Indemnifying Party shall be liable for any settlement of
any third party claim effected pursuant to and in accordance with this
Section 11.4.3 and for any final judgment (subject to any right of appeal)
and the Indemnifying Party agrees to indemnify and hold harmless the
Aggrieved Party from and against any and all Damages by reason of such
settlement or judgment.
11.4.4 In the event an Aggrieved Party or Indemnifying Party
shall cooperate in the defense or make available books, records, officers,
employees or agents, as required by the terms of Sections 11.4.2 and
11.4.3, the party to which such
14
cooperation is provided shall pay the out-of-pocket costs and expenses
(including legal fees and disbursements) of the party providing such
cooperation and of its officers, employees and agents reasonably incurred
in connection with providing such cooperation, but shall not be responsible
to reimburse the party providing such cooperation for such party's time or
the salaries or costs of fringe benefits or other similar expenses paid by
the party providing such cooperation to its officers and employees in
connection therewith.
11.4.5 To the extent that any claim for indemnification
hereunder is covered by insurance held by the Aggrieved Party, such
Aggrieved Party shall be entitled to indemnification pursuant to this
Section 11 only with respect to the amount of Damages that are in excess of
the cash proceeds received by such Aggrieved Party pursuant to such
insurance. If such Aggrieved Party receives such cash insurance proceeds
prior to the time such claim is paid, then the amount payable by the
Indemnifying Party pursuant to such claim shall be reduced by the amount of
such insurance proceeds. If such Aggrieved Party receives such cash
insurance proceeds after such claim is paid, then upon receipt by the
Aggrieved Party of any cash proceeds pursuant to such insurance up to the
amount of the Damages incurred by such Aggrieved Party with respect to such
claim, such Aggrieved Party shall repay any portion of such amount which
was previously paid by the Indemnifying Party to the Indemnified Party in
satisfaction of such claim.
11.5 Limitations on Amount--SSC.
--------------------------
11.5.1 Subject to Section 11.5.3, SSC will have no liability
(for indemnification or otherwise) for Damages with respect to the matters
described in Section 11.2.1 in excess of the amount of the Purchase Price.
11.5.2 Subject to Section 11.5.3, SSC will have no liability
(for indemnification or otherwise) with respect to the matters described in
Section 11.2.1 until the total of all Damages with respect to all such
matters exceeds the amount of $25,000, and then only to the extent of such
excess.
11.5.3 Notwithstanding the provisions of Sections 11.5.1 and
11.5.2, the limitations set forth in this Section 11.5 will not apply to
any breach of the representations or warranties in Sections 5.1, 5.2, 5.4
or 7.4.4.4.
11.6 Limitations on Amount--UPI
--------------------------
11.6.1 Subject to Section 11.6.3, UPI will have no liability
(for indemnification or otherwise) for Damages with respect to the matters
described in Section 11.3.1 in excess of the amount of the Purchase Price.
11.6.2 Subject to Section 11.6.3, UPI will have no liability
for indemnification or otherwise) with respect to the matters described in
Section 11.3.1 until the total of all Damages with respect to all such
matters exceeds the amount of $25,000, and then only to the extent of such
excess.
15
11.6.3 Notwithstanding the provisions of Sections 11.6.1 and
11.6.2, the limitations set forth in this Section 11.6 will not apply to
any breach of the representations or warranties in Sections 6.1 or 6.2.
12. General Provisions.
------------------
12.1 Public Announcements. Any public announcement or similar
--------------------
publicity with respect to this Agreement, the SSC Related Documents, the UPI
Related Documents or the transactions contemplated hereunder or thereunder will
be issued, if at all, at such time and in such manner as SSC and UPI may jointly
determine. Unless consented to by the other party in advance or required by
applicable law, prior to the Closing UPI and SSC shall keep this Agreement, the
SSC Related Documents, the UPI Related Documents or the transactions
contemplated hereunder or thereunder strictly confidential and may not make any
disclosure of such matters to any person or entity. SSC and UPI will consult
with each other concerning the means by which the affected members, employees,
customers, and suppliers of SSC will be informed thereof, and UPI will have the
right to be present for any such communication.
12.2 Assurance of Further Action. From time to time after the
---------------------------
Closing, and without further consideration from the other party, and at the
requesting party's expense, each party shall execute and deliver, or cause to be
executed and delivered, to the other party such further instruments of sale,
conveyance, assignment, transfer and delivery and take such other action as the
other party may reasonably request in order to more effectively sell, convey,
assign, transfer and deliver and reduce to the possession of UPI any and all of
the Assets and to consummate the transactions contemplated under this Agreement,
under the SSC Related Documents or under the UPI Related Documents.
All payments and reimbursements made by any third party in the name of
or to SSC or any affiliate of SSC in connection with or arising out of the
Assets or the Leased Livestock Marketing Facilities after the Closing shall be
held by SSC or such affiliate in trust for the benefit of UPI and, immediately
upon receipt by SSC or any such affiliate of any such payment or reimbursement,
SSC shall pay, or cause to be paid, over to UPI the amount of such payment or
reimbursement without right of set off.
12.3 Expenses. Unless otherwise provided elsewhere in this Agreement
--------
or in any other agreement entered into in connection with the transactions
contemplated by this Agreement, each of the parties will pay all of its own
legal and accounting fees and other expenses incurred in the preparation and
negotiation of this Agreement and the performance of the terms and provisions of
this Agreement, the SSC Related Documents and the UPI Related Documents.
12.4 Notices. All notices, consents, waivers, and other communications
-------
under this Agreement must be in writing and will be deemed to have been duly
given when (i) delivered by hand (with written confirmation of receipt), (ii)
sent by telecopier (with written confirmation of receipt), provided that a copy
is mailed by registered mail, return receipt requested, or (iii) when received
by the addressee, if sent by a nationally recognized overnight delivery service
(receipt requested), in each case to the appropriate addresses and telecopier
16
numbers set forth below (or to such other addresses and telecopier numbers as a
party may designate by notice to the other parties):
If to UPI, to:
United Producers, Inc.
0000 Xxxxxxxxx Xxxxxx
X.X. Xxx 00000
Xxxxxxxx, Xxxx 00000
Attention: Xxxxxx Xxxxxxx, President and Chief Executive Officer
Telecopier Number: (000) 000-0000
With a copy to:
Xxxxxxx X. Xxxxxx, Esq.
Vorys, Xxxxx, Xxxxxxx and Xxxxx LLP
00 Xxxx Xxx Xxxxxx
Xxxxxxxx, Xxxx 00000
Telecopier Number: (000) 000-0000
If to SSC, to:
Southern States Cooperative, Inc.
0000 Xxxx Xxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: X. Xxxxxx Xxxxxxxx, Jr., Esq.
Telecopier Number: (000) 000-0000
With a copy to:
Xxxxxxxxx X. Xxxxxx, Esq.
Xxxxxxxx Xxxxxxx Xxxx & Valentine LLP
0000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000-0000
Telecopier Number: (000) 000-0000
12.5 Rights Under this Agreement: Nonassignability. This Agreement,
---------------------------------------------
the SSC Related Documents and the UPI Related Documents shall bind and inure to
the benefit of the parties hereto and thereto and their respective successors
and assigns, but shall not be assignable by any party without the prior written
consent of the other parties. Nothing contained in this Agreement, the SSC
Related Documents or the UPI Related Documents is intended to confer upon any
person, other than the parties to this Agreement and their respective successors
and assigns, any rights, remedies, obligations or liabilities under or by reason
of this Agreement, the SSC Related Documents or the UPI Related Documents.
12.6 Entire Agreement and Modification. This Agreement supersedes all
---------------------------------
prior agreements between the parties with respect to its subject matter and
constitutes (along with the
17
documents referred to in this Agreement) a complete and exclusive statement of
the terms of the agreement between the parties with respect to its subject
matter. This Agreement may not be amended except by a written agreement executed
by the party to be charged with the amendment. Notwithstanding the foregoing,
however, the confidentiality agreement executed by and between SSC and UPI prior
to the date hereof shall survive execution of this Agreement and remain in full
force and effect in accordance with their respective terms.
12.7 Schedules. The disclosures in the Schedules must relate only to
---------
the representations and warranties in the Section of the Agreement to which they
expressly relate and not to any other representation or warranty in this
Agreement.
12.8 Governing Law. This Agreement shall be governed by and construed
-------------
in accordance with the laws of the State of Virginia.
12.9 Knowledge. As used in this Agreement, the phrase "to the
---------
knowledge" of SSC shall refer only to the actual knowledge of K. Xxxx XxXxxxx,
X. Xxxxxx Xxxxxxxx, Jr., Xxx Xxxxxx, Xxxxx Xxxxxxx or Xxxxx Xxxxxx.
12.10 Headings: References to Sections, Exhibits and Schedules. The
--------------------------------------------------------
headings of the Sections, Paragraphs and Subparagraphs of this Agreement are
solely for convenience and reference and shall not limit or otherwise affect the
meaning of any of the terms or provisions of this Agreement. The references
herein to Sections, Exhibits and Schedules, unless otherwise indicated, are
references to Sections of and Exhibits and Schedules to this Agreement.
12.11 Counterparts. This Agreement may be executed in any number of
------------
counterparts, each of which shall be an original, but which together constitute
one and the same instrument.
18
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their duly authorized officers, effective as of the day and year set
forth above.
UNITED PRODUCERS, INC. SOUTHERN STATES COOPERATIVE, INC.
By: /s/ Xxxxxx Xxxxxxx By: /s/ K. Xxxx XxXxxxx
-------------------- ----------------------
Xxxxxx Xxxxxxx, President Printed Name: K. Xxxx XxXxxxx
and Chief Executive Officer Title: Group Vice President
19
LOCATION LIST OF DEFINED TERMS
IN
MASTER AGREEMENT
BETWEEN
UNITED PRODUCERS, INC.
AND
SOUTHERN STATES COOPERATIVE, INC.
Term Location of Definition
---- ----------------------
Act....................................................... Section 7.4.4
Agreed Cash Amount........................................ Section 2.1
Agreed Value of the Inventory Items....................... Section 2.2
Agreed Value of the Tangible Personal Property............ Section 2.2
Agreement................................................. Preamble
Aggrieved Party........................................... Section 11.4.1
Assets.................................................... Section 1
Assigned Contracts........................................ Section 1.6
Assignment and Assumption Agreement....................... Section 4.1.4
Assumed Liabilities....................................... Section 2.3
Capital Stock............................................. Section 7.4.4
Closing................................................... Section 3
Closing Date.............................................. Section 3
Contract.................................................. Section 1.6
Damages................................................... Section 11.2
Effective Time............................................ Section 3
Indemnifying Party........................................ Section 11.4.1
Intellectual Property..................................... Section 1.3
Inventory Items........................................... Section 1.4
Leased Livestock Marketing Facilities..................... Section 1.5
Leases.................................................... Section 4.1.7
LLC....................................................... Section 1.2
LLC Membership Interest................................... Section 1.2
LLC Operating Agreement................................... Section 5.5
Marketing Agreement....................................... Section 4.1.6
Memorandum of Lease Documents............................. Section 4.1.7
Memorandum of Right of First Refusal Agreement Documents.. Section 4.1.8
MLCC...................................................... Section 7.4.1
Offer..................................................... Section 7.1.1
Offer Date................................................ Section 7.1.1
Offered Property.......................................... Section 7.1.1
Offering Price............................................ Section 7.1.1
Offering Terms............................................ Section 7.1.1
Offeror................................................... Section 7.1.1
PCC....................................................... Section 7.4.1
20
Purchase Price............................................ Section 2.1
Records................................................... Section 1.1
Specified Non-Leased Properties........................... Section 4.1.8
Specified Post-Closing Transactions....................... Section 7.4
SSC....................................................... Preamble
SSC Related Documents..................................... Section 4.1
Tangible Personal Property................................ Section 1.5
to the knowledge.......................................... Section 12.9
UPI....................................................... Preamble
UPI Equity Credits........................................ Section 7.4.4
UPI Related Documents..................................... Section 4.2
21
LIST OF EXHIBITS AND SCHEDULES
TO
MASTER AGREEMENT
BETWEEN
UNITED PRODUCERS, INC.
AND
SOUTHERN STATES COOPERATIVE, INC.
Exhibits Description
-------- -----------
Exhibit 1.2 LLC Membership Interest
Exhibit 1.3 Intellectual Property
Exhibit 1.4 Inventory Items
Exhibit 1.5A Leased Livestock Marketing Facilities
Exhibit 1.5B Tangible Personal Property
Exhibit 1.6 Assigned Contracts
Exhibit 2.4 Allocation of Purchase Price
Exhibit 4.1.1 Form of General Instrument of Sale
Exhibit 4.1.3 Form of Assignment of Membership Interest in Limited
Liability Company
Exhibit 4.1.4 Form of Assignment and Assumption Agreement in Respect of
Assumed Liabilities
Exhibit 4.1.6 Form of Marketing Agreement
Exhibit 4.1.7A Form of Leases
Exhibit 4.1.7B Form of Memorandum of Lease Documents
Exhibit 4.1.8A Specified Non-Leased Properties
Exhibit 4.1.8B Form of Memorandum of Right of First Refusal Agreement
Documents
Exhibit 4.1.9 Form of SSC's Secretary's Certificate
Exhibit 4.2.2 Form of UPI's Secretary's Certificate
Exhibit 7.4.1 Term Sheet for Loan Purchase Transaction
Exhibit 7.4.3 Term Sheet for Loan Transaction
Exhibit 7.4.4.3 Capital Stock
Exhibit 9.2 Form of Opinion of Vorys, Xxxxx, Xxxxxxx and Xxxxx LLP
Exhibit 10.2 Form of Opinion of Xxxxxxxx Xxxxxxx Xxxx & Valentine LLP
Schedules Description
--------- -----------
Schedule 5.3 No Violation--SSC
Schedule 5.4 Title to Assets
Schedule 5.6 Contracts
Schedule 5.6A Form of Bull Lease
Schedule 5.7 Litigation
Schedule 6.3 No Violation--UPI
22
