Exhibit 10.2
SELLER TRANSITION SERVICES AGREEMENT
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THIS SELLER TRANSITION SERVICES AGREEMENT ("Agreement") is made and entered
into this 24/th/ day of November, 2003, by and between ConAgra Foods, Inc., a
Delaware corporation ("ConAgra"), UAP Holding Corp, a Delaware corporation ("UAP
Holding"), United Agri Products, Inc., a Delaware corporation ("UAP") and each
of the other companies listed on the signature pages hereto (the "UAP
Affiliates").
RECITALS:
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(a) Pursuant to the Stock Purchase Agreement (the "Definitive Agreement")
dated as of October 29, 2003, by and between ConAgra and UAP Holding,
ConAgra agreed to enter into, and UAP Holding agreed to cause UAP and
the UAP Affiliates to enter into, a transition services agreement with
ConAgra pursuant to which UAP and the UAP Affiliates shall provide to
those international subsidiaries of ConAgra as are listed on Schedule
"A" (each a "Company" and collectively the "Companies"), certain
transition services which have heretofore been provided to the
Companies by UAP and the UAP Affiliates.
(b) ConAgra has requested that for a limited period of time that UAP and
the UAP Affiliates continue to provide, or that UAP Holding cause UAP
and the UAP Affiliates to continue to provide, the services set forth
on Schedule "B" (the "Services") to the Companies in a manner
consistent with the manner in which the Services have heretofore been
provided by UAP and the UAP Affiliates to the Companies.
(c) UAP Holding, UAP and the UAP Affiliates are willing to enter into this
Agreement and to provide the Services upon the terms and conditions
hereinafter set forth.
AGREEMENT:
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NOW, THEREFORE, in consideration of the foregoing recitals which are
incorporated with and made a part of this Agreement, and in further
consideration of the mutual covenants and agreements herein contained, the
parties agree as follows:
1. Services.
1.1 Services. Upon the terms and subject to the conditions contained
herein, UAP Holding, UAP and the UAP Affiliates agree that UAP and the
UAP Affiliates will
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provide the Services to the Companies as ConAgra may request in a
manner consistent with the manner in which the Services have
heretofore been provided by UAP and the UAP Affiliates to the
Companies. ConAgra shall have the right to terminate one or more of
the Services, or any part of such Services where the cost can be
itemized, for all the Companies by giving at least thirty (30) days
prior written notice to UAP. Except for those third parties
historically retained by UAP or the UAP Affiliates with respect to the
Services, UAP and the UAP Affiliates agree not to retain additional
third parties except where they do not have internal resources that
can provide the applicable Service on a commercially-reasonable basis.
2. Term. The Services shall be provided by UAP and the UAP Affiliates for
a period of twelve (12) months following the date hereof unless earlier
terminated by ConAgra pursuant to Section 1.1 above or unless a longer period is
provided in Schedule "B"; provided, however, that ConAgra shall use all
commercially reasonable efforts to replace the Services. The parties may agree
to extend any such time period by mutual written agreement.
3. Consideration.
3.1 Charges. As consideration for the performance of the Services,
ConAgra shall pay UAP the amount set forth on Schedule "B".
3.2 Taxes. ConAgra shall pay all sales, use or similar taxes payable
with respect to the performance of the Services.
3.3 Invoices and Payment. UAP shall invoice ConAgra monthly for the
Services provided. Payment shall be made within thirty (30) days of
receipt of the invoice. If a payment amount is not received by UAP by
such date, then a late payment charge equal to one and one-half
percent (1.5%) per month shall be paid on all amounts due but not
received on or before the due date.
3.4 Termination. If ConAgra terminates the Services prior to the
expiration of the applicable term for the provisions of such services
as set forth on Schedule "B", ConAgra will be responsible for payment
only for the Services provided through the date of such termination.
4. Cooperation. ConAgra shall cause the Companies to cooperate fully with
UAP and the UAP Affiliates providing such Services, by promptly providing
reasonable assistance (including, without limitation, information, personnel and
equipment consistent with past practice) to perform the Services and by causing
the Companies to have staff and facilities required to accept the Services in a
manner consistent with past practices.
5. Limitations on Services Provided.
5.1. UAP and the UAP Affiliates shall provide the Services to the
Companies in a manner consistent with, and limited in scope to, past practice.
To the extent services are
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hereinafter identified that have historically been provided by UAP or the UAP
Affiliates to the Companies, to the extent requested by ConAgra or the
Companies, UAP and the UAP Affiliates should provide such services pursuant to
the terms of this Agreement, and in a manner and on terms consistent with past
practices. In such case the parties will negotiate in good faith the
compensation for such services with the compensation consistent with past
practices.
5.2 It is understood and agreed by ConAgra that UAP and the UAP
Affiliates assume no other liability or responsibility whatsoever other than to
perform the Services in good faith. It is further understood and agreed that, so
long as UAP and the UAP Affiliates perform the Services, in good faith, UAP
Holding, UAP and the UAP Affiliates shall not be liable to ConAgra or the
Companies with respect to such Services except by reason of acts of UAP or the
UAP Affiliates consisting of willful misconduct or gross negligence on the part
of UAP or the UAP Affiliates.
6. Confidential Information. Each party acknowledges that in connection
with this Agreement it may receive certain confidential information
("Confidential Information"). The receiving party shall not at any time disclose
the Confidential Information to any person, firm, partnership, corporation or
other entity (other than to such receiving party's affiliates, directors,
officers, employees or agents who have a need to access the Confidential
Information) for any reason whatsoever, nor shall the receiving party use the
Confidential Information for its benefit or for the benefit of any person, firm,
partnership or affiliates during the term of this Agreement and for a period of
two (2) years after the termination hereof unless required by law, rule or
regulation, by any governmental authority or in response to any valid legal
process (provided that the party so required to disclose will provide the other
party with prompt notice of any such requirement so that the other party may
seek an appropriate protective order). Each party shall take all actions
necessary to ensure that its employees and representatives having access to the
Confidential Information are bound by the terms of this Agreement. Confidential
Information shall not include information which (i) was in the receiving party's
possession prior to disclosure, (ii) is hereafter independently developed by the
receiving party, (iii) lawfully comes into the possession of the receiving
party, or (iv) is now or subsequently becomes, other than through a breach of
this Agreement by the receiving party, publicly available. ConAgra, UAP Holding,
UAP and the UAP Affiliates also acknowledge that data developed by it for
another party in connection with the performance of its obligations hereunder
shall be the property of such other party and that such other party shall retain
all right, title and interest to such data.
7. Indemnity.
7.1 During the course of, and upon and after termination of this
Agreement for any reason whatsoever, ConAgra hereby agrees to indemnify and hold
UAP Holding, UAP and the UAP Affiliates harmless from and against any loss,
liability, damage or expense whatsoever (including court costs and reasonable
attorneys' fees) incident to any claim, action or proceedings against UAP
Holding, UAP or the UAP Affiliates which arise out of or relate to the
performance of the Services, except acts of UAP Holding, UAP or the UAP
Affiliates constituting willful misconduct or gross negligence.
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7.2 During the course of, and upon and after termination of this
Agreement for any reason whatsoever, UAP Holding, UAP and the UAP Affiliates
each hereby agrees to indemnify and hold the ConAgra and the Companies harmless
from and against any loss, liability, damage or expense whatsoever (including
court costs and reasonable attorneys' fees) incident to any claim, action or
proceedings against any of the Companies or ConAgra which arise out of or relate
to the willful misconduct or gross negligence of UAP Holding, UAP or the UAP
Affiliates.
8. Miscellaneous.
8.1 Non-Assignability. Neither of the parties hereto shall assign its
rights or delegate its duties under this Agreement without the prior
written consent of the other parties hereto except that UAP Holding,
UAP or the UAP Affiliates may assign and/or charge all or any of their
rights under this Agreement by way of security to any bank(s) and/or
holders of debt securities and/or financial institution(s) and/or
hedge counterparties and/or any other person (together, the
"Financiers") lending money or making other banking facilities
available to the UAP Holding, UAP and the UAP Affiliates or to any
Financiers who provide funds on or in connection with any subsequent
refinancing of such funding or to any person from time to time
appointed by any Financier to act as security trustee on behalf of
such Financier; without limitation to the foregoing, any such person
or Financier may assign such rights on any enforcement of the security
under such finance arrangement; provided further, however, that no
such assignment shall relieve UAP Holding, UAP or the UAP Affiliates
of their obligations hereunder. Subject to the foregoing, this
Agreement shall be binding on, and inure to the benefit of, the
parties and their respective affiliates, successors and assigns.
8.2 Governing Law. This Agreement shall be governed by and construed and
interpreted in accordance with the laws of the State of Delaware,
irrespective of the choice-of-laws principles of the State of
Delaware.
8.3 Third Party Beneficiaries. Except as otherwise expressly provided in
this Agreement, the provisions of this Agreement are for the benefit
of the parties hereto and not for any other person. This Agreement
shall not provide any third person with any remedy, claim,
reimbursement, claim of action or other right in excess of those
existing without reference to this Agreement.
8.4 No Partnership. Nothing contained in this Agreement shall be deemed or
construed to create a partnership or a joint venture among the parties
hereto, to make any party an agent or legal representative of the
other or to cause UAP Holding, UAP or the UAP Affiliates to be
responsible for the debts or obligations of ConAgra or the Companies.
The Companies and ConAgra acknowledge that UAP and the UAP Affiliates
shall be independent contractors in the performance of the Services.
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8.5 Notices. All notices or other communications under this Agreement
shall be in writing and shall be deemed to be duly given when
delivered or mailed in accordance with the provisions of the
Definitive Agreement.
8.6 Severability and Invalidity. Any provision of this Agreement which is
invalid or unenforceable in any jurisdiction shall, as to that
jurisdiction, be ineffective to the extent of such invalidity or
unenforceability without rendering invalid or unenforceable the
remaining provisions of this Agreement or affecting the validity or
enforceability of any of the provisions of this Agreement in any other
jurisdiction. If any provision of this Agreement is so broad as to be
unenforceable, the provision shall be interpreted to be only so broad
as is enforceable.
8.7 Force Majeure. Except for ConAgra's obligations to pay monies under
this Agreement, each party shall be excused from its obligations under
this Agreement to the extent that, and no party hereto shall be liable
for any loss or damage whatsoever arising out of, any delay or failure
in the performance of such obligations results from any cause beyond
its reasonable control (and without the fault of such party),
including, without limitation, performance by third parties, power
failures, computer equipment or system failures, acts of God, acts of
civil or military authority, embargoes, epidemics, war, terrorism,
riots, insurrections, fires, explosions, earthquakes, floods, severe
weather conditions or labor problems.
8.8 Captions. The paragraph headings and captions contained in this
Agreement are for reference purposes only and shall not affect in any
way the meaning or interpretation of this Agreement.
8.9 Authority. Each party represents and warrants that the officer
executing this Agreement on its behalf is duly authorized to so
execute this Agreement, and this Agreement, when executed and
delivered by such party, shall constitute the valid and binding
agreement of such party, enforceable in accordance with its terms.
8.10 Amendments. No provisions of this Agreement shall be deemed waived,
amended, supplemented or modified by either party, unless such waiver,
amendment, supplement or modification is in writing and signed by the
authorized representative of the party against whom it is sought to
enforce such waiver, amendment, supplement or modification.
8.11 Entire Agreement. This Agreement and the Definitive Agreement set
forth the entire agreement of the parties with respect to the subject
matter hereof and supersede all prior agreements, writings,
communications, negotiations, discussions and understandings between
the parties pertaining to the subject matter hereof.
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8.12 Affiliates. ConAgra hereby acknowledges that UAP and the UAP
Affiliates provide services to themselves and their affiliates and
subsidiaries that are similar to the Services, and the Companies and
ConAgra hereby waives any conflict which may be created thereby.
8.13 Counterparts. This Agreement may be executed in counterparts, each of
which is to be deemed an original, and all of which constitute,
collectively, one agreement.
9. Consent to Jurisdiction. THE PARTIES HERETO HEREBY IRREVOCABLY SUBMIT
TO THE EXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL OR DELAWARE STATE
COURT SITTING IN WILMINGTON, DELAWARE IN ANY ACTION OR PROCEEDING ARISING OUT OF
OR RELATING TO THIS AGREEMENT AND EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY
AGREES THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING SHALL BE HEARD
AND DETERMINED IN ANY SUCH COURT AND IRREVOCABLY WAIVES ANY OBJECTION IT MAY NOW
OR HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT
IN SUCH A COURT OR THAT SUCH COURT IS AN INCONVENIENT FORUM.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date
first above written.
UAP HOLDING CORP., CONAGRA FOODS, INC.,
a Delaware corporation a Delaware corporation
By: /s/ Xxxxx Xxxxxxx By: /s/ Xxxxxxx X. Xxxxx
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Its: Authorized Signatory Its: Authorized Signatory
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UNITED AGRI PRODUCTS, INC.,
a Delaware corporation
By: /s/ Xxxxx Xxxxxxx
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Its: Authorized Signatory
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AG-CHEM, INC., XXXXXX CHEMICALS, INC.,
a Maryland corporation a Colorado corporation
By: /s/ Xxxxx Xxxxxxx By: /s/ Xxxxx Xxxxxxx
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Its: Authorized Signatory Its: Authorized Signatory
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UAP 23, INC., f/k/a CAG 23, INC., CROPMATE COMPANY,
a Delaware corporation a Delaware corporation
By: /s/ Xxxxx Xxxxxxx By: /s/ Xxxxx Xxxxxxx
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Its: Authorized Signatory Its: Authorized Signatory
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CSK ENTERPRISES, INC., GAC 26, INC.,
a Delaware corporation a Nebraska corporation
By: /s/ Xxxxx Xxxxxxx By: /s/ Xxxxx Xxxxxxx
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Its: Authorized Signatory Its: Authorized Signatory
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UAP 27, INC., f/k/a CAG 27, INC. GROWER SERVICE CORPORATION
a Delaware corporation (NEW YORK), a New York Corporation
By: /s/ Xxxxx Xxxxxxx By: /s/ Xxxxx Xxxxxxx
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Its: Authorized Signatory Its: Authorized Signatory
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HACO, INC., LOVELAND PRODUCTS, INC.,
an Illinois corporation a Colorado corporation
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By: /s/ Xxxxx Xxxxxxx By: /s/ Xxxxx Xxxxxxx
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Its: Authorized Signatory Its: Authorized Signatory
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LOVELAND INDUSTRIES, INC., GENMARKS, INC.,
a Colorado corporation a Delaware corporation
By: /s/ Xxxxx Xxxxxxx By: /s/ Xxxxx Xxxxxxx
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Its: Authorized Signatory Its: Authorized Signatory
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MIDWEST AGRICULTURE XXXXXXX CHEMICAL CO.,
WAREHOUSE CO.,a Nebraska corporation a North Dakota corporation
By: /s/ Xxxxx Xxxxxxx By: /s/ Xxxxx Xxxxxxx
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Its: Authorized Signatory Its: Authorized Signatory
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PLATTE CHEMICAL CO., PUEBLO CHEMICAL & SUPPLY CO.,
a Nebraska corporation a Colorado corporation
By: /s/ Xxxxx Xxxxxxx By: /s/ Xxxxx Xxxxxxx
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Its: Authorized Signatory Its: Authorized Signatory
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RAVAN PRODUCTS, INC., S.E. ENTERPRISES, INC.,
a Georgia corporation a Delaware corporation
By: /s/ Xxxxx Xxxxxxx By: /s/ Xxxxx Xxxxxxx
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Its: Authorized Signatory Its: Authorized Signatory
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SNAKE RIVER CHEMICALS, INC., TRANSBAS, INC.,
an Idaho corporation a Tennessee corporation
By: /s/ Xxxxx Xxxxxxx By: /s/ Xxxxx Xxxxxxx
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Its: Authorized Signatory Its: Authorized Signatory
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TRI-RIVER CHEMICAL COMPANY, INC., TRI-STATE CHEMICALS, INC.,
a Washington corporation a Texas corporation
By: /s/ Xxxxx Xxxxxxx By: /s/ Xxxxx Xxxxxxx
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Its: Authorized Signatory Its: Authorized Signatory
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TRI-STATE DELTA CHEMICALS, INC., UAP RECEIVABLES CORPORATION,
a Mississippi corporation a Delaware corporation
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By: /s/ Xxxxx Xxxxxxx By: /s/ Xxxxx Xxxxxxx
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Its: Authorized Signatory Its: Authorized Signatory
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UAP 22, INC., f/k/a UAP/CAG 22, INC., UAP/GA AG-CHEM, INC.,
a Texas corporation a Georgia corporation
By: /s/ Xxxxx Xxxxxxx By: /s/ Xxxxx Xxxxxxx
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Its: Authorized Signatory Its: Authorized Signatory
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UAPLP, INC., UNITED AGRI PRODUCTS - FLORIDA,
a Delaware corporation INC., a Florida corporation
By: /s/ Xxxxx Xxxxxxx By: /s/ Xxxxx Xxxxxxx
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Its: Authorized Signatory Its: Authorized Signatory
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UNITED AGRI PRODUCTS FINANCIAL VERDICON, INC.,
SERVICES, INC., a Colorado corporation a Delaware corporation
By: /s/ Xxxxx Xxxxxxx By: /s/ Xxxxx Xxxxxxx
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Its: Authorized Signatory Its: Authorized Signatory
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YVC, INC., UNITED AGRI PRODUCTS CANADA
a Montana corporation INC., a Canadian corporation
By: /s/ Xxxxx Xxxxxxx By: /s/ Xxxxx Xxxxxxx
--------------------------------- ---------------------------------
Its: Authorized Signatory Its: Authorized Signatory
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2326396 CANADA, INC.,
a Canadian corporation
By: /s/ Xxxxx Xxxxxxx
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Its: Authorized Signatory
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SCHEDULE "A"
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United Agri Products Argentina S.R.L. (Argentina)
United Agri Products Pty. Ltd. (Australia)
United Agri Products (Bolivia) S.R.L. (Bolivia)
United Agri Products do Brasial Ltda. (Brazil)
ConAgra International Comercial y Agricola (Chile)
United Agri Products Chile S.A. (Chile)
UAP de Colombia Ltda. (Colombia)
UAP de Costa Rica, S.R.L. (Costa Rica)
United Agri Products (UAP) Dominicana, S.A. (Dominion Republic)
United Agri Products Ecuador S.A. (Ecuador)
Phyto Service S.A. (France)
Xxxxxxx (France) S.A. (France)
Agridyne S.A. (France)UAP de Guatemala Cia. Ltda. (Guatemala)
UAP de Honduras, S. de X.X. (Honduras)
UAP - Asia Limited (Hong Kong)
UAP Mexico, S.A. de C.V. (Mexico)
Pacifex S.A. de C.V. (Mexico)
Tecnica Agricola de Mexico S.A. de C.V. (Mexico)
ConCampo S.A. de C.V. (Mexico)
United Agri Products de Nicaragua y Compania Limitada
United Agri Products, Inc. (Panama)
United Agri Products Paraguay S.R.L. (Paraguay)
United Agri Products del Peru S.R.L. (Peru)
UAP Agrochemical Kwa-Zulu Natal (Pty.) Limited (South Africa)
UAP Crop Care (Pty.) Ltd. (South Africa)
Agra-Pacific Co. Ltd. (Taiwan)
United Agri Products Limited (United Kingdom)
Loveland Industries Limited (United Kingdom)
Xxxxxx Agrichemicals Ltd. (United Kingdom)
Loveland Limited (United Kingdom)
Independent Agriculture Ltd (United Kingdom)
ConAgra Resources Europe Limited (United Kingdom)
BDR Agriculture Limited (United Kingdom)
Xxxxxx Xxxxxxx Limited (United Kingdom)
Kings Horticulture Limited (United Kingdom)
SCATS Agriproducts Limited (United Kingdom)
United Agri Products de Uruguay, S.A. (Uruguay)
United Agri Products de Venezuela S.R.L. (Venezuela)
UAP Zimbabwe (PVT) Ltd. (Zimbabwe)
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SCHEDULE "B"
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SERVICES
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Service
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MIS - includes all services required to maintain systems needed to support the
Companies' operations consistent with past practices. This includes all services
governed by applicable service level agreements (SLAs) currently existing
between UAP and the UAP Affiliates and the Companies.
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MIS - Software: Services required to support use of software by the Companies,
including Oracle.
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MIS - Desk Top Support: Services required to maintain software license
agreements, and support for applications used by the Companies.
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Invoicing and logistics support for sale of Loveland products.
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Credit: Activities and systems required to support credit research and customer
file maintenance, together with related reporting services.
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Administrative and travel support.
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Office space and support at UAP's offices in Greeley, Colorado, Tampa, Florida,
and certain employees within Xxxxxx Chemicals, Inc and an employee shared by
UAP's Canadian business.
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Accounting Support.
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Tax Support.
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Payroll support.
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Support of payroll and benefits for specified expatriate(s).
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Support and tracking of capital and lease expenditures.
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License Grant
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(a) UAP and UAP Affiliates hereby grant to ConAgra and the Companies an
exclusive (except as to UAP and UAP Affiliates) license to use the names
United Agri Products, UAP, Loveland, Crop Care, and any and all
derivations, modifications, variants, combinations, abbreviations, or
alternate forms thereof, including but not limited to any and all logos,
trademarks, service marks, trade names, domain names, graphics, design
elements, copyrights and trade dress related thereto (collectively,
"Licensed Property"), in any country throughout the world other than the
United States and Canada, for a period of two (2) years from the Effective
Time. There shall be no charge to ConAgra and the Companies for such
license beyond the Fee paid during the initial twelve (12) months of this
Agreement.
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Service
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License Grant Continued:
(b) Without limiting the generality of the foregoing, ConAgra and the Companies
may change the logo style and trade dress in connection with the Licensed
Property and may add or remove such logos, trademarks, service marks, trade
names, graphics, design elements, copyrights and trade dress as ConAgra and the
Companies may select for the purpose of facilitating its transition to one or
more different logos, trademarks, service marks, trade names, domain names,
graphics, design elements, copyrights and trade dress.
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Fee: Aggregate one-year fee for the Services is One million three hundred
thousand U.S. dollars (U.S.$1,300,000), to be invoiced monthly during the
initial twelve (12) months of this Agreement.
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