1
Exhibit 10.9
EXHIBIT D
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (the "Agreement"), is entered into as of this
9th day of December, 1999, by and among ContiGroup Companies, Inc.
("ContiGroup") and Premium Standard Farms, Inc. ("PSF"). ContiGroup and PSF and
shall be collectively referred to herein as the "Parties," and individually as
"Party."
WHEREAS, ContiGroup has expended substantial time of its management and
employees on behalf of PSF in negotiating the terms of a Consent Judgment in
State ex rel. Xxxxxxxx X. (Xxx) Xxxxx v. Premium Standard Farms, et al., Circuit
Court of Xxxxxxx County Missouri, Case No. 99CV-0745, in ensuring that PSF
complies with such Consent Judgment, in other environmental issues relating to
PSF and in ongoing strategic business issues, including but not limited to,
identifying and negotiating with potential acquisition candidates on behalf of
PSF;
NOW, THEREFORE, in consideration of the agreements and obligations set
forth herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties agree as follows:
1. In accordance with the resolution dated December 9, 1999 of
the Board of Directors of PSF, PSF shall pay the sum of five million dollars
($5,000,000) to ContiGroup over a period of five (5) years beginning December
20, 1999 (the "Payment"), in accordance with the following Payment Schedule:
2
Payment Schedule
Installment Payment No. Amount Due Date
----------------------- ------ --------
1 $1,000,000 December 20, 1999
2 $1,000,000 December 1, 2000
3 $1,000,000 December 3, 2001
4 $1,000,000 December 2, 2002
5 $1,000,000 December 1, 2003
2. PSF shall effectuate each installment of the Payment
by wire transferring such funds to:
Citibank NA
New York, New York
ABA# 000000000
ContiGroup Companies, Inc.
Account # 00000000
3. This Agreement shall bind and inure to the benefit of
the parties hereto, their present and former partners, officers, directors,
employees, attorneys, predecessors, shareholders successors, parents,
affiliates, members, subsidiaries, heirs, executors, administrators, assigns,
and each of them.
4. Each Party represents and warrants that it is fully
authorized to enter into, execute and perform its obligations under this
Agreement.
5. This Agreement shall be governed by and construed in
accordance with the substantive laws of the State of New York, regardless of
laws relating to the conflict of laws.
6. Any claim arising out of or relating to this
Agreement, including any claim arising out of or relating to any exhibits
hereto, may be instituted in any federal court of the Southern District of New
York or in any state court in New York County, State of New York, and each Party
agrees not to assert, by way of motion, as a defense or otherwise, in any such
claim, any claim or argument that it is not subject personally to the
jurisdiction of such court, that the claim
2
3
is brought in an inconvenient forum, that the venue of the claim is improper or
that this Agreement or the subject matter hereof or thereof may not be enforced
in or by such court. Each Party further irrevocably submits to the jurisdiction
of such court in any such claim. Any and all service of process or any other
notice in any such claim shall be effective against any Party if given
personally or by registered or certified mail, return receipt requested, or by
any other means of mail that requires a signed receipt, postage prepaid, mailed
to such Party as herein provided. Nothing herein contained shall be deemed to
affect the right of any Party to serve process in any manner permitted by law or
to commence legal proceedings or otherwise proceed against any other Parry in
any other jurisdiction.
7. This Agreement may be signed in multiple counterparts
that, taken together, shall be deemed to constitute one Agreement.
8. This Agreement constitutes the entire agreement among
and between the Parties hereto with respect to the subject matter hereof and
this Agreement supersedes all prior agreements or representations, written or
oral, with respect thereto. No parol or other evidence shall be offered to
explain, contradict or clarify the terms of this Agreement or the circumstances
under which it was entered.
9. This Agreement may be amended, superseded or
canceled, and the terms hereof may be waived, only by a written instrument
signed by the Parties hereto. This Agreement and the terms hereof may not be
waived or amended orally.
10. If any provision or portion of any provision of this
Agreement shall be held invalid or unenforceable, the remaining portion of such
provision and the remaining provisions of this Agreement shall not be affected
thereby. If the application of any provision or any portion of any provision of
this Agreement to any person or circumstance shall be held invalid or
3
4
unenforceable, the application of such provision or portion of such provision to
persons or circumstances other than those as to which it is held invalid or
unenforceable shall not be affected thereby.
IN WITNESS WHEREOF, the Parties have executed this Agreement on the
date first above written.
CONTIGROUP COMPANIES, INC.
By: /s/ Xxxx X. Xxxxx
---------------------------------
Name:
Title: Executive Vice President
PREMIUM STANDARD FARMS, INC.
By: /s/ Xxxx Xxxxx
---------------------------------
Name:
Title: CEO
4
