Exhibit 2.2
AMENDMENT TO STOCK PURCHASE AGREEMENT
This Amendment to Stock Purchase Agreement (this "Amendment"), dated as of
November 23, 2003, is entered into by and among UAP Holding Corp., a Delaware
corporation ("Buyer"), ConAgra Foods, Inc., a Delaware corporation ("Seller"),
and United Agri Products, Inc., a Delaware corporation (the "Company").
RECITALS:
A. Buyer, Seller and the Company entered into a Stock Purchase Agreement
dated as of October 29, 2003 (the "Agreement").
B. Section 14.2 of the Agreement provides that it may be modified or
amended by an instrument in writing, signed by the party against whom
enforcement of such modification or amendment is sought.
C. Buyer, Seller and the Company desire to amend the Agreement to reflect
certain agreements among such parties.
AGREEMENT:
In consideration of the promises and mutual agreements contained herein and
in the Agreement, the parties hereto agree as follows:
1. Definitions. All capitalized terms used but not defined herein shall
have the meanings given to them in the Agreement.
2. Estimated Closing Balance Sheet.
2.1 Section 3.2 of the Agreement is hereby deleted and replaced with the
following:
"3.2 Estimated Closing Balance Sheet. Attached hereto as Exhibit 3.2
is a copy of the estimated combined consolidated balance sheet for the
Business (the "Estimated Closing Balance Sheet"), and included with
the Estimated Closing Balance Sheet is a copy of the estimate of the
calculation of Net Book Value (the "Estimated Net Book Value"), which
has been prepared pursuant to the provisions of Section 5.1(a) using
the amounts reflected on the Estimated Closing Balance Sheet, both of
which are estimated as of the Closing Date.
2.2 A new Exhibit 3.2 attached hereto as Attachment A is hereby added to
the Agreement.
3. Exhibits 3.3.1, 4.1.4 and 4.1.6 are hereby deleted and replaced with
new Exhibits 3.3.1, 4.1.4 and 4.1.6 attached hereto as Attachment B,
Attachment C, and Attachment D, respectively.
4. Effective Time. The last sentence of Section 4 of the Agreement is
amended to read in its entirety as follows:
"Closing shall be effective as of 11:59 p.m. central time on the day
immediately preceding the Closing Date (the "Effective Date")."
5. Leased Property. The following new Section 7.22A shall be added to the
Agreement:
"7.22A Leased Property. With respect to (x) each of the leases in the
following locations between an Acquired Company and Seller or an
Affiliate of Seller (other than the Acquired Companies): Xxxxxxx
(Milestone), SK; Fairgrove, MI; Grand Forks, ND; Irvington, IA;
Jamestown, ND; Ladoga, IN; Xxxxxxx, MB; Nokomis, SK; West Jefferson,
OH and Yorkton, SK (the "Owned Site Leases") and (y), in connection
with each of the Owned Site Leases, the portion of the leased premises
exclusively possessed by the applicable Acquired Company, as lessee,
and the Common Access Area (as defined in the Owned Site Leases) (the
"Premises"): (a) Seller or Seller's Affiliate, which is the lessor
under the Owned Site Lease has good and marketable title to the
Premises as of this Closing, free and clear of any Encumbrance, except
for Permitted Encumbrances; (b) as of the date hereof, to Seller's
knowledge, there are no pending or threatened condemnation,
expropriation, eminent domain or other similar proceedings, lawsuits
or administrative actions relating to the Premises which materially
and adversely affect the current use or occupancy thereof; (c) there
are no outstanding written or oral rights, agreements, options or
rights of first refusal to purchase the Premises, or any portion
thereof or interest therein, which have been granted to any other
Person; (d) to Seller's knowledge, there are no parties (other than
Seller or Seller's Affiliates and the Acquired Companies) in
possession of or holding any rights to take possession of the
Premises; and (e) except for any matter which would not materially
adversely affect the current use of the Premises, (i) the legal
description, if any, for the Premises contained in the Owned Site
Lease is an adequate approximation of the Premises, (ii) to Seller's
knowledge any buildings and improvements of the lessee under the Owned
Site Leases are located within the boundary lines of the Premises, are
not in violation of applicable setback requirements, zoning laws, and
ordinances (and none of the properties or buildings or improvements
thereon are subject to "permitted non-conforming use" or "permitted
non-conforming structure" classifications), and do not encroach on any
easement which may burden the Premises, (iii) to Seller's knowledge,
the Premises does not serve any adjoining property for any purpose
inconsistent with the current use of the Premises, and (iv) to
Seller's knowledge the Premises is not located within any flood plain
or subject to any similar type restriction for which any permits or
licenses necessary to the use thereof have not been obtained. With
respect to the subleases between an Acquired Company, as lessee, and
Seller, as lessor, which affect premises located in Browns, IL and
Carrington, ND, respectively, each master lease between Seller, as
lessee, and a third party landlord which affect such premises (each, a
"Master Lease") is a valid and binding obligation of Seller and to
Seller's knowledge, is in full force and effect
without further amendment. Seller, and to the knowledge of Seller,
each other party thereto, is not (with or without lapse of time or the
giving of notice, or both) in material breach or default under any
Master Lease, except for a breach or default arising in the ordinary
course of business that has been cured or that will be resolved in the
ordinary course of business, will not result in any material liability
to the Seller and will not materially adversely affect the possession
by Seller of such location. To Seller's knowledge, neither party to
any Master Lease has terminated or cancelled, or intends to terminate
or cancel, a Master Lease."
6. Hiring of Pilots. The following new Section 9.2.6 shall be added to
the Agreement:
"9.2.6 Hiring of Pilots. Buyer shall cause the Company to hire, on the
Closing Date, the two (2) pilots who currently pilot the Xxxx at the
same base salary as such pilots received from Seller."
7. Exhibit 9.3.1 is hereby deleted and replaced with the new Exhibit
9.3.1 attached hereto as Attachment E.
8. DeForest Property. The following new Section 9.14 shall be added to
the Agreement:
"9.14 DeForest, WI Real Estate.
9.14.1 The transfer to Seller by Grower Service Corporation
(New York) ("Grower Service") of the corn pad and
underlying real estate and driveway to the East thereof
(the "Property") at UAP Great Lakes retail location in
DeForest, Wisconsin cannot be completed without first
obtaining certain approvals and/or waivers
(collectively, the "Approvals") from Columbia County,
Wisconsin, or certain of its departments or agencies
(any of which constitute the "County").
9.14.2 After Closing, Seller, Buyer, the Company and Grower
Service shall use commercially reasonable efforts to
obtain the Approvals, including having a certified
survey of the Grower Service property prepared
identifying the Property as the parcel bounded by the
property lines located on the west, north and south and
on the east by a line parallel with the western
property line located 180 feet to the east thereof to
be separated from the Grower Service property for
conveyance to Seller, and providing for an
approximately 25 foot wide easement for ingress and
egress to and from County Highway "C" over the existing
asphalt driveway/parking area on the parcel to be
retained by Grower Service, and complying with all
reasonable requests or conditions made by the County in
connection with the Approvals process. Buyer and the
Company shall cause
Grower Service not to reflect the Property as an owned
asset on the books and records of Grower Service, but
rather shall cause Grower Service to treat the Property
as equitably owned by Seller. Prior to obtaining the
Approvals, Seller shall pay Seller's proportionate
share of real property taxes and shall indemnify and
hold harmless Buyer, the Company and Grower Service for
any liability or claim resulting from or in connection
with the Property from the date hereof until the
transfer of the Property from Grower Service to Seller
(as described below) unless such liability or claim is
caused by the act or omission of Buyer, the Company,
Grower Service, their Affiliates, or their respective
employees, agents, customers, licensees, invitees or
contractors (in each case, other than the Seller and
its Affiliates (other than the Acquired Companies)), in
which case Seller shall indemnify and hold harmless
Buyer to the extent such liability or claim was not
caused by the act or omission of Buyer, the Company,
Grower Service, their Affiliates, or their respective
employees, agents, customers, licenses, invitees or
contractors (in each case, other than the Seller and
its Affiliates (other than the Acquired Companies)).
Within thirty (30) days after such Approvals have been
obtained, Buyer and the Company shall cause the
Property to be transferred by Grower Service to Seller,
free and clear of any and all Encumbrances dated on or
after Closing. This transfer of the Property shall be
for nominal consideration and shall include all of
Grower Services' rights, easements, water rights,
xxxxx, well permits and other appurtenances in and to
such Property.
9.14.3 In the event that the Approvals cannot be reasonably
obtained within four (4) months after Closing, Buyer
shall cause Grower Service to enter into a long term
written lease agreement with Seller upon commercially
reasonable terms pursuant to which Seller shall have
possession and use of the Property including the
driveway access at a rental cost of not more than
Twenty Dollars ($20.00) per year plus a pro rata share
of the real estate taxes for the Property, with a
perpetual right of renewal in Seller, and with no
obligation of Grower Service to maintain any
improvements on the Property."
9. Routers.
9.1 The following new Section 9.15 shall be added to the Agreement:
"9.15 Routers. The parties hereto acknowledge and agree that the
routers listed on Exhibit 9.15 hereto (the "Routers") are located at
locations owned or leased by the Acquired Companies, but that such
Routers are owned by Seller and constitute
Retained Assets. The Company shall have the option to purchase the
Routers, as a whole and not in part, on an "as-is where-is" basis
without representation or warranty, at any time within the one (1)
year period following the Closing Date. The purchase price for the
Routers shall be the net book value of the Routers as of the date of
the transfer of the Routers to the Company and shall be paid by the
Company to Seller in immediately available funds."
9.2 A new Exhibit 9.15, attached hereto as Attachment F, is hereby added
to the Agreement.
10. WAN Connection. The following new Section 9.16 shall be added to the
Agreement:
"9.16 Wan Connection. For a period of one (1) year following the
Closing Date, Buyer and the Company shall continue to provide to
Seller WAN connection access from Seller's Carrington, North Dakota
and Hayward, Minnesota locations to Seller's Omaha, Nebraska location.
Such access shall be provided on a basis consistent with the manner in
which the Company provided such access immediately prior to the date
hereof. Seller shall pay the Company an amount equal to $200 per month
for services relating to the Xxxxxxxxxx location and an amount equal
to $200 per month for services relating to the Hayward location.
Seller shall have the right to terminate this service for either
location or both such locations by giving Buyer at least sixty (60)
days written notice."
11. Location List. Exhibit D to the Seller Disclosure Schedule is hereby
deleted in its entirety and replaced in its entirety with a new
Exhibit D, which is attached hereto as Attachment G.
12. Xxxxxx Claim. The following new Section 12.1.5.A shall be added to the
Agreement:
"12.1.5.A The claims made by each of Xxxxx Xxxxxx Xxxxxx, Xxxxxx
Xxxxxx, Xx., Xxxxxxxx Xxxxxx, Xxxxx Xxxxxx, Xxxxx Xxxxxx, Xxxxxxxx
Xxxxx and Xxxxx Xxxxxxxx relating to the automobile accident involving
such persons which occurred on or about September 4, 2002
(collectively, the "Xxxxxx Claim"). Seller shall solely control the
Xxxxxx Claim and may settle or compromise the Xxxxxx Claim without the
consent of Buyer, the Company, and/or the Company's Affiliates. The
Company agrees to execute, or cause its Affiliates to execute, if
necessary, any agreement necessary to settle or compromise the Xxxxxx
Claim. No Liability relating to the Xxxxxx Claim shall be included in
the calculation of Net Book Value."
13. Notwithstanding anything to the contrary in Section 9.11 of the
Agreement, Buyer and Seller hereby agree that (i) Buyer shall be
deemed to have exercised the Option , (ii) Net Book Value shall be
increased by an amount equal to Two Million Two Hundred Thousand
Dollars ($2,200,000), and (iii) Buyer shall be
responsible for all additional reasonable costs of acquiring the Xxxx
35, including filing fees, registration costs, taxes and other direct
out-of-pocket costs.
14. The Potential UAP Arrangements Schedule, which is part of Exhibit
1.1(c), is hereby deleted in its entirety and replaced with a new
Potential UAP Arrangement Schedule, which is attached hereto as
Attachment H.
15. Equipment Lease Credit Support. Seller agrees that the letter of
credit attached hereto as Attachment I is satisfactory to Seller and
that the financial institution providing such letter of credit is
satisfactory to Seller.
16. Miscellaneous.
16.1 Ratification; Entire Agreement. This Amendment shall not effect any
terms or provisions of the Agreement other than those amended hereby and is only
intended to amend, alter or modify the Agreement as expressly stated herein.
Except as amended hereby, the Agreement remains in effect, enforceable against
each of the parties, and is hereby ratified and acknowledged by each of the
parties. The Agreement, as amended by this Amendment, constitutes the entire
agreement among the parties hereto with respect to the subject matter hereof and
supercedes any prior or contemporaneous agreements, whether oral or written,
among the parties with respect to the subject matter hereof. No amendment or
modification of this Amendment shall be effective unless made in writing and
duly executed by the parties hereto.
16.2 Counterparts. This Amendment may be executed in one or more
counterparts, each of which shall be regarded as an original and all of which
shall constitute one and the same instrument.
16.3 No Waiver. The execution, delivery and effectiveness of this Amendment
shall not operate as a waiver of any right, power or remedy of any party under
the Agreement or any other document, instrument or agreement executed in
connection therewith, nor constitute a waiver of any provision contained
therein, except as specifically set forth herein.
16.4 Applicable Law. This Amendment and the legal relations among the
parties hereto shall be governed by and construed in accordance with the laws of
the State of Delaware applicable to contracts made and performed in Delaware
(without regard to conflicts of law doctrines).
16.5 Successors and Assigns. This Amendment shall be binding upon and shall
inure to the benefit of the parties hereto and their respective successors and
assigns.
16.6 Effect of Headings. The headings of the various sections and
subsections herein are inserted merely as a matter of convenience and for
reference and shall not be construed as in any manner defining, limiting, or
describing the scope or intent of the particular sections to which they refer,
or as affecting the meaning or construction of the language in the body of such
sections.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment on the
date first above written.
CONAGRA FOODS, INC., UAP HOLDING CORP.,
a Delaware corporation a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxx By: /s/ Xxxxx Xxxxxxx
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Its: Authorized Signatory Its: Authorized Signatory
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UNITED AGRI PRODUCTS, INC.,
a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxx
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Its: Authorized Signatory
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