Registration of Securities Issued in a Business-Combination Transaction — Form S-4
Filing Table of Contents
Document/Exhibit Description Pages Size
1: S-4 Registration of Securities Issued in a 170 804K
Business-Combination Transaction
2: EX-1.1 Placement Agreement 26 97K
3: EX-2.1 Articles of Merger 6 33K
4: EX-3.1.A Certificate of Incorporation 17 70K
5: EX-3.1.B Certificate of Amendment 2 17K
14: EX-3.10 Restated By-Laws 20 80K
6: EX-3.2.A Certificate of Incorporation 2 19K
7: EX-3.2.B Certificate of Correction 1 16K
8: EX-3.4 Articles of Incorporation 3 20K
9: EX-3.5 Certificate of Incorporation 3 19K
10: EX-3.6 Amended and Restated By-Laws 22 88K
11: EX-3.7 Amended and Restated By-Laws 20 84K
12: EX-3.8 Restated By-Laws 23 94K
13: EX-3.9 Restated By-Laws 23 94K
15: EX-4.1.A Indenture 106 411K
16: EX-4.1.B Specimen Certificate 12 47K
17: EX-4.2 Registration Rights Agreement 21 82K
18: EX-4.3.A Credit Agreement 73 278K
19: EX-4.3.B First Amendment to Credit Agreement 15 59K
20: EX-4.3.C Second Amendment to Credit Agreement 8 41K
21: EX-4.3.D Third Amendment to Credit Agreement 5 28K
22: EX-4.3.E Fourth Amendment to Credit Agreement 27 102K
23: EX-4.3.F Fifth Amendment to Credit Agreement 13 55K
24: EX-4.3.G Guaranty Agreement 7 39K
25: EX-5.1 Opinion of Blackwell Sanders Peper Martin LLP 2 20K
26: EX-10.1 1999 Equity Incentive Plan 20 77K
36: EX-10.10 Stock Purchase Agreement 47 184K
37: EX-10.11 Market Hog Contract Grower Agreement 9 44K
27: EX-10.2 Long-Term Incentive Plan 9 32K
28: EX-10.3 Executive Level Severance Plan 13 54K
29: EX-10.4 Vice President Level Severance Plan 13 54K
30: EX-10.5 Special Executive Retirement Plan 16 69K
31: EX-10.6.A Premium Standard Farms Deferred Compensation Plan 17 71K
32: EX-10.6.B Amendment No.1 Psf Deferred Compensation Plan 2 17K
33: EX-10.7 Consulting Agreememt 8 36K
34: EX-10.8 Services Agreement 10 47K
35: EX-10.9 Consulting Agreement 4 22K
38: EX-12.1 Statement Re Computation of Ratio of Earnings 1 17K
39: EX-21.1 Subsidiaries 1 14K
40: EX-23.2 Consent of Arthur Andersen LLP 1 14K
41: EX-23.3 Consent of Kpmg LLP 1 14K
42: EX-25.1 Form T-1 29 98K
43: EX-25.2 Statement of Eligibility and Qualification on T-1 30 100K
44: EX-99.1 Form of Letter 2 22K
45: EX-99.2 Form of Letter of Transmittal 9 42K
46: EX-99.3 Form of Notice of Guaranteed Delivery 4 24K
47: EX-99.4 Form of Instructions 2 20K
48: EX-99.5 Form of Letter to Clients 2± 16K
49: EX-99.6 Guidelines 4± 23K
Exhibit 10.11
MARKET HOG CONTRACT GROWER AGREEMENT
THIS MARKET HOG CONTRACT GROWER AGREEMENT ("AGREEMENT") is entered into
as of May 13, 1998, by and between CONTINENTAL GRAIN COMPANY, a Delaware
corporation, whose address for purposes of this Agreement is 222 S. Riverside
Plaza, 9th Floor, Chicago, Illinois 60606 (hereinafter referred to as "CONTRACT
GROWER") and CGC Asset Acquisition Corp., a Delaware corporation, whose address
for purposes of this Agreement is 423 West 8th Street, Suite 200, Kansas City,
Missouri 64105 ("PSF").
WHEREAS, Contract Grower became a stockholder of PSF in connection with
the Stock Purchase Agreement, dated as of December 23, 1997 between Contract
Grower and PSF Holdings, L.L.C. (the "STOCK PURCHASE AGREEMENT"), as defined
therein;
WHEREAS, Contract Grower owns the land described on Exhibit A (the
"PREMISES");
WHEREAS, PSF owns all of the buildings and improvements located on the
Premises (collectively, the "FACILITIES"); and
WHEREAS, PSF and Contract Grower desire to enter into an agreement
whereby Contract Grower, as an independent contractor, will utilize the Premises
to breed, grow and care for pigs, all of which are owned by PSF pursuant to
terms hereinafter set forth.
NOW, THEREFORE, for and in consideration of the mutual covenants
hereinafter contained, it is agreed by and between PSF and Contract Grower as
follows:
1. Contract Grower will provide the Premises and operate thereon
an environmentally controlled swine confinement operation with buildings,
equipment and other properties specified herein to be provided by PSF. The
Premises include the following PSF minimum requirements:
A. The Premises have all utilities (including but not
limited to, water, electricity, propane and/or
natural gas) separate from any other properties owned
by Contract Grower and all such utilities are billed
separately for such property.
B. The Premises have all material easements and permits
on real estate for waste disposal, as defined by
local, state and federal laws and requirements.
C. The Premises have a separate legal and recorded means
of ingress and egress.
D. The Premises have waste water management system in
accordance with all material federal, state and local
laws and regulations.
Contract Grower represents that it has title to the Premises in fee simple, free
and clear of all materials, liens or encumbrances, except for any liens or
encumbrances created hereby. Upon
PSF's request, Contract Grower shall cause to be recorded in the Public Registry
of the Counties in which the Premises are located, a Memorandum of this
Agreement such Memorandum to be in a customary form and content and otherwise
reasonably satisfactory to PSF.
2. Contract Grower, as an independent contractor, agrees
to breed, grow and care for pigs placed in the Facilities, and agrees to take
proper care consistent with the highest standards of animal husbandry to breed
and raise pigs to market weight. Contract Grower will follow all the rules of
management practices established from time to time by PSF. Contract Grower's
obligations shall include, but not be limited to, the following:
A. The loading and unloading of pigs in the
manner and at the time reasonably requested
by PSF and all other labor incident to and
related to the breeding, growing and care of
the pigs, or otherwise necessary for
Contract Grower to perform under this
Agreement, including, without limitation,
all payroll taxes and fringe benefits
associated therewith.
B. Management of the unit and accurate
preparation and submission, in a timely
manner, of all production and inventory
records as reasonably deemed necessary by
PSF. Contract Grower agrees to notify PSF
promptly in writing of any and all errors,
adjustments, or discrepancies in those
records other than of an immaterial nature.
PSF shall have the right to withhold or
delay payment to Contract Grower if records
are not submitted in a timely manner or if
material discrepancies exist in Contract
Grower's records.
3. PSF agrees to provide Contract Grower with the use of all
Facilities necessary to breed, grow and care for pigs to market weights.
4. PSF shall be responsible on a timely basis:
A. For repair and maintenance of the Facilities and
Premises by making all necessary repairs.
B. Proper disposal of all waste in accordance with all
material federal, state and local regulations.
5. PSF agrees to furnish Contract Grower on a timely basis with
the following:
A. Sufficient supply of artificial inseminate, boars and
gilts to operate the Facilities in accordance with
the specifications of PSF.
B. All utilities, including telephone, water, gas, heat,
electricity, trash disposal and all other utilities
and services of any kind and nature used in and about
the Premises.
C. Necessary feed and feed drugs.
D. Vaccination and injectable drugs.
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E. Other animal health products.
F. Supplies.
G. Professional consultation, and procedures of PSF's
approved program.
H. All insurance related to risk of loss of the swine.
I. All transportation costs for the swine to and from
the Facilities.
6. Title to the pigs and all items furnished by PSF pursuant to
this Agreement shall at all times be and remain in PSF, and all such swine and
items, or any portion of them, may be sold and/or moved by PSF to such places
and at such times as PSF shall decide. Contract Grower agrees, if requested by
PSF, to execute a UCC-1 notice filing acknowledging PSF's ownership of
Facilities, swine, feed and medical supplies inventory supplied by PSF to
Contract Grower. PSF shall be permitted to place signs at or near the location
of pigs, providing notice of ownership.
7. During the term of this Agreement, Contract Grower:
A. agrees to use commercially reasonable efforts not to
allow any livestock in the Facilities other than
livestock owned by PSF; and
B. agrees to use commercially reasonable efforts not to
allow any other livestock on the Premises, except for
cattle used for grazing such property to meet the
requirements of Contract Grower's waste management
plan for the Premises. Contract Grower further agrees
to use the supplies furnished by PSF only for the
feeding and caring of PSF's pigs, and for no other
purpose. Contract Grower further agrees not to use
any feed, medication, disinfectant, insecticides, or
other chemicals not approved by PSF.
8. Contract Grower agrees that Contract Grower will not permit
any swine to be placed, for grazing, confinement, feeding, or any other purpose,
on any lands owned, leased or occupied by Contract Grower within a one-mile
radius of the Facilities. It is understood that this requirement relates to
PSF's sanitation requirements for swine production and that breach of this
covenant shall be a material breach of this Agreement by Contract Grower.
9. Payment to the Contract Grower for services rendered pursuant
to this Agreement shall be made and delivered as follows:
A. A budgeted monthly fee in an amount equal to all
labor provided by Contract Grower at the Facilities,
including payroll taxes, fringe benefits, bonuses and
incentives, workers compensation, interest, etc. in
such amount as reasonably estimated by the Contract
Grower and approved by PSF ("BUDGETED MONTHLY LABOR
COST"). The Budgeted Monthly Labor Cost shall be
reconciled on a quarterly basis with the actual labor
costs. Should such actual labor costs exceed the
Budgeted Monthly Labor Costs, PSF shall promptly (but
in no event later than 45 days following the end of
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each PSF fiscal quarter) pay such excess costs to
Contract Grower. If the actual costs are less than
the Budgeted Monthly Labor Cost, Contract Grower
shall credit such difference to future amounts
payable to PSF hereunder.
B. A monthly fee in an amount equal to all other costs
incurred by Contract Grower pursuant to this
Agreement, in the performance of its duties hereunder
or otherwise arising from or in connection with the
Premises (including property taxes) in such amount,
as reasonably estimated by Contract Grower and
approved by the PSF (the "BUDGETED MONTHLY SERVICE
COSTS"). The Budgeted Monthly Service Costs, PSF
shall promptly (but in no event later than 45 days
following the end of each PSF fiscal quarter) pay
such excess costs to Contract Grower. If such actual
costs are less than the Budgeted Monthly Service
Costs, Contract Grower shall credit such difference
to future amounts payable to PSF hereunder.
10. PSF shall hold harmless and indemnify Contract Grower (and its
directors, officers, employees, stockholders, successors and assigns) from and
against any and all claims, costs, liabilities, losses, damages deficiencies,
judgments, assessments, fines, settlements, costs and expenses (including
interest, penalties and fees, expenses and disbursements of attorneys, experts,
personnel and consultants incurred by any such indemnified party in any action
or proceeding between PSF and such indemnified party or between such indemnified
party and any third party, or otherwise) ("LOSSES")) occasioned by, arising out
of, based upon or otherwise in respect or in connection with this Agreement or
the performance by Contract Grower of its obligations hereunder or the ownership
of the Premises (prior to the termination of this Agreement in accordance
herewith), including without limitation employment related claims, including
workers compensation and Title VII claims, and any Loss resulting from any
accident or other occurrence on the Premises that causes a Loss, personal injury
or death to any person or property; provided, that in the event a final,
non-appealable judgment by a court of competent jurisdiction establishes that
such a Loss was caused by the intentional misconduct or gross negligence of such
indemnified party, then such indemnified party shall reimburse PSF for any
indemnification amounts received by it for such Loss pursuant to this Section
10. PSF agrees that it will at its own expense procure and maintain general
liability insurance with a responsible company or companies authorized to do
business in the state in which the Premises are located in amounts not less than
$5,000,000 for any one person injured at the Premises for any one accident and
with the limits of $5,000,000 for property damage, protecting the Contract
Grower against any Loss on account of injury to any person or to any property
belonging to any person or persons, by reason of any casualty, accident or other
happening on the Premises during the term of this Agreement. Contract Grower
shall be shown and designated as loss payees under such policies or such other
designation as may be requested by Contract Grower consistent with this
paragraph.
11. This Agreement shall terminate upon the earliest to occur of:
A. the date upon which Contract Grower no longer
beneficially owns directly or indirectly any interest
in the capital stock of PSF;
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B. the date upon which the Missouri Corporate Farming
Laws (as defined in the Stock Purchase Agreement)
would not be violated by PSF's ownership of the
Premises or by PSF's farming (as defined under the
Missouri Corporate Farming Laws) in the State of
Missouri; and
C. the mutual written consent of the parties;
provided, however, that notwithstanding such termination,
Section 10 shall continue in full force and effect. Upon
termination of this Agreement, PSF shall promptly pay any and
all accrued but unpaid fees pursuant to Section 9 hereof. Upon
termination of this Agreement, PSF shall have the option to
purchase the Premises from Contract Grower for $1.00 (the
"OPTION"). The Option is assignable by PSF; provided, that,
PSF provides prompt written notice of such assignment to
Contract Grower. PSF (or its assignee) may exercise the Option
by delivery of written notice to Contract Grower of its
exercise of the Option on or before the 30th day following
termination of this Agreement. The closing of the purchase and
sale pursuant to the Option (the "LAND SALE CLOSING") shall
occur as soon as practicable following termination of this
Agreement. At the Land Sale Closing, PSF (or its assignee)
shall deliver to Contract Grower $1.00 in cash, plus an amount
reasonably estimated to equal to the real property taxes
accrued on the Premises from the date of termination of this
Agreement to the date of the Land Sale Closing. At the Land
Sale Closing the parties shall execute such documents and take
such actions as are reasonably necessary or appropriate to
effectuate the intent of the foregoing; provided that Contract
Grower shall not be obligated to make any representations or
warranties regarding the Premises. PSF shall pay all of
Contract Grower's transaction expenses (including reasonable
fees and expenses of counsel) incurred in connection with the
exercise of the Option and shall pay all transfer taxes
associated with the transfer of the Premises to PSF.
Notwithstanding anything to the contrary contained herein, the
Option shall terminate twenty-one (21) years after the later to occur of (a) the
death of all of the current members of the Boards of Directors of the parties
hereto and (b) the death of the lineal descendants of such members that are
living as of the date hereof.
12. Contract Grower shall be in default of this Agreement for any
of the following reasons:
A. Breach of any material term or condition of this
Agreement and failure to cure such breach within
thirty (30) days written notice of such breach by
PSF.
B. Contract Grower willfully encumbers, mortgages, sells
or transfers any hogs owned by PSF, except as
directed by, or with the consent of, PSF.
C. Contract Grower has made a material misrepresentation
in this Agreement that has a material adverse effect
on Contract Grower's ability to perform
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hereunder and such breach is not cured within 30 days
after receipt of written notice from PSF of such
breach.
13. In the event of default, as set forth in the above Section 12,
PSF, its agents, employees or assigns at its own option, without prejudice to
any other legal rights and remedies it may have, shall be fully authorized to
take possession of the animals and any unused feed or other supplies furnished
by PSF, and care for the swine in the Facilities or appoint a third party to do
so. In such event, Contract Grower shall forfeit all unpaid fees hereunder, and
expressly waives, releases and relinquishes any right of action against PSF for
PSF's repossession of the animals, unused feed and other supplies furnished by
PSF and from any and all other claims (other than pursuant to Section 10, to the
extent arising prior to such event of default) against PSF, its agents,
employees or assigns, whatsoever. Thereafter, PSF, its agents, employees or
assign shall and may peaceably use and enjoy the Premises for the remainder of
the term of this Agreement free from molestation, eviction or disturbance by the
Contract Grower, subject to all applicable laws and regulations.
14. ANY CONTROVERSY OR CLAIM ARISING BETWEEN THE PARTIES,
INCLUDING, BUT NOT LIMITED TO, DISPUTES RELATING TO THIS AGREEMENT, THE
ARBITRABILITY OF ANY DISPUTE OR THIS AGREEMENT, OR OF ANY BREACH OF THIS
AGREEMENT, WHETHER SUCH CONTROVERSY OR CLAIM ARISES BEFORE, DURING, OR AFTER
TERMINATION OF THE AGREEMENT, SHALL BE SETTLED BY BINDING ARBITRATION IN
ACCORDANCE WITH THE COMMERCIAL RULES OF THE AMERICAN ARBITRATION ASSOCIATION BY
A PANEL OF THREE ARBITRATORS. THIS AGREEMENT TO ARBITRATE SHALL CONTINUE IN FULL
FORCE AND EFFECT DESPITE THE EXPIRATION, RESCISSION OR TERMINATION OF THIS
AGREEMENT. BY ENTERING INTO THIS AGREEMENT, THE PARTIES WAIVE THE RIGHT TO HAVE
THEIR DISPUTE TRIED AND ADJUDICATED BY A COURT OF LAW. WITHOUT INCONSISTENCY
WITH THIS AGREEMENT TO ARBITRATE, EITHER PARTY MAY SEEK FROM A COURT ANY
PROVISIONAL REMEDY THAT MAY BE NECESSARY TO PREVENT IRREPARABLE HARM, PENDING
THE ESTABLISHMENT OF THE ARBITRAL PANEL OR ITS DETERMINATION OF THE MERITS OF
THE CONTROVERSY. RISK OF LOSS TO THE FEEDER PIGS AND HOGS WILL BE DEEMED
IRREPARABLE HARM. THE SEEKING OF ANY PROVISIONAL REMEDY BY EITHER PARTY SHALL BE
SUPPLEMENTAL TO, AND NOT IN PLACE OF PSF'S CONTRACTUAL RIGHT TO RETAKE
POSSESSION PURSUANT TO SECTION 13 HEREOF.
UPON OBJECTION BY ANY PARTY, MULTI-PARTY ARBITRATION SHALL NOT BE
UTILIZED. THE PARTIES HEREIN AGREE TO RESOLVE ALL DISPUTES BY SUCH ARBITRATION
AT THE AMERICAN ARBITRATION ASSOCIATION OFFICE IN NEW YORK, NEW YORK. IN
REACHING THEIR CONCLUSIONS, THE ARBITRATORS SHALL APPLY TO THIS AGREEMENT THE
LAWS WHICH A NEW YORK COURT WOULD APPLY. THE ARBITRATORS SHALL HAVE THE
AUTHORITY TO AWARD ACTUAL MONEY DAMAGES (WITH INTEREST ON UNPAID AMOUNTS FROM
THE DATE DUE), SPECIFIC PERFORMANCE, AND TEMPORARY INJUNCTIVE RELIEF, BUT THE
ARBITRATORS SHALL NOT HAVE THE AUTHORITY TO AWARD EXEMPLARY, PUNITIVE, OR
CONSEQUENTIAL DAMAGES, AND THE PARTIES
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EXPRESSLY WAIVE ANY CLAIMED RIGHT TO SUCH DAMAGES. JUDGMENT UPON THE AWARD
RENDERED BY THE ARBITRATORS MAY BE ENTERED IN ANY COURT HAVING JURISDICTION
THEREOF. THE COST OF SUCH ARBITRATION SHALL BE DIVIDED EQUALLY AMONG THE PARTIES
TO THE ARBITRATION. EACH PARTY SHALL BEAR THE COST OF THEIR OWN EXPENSES AND
ATTORNEY'S FEES. FAILURE TO ARBITRATE ALL SUCH CLAIMS OR CONTROVERSIES SHALL BE
DEEMED A BREACH OF THIS AGREEMENT.
15. Contract Grower and PSF may not assign this Agreement (except
in each case to their respective controlled affiliates and subsidiaries) without
the prior written consent of the other, which consent shall not be unreasonably
withheld or delayed.
16. Each party acknowledges that this Agreement is the complete
understanding between the parties and no representation or promise inconsistent
with any provisions of this Agreement has been made to it by any employee, agent
or representative of the other party. Any and all currently existing agreements,
representations or understandings between Contract Grower and PSF with respect
to the Premises and the operation of the Facilities, except for the Stockholders
Agreement dated the date hereof among Contract Grower, PSF Holdings, L.L.C. and
PSF and any agreements or instruments contemplated thereby, whether written or
verbal, are hereby revoked in their entirety and superseded by this Agreement.
Any additions, amendments or modifications to this Agreement must be made in
writing and signed by both parties hereto.
17. The various right, powers, options, elections and remedies of
either party provided in this Agreement shall be construed as cumulative and no
one of them is exclusive of the others, or exclusive of any rights, remedies or
priorities allowed either party by law, and shall in no way affect or impair the
right of either party to pursue any other equitable or legal remedy to which
either party may be entitled as long as any default remains in any way
unremedied, unsatisfied or undischarged.
18. Notices as provided for in this Agreement shall be given to
the respective parties hereto at the addresses designated in the Preamble of
this Agreement and shall be sent by certified mail. Any party who wishes to
change addresses shall give notice of the change as provided herein.
19. Each and every covenant and agreement herein contained shall
extend to and be binding upon the respective successors, heirs, administrators,
executors and assigns of the parties hereto.
20. All representations, warranties, covenants and agreements of
the parties contained in this Agreement shall survive the execution of this
document for the term of this Agreement.
21. Any provision of this Agreement that is prohibited or
unenforceable in any jurisdiction will, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof.
No waiver of any provision of this Agreement will be deemed to be, or will
constitute a waiver of any similar or other provision.
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22. This Agreement is deemed to be made under, and shall be
construed according to the laws of the State of New York applicable to
agreements made and to be performed entirely with such State.
23. Each of the parties hereto represents it has authority to
enter into this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement in
duplicate at the time and place first above written.
CONTRACT GROWER:
CONTINENTAL GRAIN COMPANY
By: /s/John Meyer
------------------------------
Title: Vice President
---------------------------
MAIL ADDRESS
Continental Grain Company
P.O. Box 5543
Chicago, IL 60680-5543
CGC ASSET ACQUISITION CORP.
By: /s/ William Patterson
------------------------------
Title: Vice President
---------------------------
MAIL ADDRESS
c/o Premium Standard Farms, Inc.
423 West 8th Street, Suite 200
Kansas City, MO 64105
Attention: Chief Executive Officer
Social Security No./Tax I.D. No.
8
As an inducement for CGC to enter into the foregoing Agreement, the undersigned
hereby, jointly and severally, irrevocably and unconditionally guarantees the
payment and performance of all obligations of CGC Asset Acquisition Corp.
pursuant to the Agreement.
Date May 13, 1998 PREMIUM STANDARD FARMS, INC.
By: /s/ William Patterson
-----------------------------------
Name: William R. Patterson
Title: Vice President
Date May 8, 1998 PSF GROUP HOLDINGS, INC.
By: /s/John Meyer
-----------------------------------
Name: John Meyer
Title: CEO
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Dates Referenced Herein
| Referenced-On Page |
|---|
| This ‘S-4’ Filing | | Date | | First | | Last | | | Other Filings |
|---|
| |  |
| Filed on: | | 6/29/01 | | | | | | | None on these Dates |
| | 5/13/98 | | 1 | | 9 |
| | 5/8/98 | | 9 |
| | 12/23/97 | | 1 |
| List all Filings |
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