AMENDMENT TO ASSET PURCHASE AGREEMENT
THIS AMENDMENT is made and entered into this 30th day of
December, 1999, by and between SEABOARD CORPORATION, a Delaware
corporation ("Seaboard"), and CONAGRA, INC., a Delaware
corporation ("ConAgra").
RECITALS:
(a) On December 6, 1999, Seaboard and ConAgra entered
into an Asset Purchase Agreement (the "Asset Purchase
Agreement") pursuant to which Seaboard agreed to sell
to ConAgra and ConAgra agreed to purchase from Seaboard
certain assets owned by Seaboard which are used
exclusively in connection with the poultry business
(the "Business") as conducted by Seaboard Farms of
Kentucky, Inc. ("Seaboard Kentucky") and Seaboard Farms
of Athens, Inc., Seaboard Farms of Elberton, Inc. and
Seaboard Farms of Chattanooga, Inc. (the "Seaboard
Subsidiaries") and substantially all of the Seaboard
Subsidiaries' assets related to the Business, and all
of the issued and outstanding shares of the capital
stock of Seaboard Kentucky.
(b) Seaboard and ConAgra desire to amend the Asset
Purchase Agreement as hereinafter set forth.
AGREEMENT:
1. The parties hereby agree that the Asset Purchase
Agreement is amended as follows:
(a) Section 3.3 of the Asset Purchase Agreement is
hereby deleted and replaced in its entirety by the
following:
3.3 Payment of Purchase Price.
Three Hundred Sixty Million Dollars
($360,000,000) of the Purchase Price (the
"Preliminary Payment") shall be paid by
ConAgra as follows:
(a) $352,630,300 shall
be paid to Seaboard by wire transfer in
immediately available funds on the Closing
Date in accordance with wire transfer
instructions to be provided by Seaboard, and
(b) $7,369,700 of the Purchase Price (the
"Escrow Amount") shall be deposited with
Lawyers Title Insurance Corporation ("Escrow
Agent") to be held and disbursed pursuant to
the terms of the Escrow Agreement ("Escrow
Agreement") attached hereto as Exhibit 3.3.
The balance of the Purchase Price, if any,
shall be paid on the Settlement Date, as
defined in Section 4.7."
(b) Section 3.1 of the Asset Purchase Agreement is hereby
amended by adding the following at the end of the last
sentence:
"For purposes hereof, Seaboard's share
of any Sales Taxes, Title Insurance Fees,
Environmental Fees (including the cost of
testing with respect to the environmental
undertakings set forth on Exhibit 10.10), or
Real Estate Transfer Taxes remaining unpaid
at Closing shall be deemed a "Payable"."
(c) The last sentence of Section 6 of the Asset Purchase
Agreement is hereby deleted and replaced in its
entirety by the following:
"The Closing shall be effective as of the
open of business on the Closing Date."
(d) A new section 6.1.10 is hereby added to the Asset
Purchase Agreement by inserting the following
provision:
"6.1.10 Escrow Agreement. Execute and
deliver the Escrow Agreement."
(e) A new section 6.2.16 is hereby added to the Asset
Purchase Agreement by inserting the following
provision:
"6.2.16 Escrow Agreement. Execute and
deliver the Escrow Agreement."
(f) Section 6.3 of the Asset Purchase Agreement is hereby
deleted and replaced in its entirety by the following:
"6.3 Ancillary Documents. For purposes of
this Agreement, the term "Ancillary
Documents" shall mean the Trademark
Agreement, Assignment and Assumption
Agreement, the Bill of Sale, the Deeds, the
Lease Assignment, the Trademark Assignments,
the Developed Software License, the
Transition Services Agreement and the Escrow
Agreement."
(g) A new Section 10.11 is hereby added to the Asset
Purchase Agreement by inserting the following
provision:
"10.11 Tax-Exempt IRB'. Seaboard agrees to
pay the principal, accrued interest and
penalties (if any) of the tax-exempt
industrial revenue bonds set forth on Exhibit
10.11 (the "Tax-Exempt IRB's") on the dates
set forth on Exhibit 10.11.
(h) Section 22 of the Asset Purchase Agreement is hereby
amended by adding the following at the end of the last
sentence:
"Sales Taxes, Title Insurance Fees,
Environmental Fees and Real Estate Transfer
Taxes shall be adjusted between Seaboard and
ConAgra as set forth on the Preliminary
Settlement Statement."
(i) A new Section 10.12 is hereby added to the Asset
Purchase Agreement by inserting the following
provision:
"10.12 Capital Improvement Project Undertakings.
(a) Known Issues. Seaboard
hereby acknowledges receipt of a ConAgra
memorandum, dated December 30, 1999 (the
"Memo"), and ConAgra Poultry Company's
review of Seaboard's construction
improvement projects attached thereto
(the "Attachment"). Seaboard hereby
acknowledges ConAgra's position that
under Section 10.8 of the Agreement
Seaboard is responsible to correct and
remedy the issues detailed in the Memo
and Attachment. ConAgra in turn
acknowledges Seaboard has not conceded
responsibility for the issues detailed
in the Memo and the Attachment and the
parties agree to work together in good
faith after the Closing to address the
issues detailed in the Memo and the
Attachment in accordance with and
pursuant to Section 10.8 of the
Agreement.
(b) Rendering Press Facility.
With respect to the Capital Improvement
Project at Mayfield, Seaboard hereby
reaffirms its obligations under Section
10.8 to install and make operational at
the Mayfield, Kentucky facility a new,
one meter rendering press.
(j) A new Section 10.13 is hereby added to the Asset
Purchase Agreement by inserting the following
provision:
"10.13 DSI Water Knives. In the event
ConAgra acquires and installs a second DSI
water knife at the Chattanooga deboning
facility by January 3, 2001, Seaboard agrees
to reimburse ConAgra an amount equal to the
lesser of (a) $500,000, or (b) one-half (1/2)
of all costs, fees and expenses incurred by
ConAgra to acquire and install the second DSI
knife at the Chattanooga deboning facility.
Such payment shall be made by Seaboard upon
ConAgra's presentation of documentation
reasonably acceptable to Seaboard reflecting
ConAgra's fees, costs and expenses incurred
by ConAgra to acquire and install the second
DSI water knife at the Chattanooga facility.
2. The parties hereto reaffirm the Asset Purchase
Agreement as herein amended.
3. 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.
4. This Amendment shall be effective upon execution
hereof, provided that the amendment in Section 1(c) shall not be
effective in the event that any material Y2K issues become
apparent upon the start-up on January 3, 2000 of the plants and
facilities comprising the Business. Absent written notice to the
contrary from ConAgra to Seaboard on or before January 4, 2000,
Section 1(c) shall be deemed to be effective.
IN WITNESS WHEREOF, the parties have each executed this
Amendment Agreement on the date first above written.
SEABOARD CORPORATION, CONAGRA, INC.,
a Delaware corporation a Delaware corporation
By: /s/ Robert L. Steer By: /s/ Dwight J. Goslee
Its: Vice President and Its: Senior Vice President
Chief Financial Officer Mergers and Acquisitions
The following exhibits and schedules have been excluded from
this filing, registrant agrees to furnish supplementally a
copy of any omitted schedule to the SEC upon request:
Exhibit 10.11-Tax Exempt IRB's